SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
SPURLOCK INDUSTRIES, INC.
(Exact Name of Registrant as Specified in its Charter)
Virginia 84-1019856
(State of Incorporation (I.R.S. Employer
or Organization) Identification No.)
5090 General Mahone Highway, Waverly, Virginia 23890
(Address of principal executive offices) (Zip Code)
If this Form relates to the registration If this Form relates to the
of a class of debt securities and is registration of a class of debt
effective upon filing pursuant to securities and is to become effective
General Instruction A(c)(1) please simultaneously with the effectiveness
check the following box. [_] of a concurrent registration statement
under the Securities Act of 1933
pursuant to General Instruction
A(c)(2) please check the following
box. [_]
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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None None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, No Par Value
(Title of Class)
Item 1. Description of Registrant's Securities to be Registered
This registration statement relates to the registration under Section
12(g) of the Securities Exchange Act of 1934, as amended, of shares of the
common stock, no par value per share (the "Common Stock"), of Spurlock
Industries, Inc., a Virginia corporation (the "Registrant"). The description of
the Common Stock to be registered hereunder is set forth as follows:
Authorized and Outstanding Capital Stock
The Registrant's authorized capital stock consists of 50,000,000 shares
of Common Stock and 5,000,000 shares of preferred stock, no par value per share
(the "Preferred Stock"). On July 15, 1996, there were 6,725,066 shares of the
Common Stock and no shares of the Preferred Stock issued and outstanding. All of
the outstanding shares of the Common Stock are validly issued, fully paid and
non-assessable.
Common Stock. The holders of the Common Stock are entitled to one vote
for each share on all matters voted on by shareholders, including elections of
directors, and, except as otherwise required by law or provided in any
resolution adopted by the Board of Directors with respect to any series of the
Preferred Stock, the holders of such shares exclusively possess all voting
power. The Amended and Restated Articles of Incorporation of the Registrant (the
"Articles") do not provide for cumulative voting in the election of directors.
Subject to any preferential rights of any outstanding series of the Preferred
Stock created by the Board of Directors from time to time, the holders of the
Common Stock are entitled to such dividends as may be declared from time to time
by the Board of Directors from funds available therefor, and upon liquidation
are entitled to receive pro rata all assets of the Registrant available for
distribution to such holders.
Preferred Stock. Under the Articles, the Board of Directors, without
shareholder approval, is authorized to issue shares of the Preferred Stock in
one or more series and to designate, with respect to each such series of the
Preferred Stock, the number of shares in each such series, the dividend rates,
preferences and date of payment, whether or not dividends shall be cumulative
and, if cumulative, the date or dates from which the same shall be cumulative,
voluntary and involuntary liquidation preferences, the availability of
redemption and the prices at which it may occur, the rights, if any, and the
terms and conditions upon which shares can be converted into or exchanged for
shares of any other class or series, and the voting rights, if any. Any issued
Preferred Stock may be senior to the Common Stock as to dividends and as to
distribution in the event of liquidation, dissolution or winding up of the
Registrant. The ability of the Board of Directors to issue the Preferred Stock,
while providing flexibility in connection with possible acquisitions and other
corporate purposes, could, among other things, adversely affect the voting power
of holders of the Common Stock.
The Registrant believes that the Preferred Stock will provide the
Registrant with flexibility in structuring possible future financings and
acquisitions, and in meeting other corporate needs which might arise. Having
such authorized shares available for issuance will allow the Registrant to issue
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shares of the Preferred Stock without the expense and delay of a special
shareholders' meeting. The authorized shares of the Preferred Stock, as well as
shares of the Common Stock, will be available for issuance without further
action by shareholders, unless such action is required by applicable law or the
rules of any stock exchange or stock market on which the Registrant's securities
may be listed. Although the Board of Directors has no intention at the present
time of doing so, it could issue a series of the Preferred Stock that, subject
to certain limitations imposed by the securities laws, could impede the
completion of a merger, tender offer, takeover attempt or other transaction that
some, or a majority, of the shareholders might believe to be in their best
interests or in which shareholders might receive a premium for their stock over
the then current market price of such stock. This impediment might be
accomplished by, among other things, selling a substantial number of shares of
the Preferred Stock to persons who have an arrangement with the Registrant
concerning the voting of such shares, or by distributing shares of the Preferred
Stock, or rights to receive such shares, to the shareholders. In this respect,
certain corporations have issued as a dividend to their common stockholders
shares of preferred stock or rights to acquire shares of preferred stock having
terms designed to encourage negotiated rather than unilateral takeover proposals
and to protect against the adverse consequences of certain abusive takeover
tactics such as open market accumulation programs and partial and front-end
loaded takeovers and freezeouts. The shares of authorized Preferred Stock would
be available for such purposes, and the Board of Directors from time to time may
consider issuing shares of the Preferred Stock for such purposes. The ability to
issue shares of the Preferred Stock also would allow the Board of Directors to
issue shares only to shareholders supportive of management's position. This
ability could provide management with the means to block a business combination
considered desirable by some shareholders. In addition, the Board of Directors
could authorize the issuance of a series of the Preferred Stock that votes as a
class, either separately or with the holders of the Common Stock, on any merger,
sale or exchange of assets by the Registrant or any other extraordinary
corporate transaction. The Board of Directors will make any determination to
issue such shares based on its judgment as to the best interests of the
Registrant and its shareholders at the time of issuance.
Preemptive Rights. No holder of any share of the Common Stock or the
Preferred Stock, now or hereafter authorized, shall have any preemptive right to
subscribe to any securities of the Registrant of any kind or class.
Liability and Indemnification of Directors and Officers
As permitted by the Virginia Stock Corporation Act (the "Virginia
Act"), the Articles contain provisions which indemnify directors and officers of
the Registrant to the full extent permitted by Virginia law and seek to
eliminate the personal liability of directors and officers for monetary damages
to the Registrant or its shareholders for breach of their fiduciary duties,
except to the extent that such indemnification or elimination of liability is
prohibited by the Virginia Act. These provisions do not limit or eliminate the
rights of the Registrant or any shareholder to seek an injunction or any other
non-monetary relief in the event of a breach of a director's or officer's
fiduciary duty. In addition, these provisions apply only to claims against a
director or officer arising out of his role as a director or officer and do not
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relieve a director or officer from liability if he engaged in willful misconduct
or a knowing violation of the criminal law or any federal or state securities
law.
In addition, the Articles provide for the indemnification of both
directors and officers for expenses incurred by them in connection with the
defense or settlement of claims asserted against them in their capacities as
directors and officers. In certain cases, this right of indemnification extends
to judgments or penalties assessed against them. The Registrant may limit its
exposure to liability for indemnification of directors and officers by
purchasing directors and officers liability insurance coverage.
The purpose of these provisions is to assist the Registrant in
retaining qualified individuals to serve as directors by limiting their exposure
to personal liability for serving as such. On December 21, 1995, Air Resources
Corporation ("Air Resources"), the predecessor to the Registrant pursuant to an
Agreement and Plan of Merger, dated as of February 15, 1996, between Air
Resources and the Registrant (the "Merger Agreement"), and effective July 15,
1996 (the "Effective Date"), entered into an Indemnification Agreement with
Phillip S. Sumpter upon his appointment to the Board of Directors. The
Indemnification Agreement provides for the indemnification of Mr. Sumpter
against claims, losses, liabilities, damages, costs and expenses that he may
suffer as a result of his service as a director of Air Resources, to the full
extent that such indemnification is permitted and not prohibited by applicable
federal or state law, including securities law, or the Certificate of
Incorporation of Air Resources. The Registrant has succeeded to and assumed all
the rights and obligations of Air Resources under the Indemnification Agreement.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act), may be permitted to officers and
directors pursuant to the foregoing provisions or otherwise, the Registrant
understands that it is the opinion of the Securities and Exchange Commission
that such indemnification is against public policy as expressed in the
Securities Act and therefore unenforceable. In the event that a claim for
indemnification with respect to the capital stock of the Registrant is asserted
by an officer or a director (except for the payment of expenses incurred in the
successful defense of any claim), the Registrant, unless the question has
already been settled by controlling precedent, will submit to a court of
appropriate jurisdiction the question of whether or not such indemnification by
it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
Anti-Takeover Effects of Certain Provisions of the Articles and Bylaws
The Articles contain several provisions that will make more difficult
the acquisition of control of the Registrant by various means, such as a tender
offer or open market purchases not approved by the Board of Directors or a proxy
contest. The Bylaws of the Registrant (the "Bylaws") also contain provisions
that could have an anti-takeover effect.
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The purposes of these provisions are to discourage certain types of
non-negotiated transactions and to encourage persons seeking to acquire control
of the Registrant to consult first with the Board of Directors to negotiate the
terms of any proposed business combination or offer. The provisions are designed
to reduce the vulnerability of the Registrant to an unsolicited proposal for a
takeover that does not contemplate the acquisition of all outstanding shares or
is otherwise unfair to shareholders of the Registrant, or an unsolicited
proposal for the restructuring or sale of all or part of the Registrant.
These provisions will help ensure that the Board of Directors, if
confronted by a proposal from a third party, will have sufficient time to review
the proposal and any alternatives thereto and to act in what it believes to be
the best interests of the shareholders.
These provisions may make difficult and may discourage a merger, tender
offer or proxy fight even if such a transaction could prove favorable to the
interests of the shareholders and may delay or frustrate the assumption of
control by a holder of a large block of the Registrant's capital stock and the
removal of incumbent management, even if such removal might be beneficial to
shareholders. Furthermore, these provisions may deter or could be utilized to
frustrate a future takeover attempt which is not approved by the incumbent Board
of Directors, but which the holders of a majority of the shares may deem to be
in their best interests or in respect of which shareholders may receive a
substantial premium for their stock over prevailing market prices of such stock.
By discouraging takeover attempts, these provisions might have the incidental
effect of inhibiting certain changes in management (some or all of the members
of which might be replaced in the course of a change of control) and also the
temporary fluctuations in the market price of stock which often result from
actual or rumored takeover attempts.
Set forth in the following sections are descriptions of such provisions
of the Articles and Bylaws. Capitalized terms used and not defined herein are
defined in the Articles or Bylaws, as the case may be.
Classified Board of Directors
The Articles provide that, commencing with the first shareholders'
meeting at which directors are elected, the Board of Directors shall be divided
into three classes, as nearly equal in number as is reasonably possible, with
one class of directors serving until the 1997 annual meeting, one class serving
until the 1998 annual meeting, and one class serving until the 1999 annual
meeting of the Registrant's shareholders. Beginning with the 1997 annual meeting
of shareholders, one class of directors will be elected each year for a
three-year term.
The Registrant believes that a classified board of directors will help
to assure the continuity and stability of the Board of Directors and the
Registrant's business strategies and policies as determined by the Board of
Directors because generally a majority of the directors at any given time will
have had prior experience as directors of the Registrant. The classification of
directors also will have the effect of making it more difficult for shareholders
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to change the composition of the Board of Directors in a relatively short period
of time. At least two annual meetings of shareholders, instead of one, will
generally be required to effect a change in a majority of the Board of
Directors. Such a delay may help ensure that the Board of Directors, if
confronted by a shareholder conducting a proxy contest or an extraordinary
corporate transaction, will have sufficient time to review the proposal and any
alternatives to the proposal and to act in what it believes is the best
interests of the shareholders.
Number of Directors; Vacancies and Removal
The Articles provide that the Board of Directors will consist of not
less than three nor more than eleven directors, and the exact number of
directors will be determined from time to time by resolution adopted by a
majority of the total number of directors which the Registrant would have if
there were no vacancies (the "Whole Board") or by the affirmative vote of at
least eighty percent (80%) of the votes entitled to be cast by the Voting Stock.
In addition, the Articles provide that, subject to any rights of the holders of
the Preferred Stock, only a majority of the Board of Directors then in office
shall have the authority to fill any newly created directorships resulting from
any increase in the authorized number of directors or any vacancies on the Board
of Directors resulting from death, resignation, retirement, disqualification,
removal from office or other cause. Accordingly, the Board of Directors could
prevent any shareholder from obtaining majority representation on the Board of
Directors by enlarging the Board of Directors and filling the new directorships
with its own nominees.
Moreover, the Articles provide, subject to any rights of the holders of
any class or series of the Preferred Stock, that directors may be removed only
for cause and only by the affirmative vote of holders of at least eighty percent
(80%) of the votes entitled to be cast by the Voting Stock. The term "Voting
Stock" is defined in the Articles to mean the outstanding shares of all classes
and series of capital stock of the Registrant entitled to vote on a matter and
voting together as a single voting group. This provision, when coupled with the
provision of the Articles authorizing only the Board of Directors to fill vacant
directorships, will preclude shareholders from removing incumbent directors
without cause and filling the vacancies created by such removal with their own
nominees.
Limitations on Shareholder Action by Written Consent; Special Meetings
The Virginia Act permits shareholder action by written consent in lieu
of a meeting only when consents are obtained from all of the shareholders who
would be entitled to vote on the matter at a shareholders meeting. In the
absence of unanimous written consent, shareholder action may be taken only at an
annual or special meeting of shareholders. The Articles provide that, subject to
the rights of holders of any class or series of the Preferred Stock, special
meetings of shareholders may be called only by the Chairman of the Board or by
the Board of Directors pursuant to a resolution adopted by a majority of the
Whole Board and may not be called by the shareholders. The business permitted to
be conducted at any special meeting of shareholders is limited to the business
brought before the meeting by or at the direction of the Board of Directors.
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The provisions of the Virginia Act restricting shareholder action by
written consent may have the effect of delaying consideration of a shareholder
proposal until the next annual meeting unless a special meeting is called by the
Chairman of the Board or a majority of the Whole Board. Moreover, a shareholder
could not force shareholder consideration of a proposal over the opposition of
the Board of Directors by calling a special meeting of shareholders prior to the
time that the Board of Directors believed such consideration to be appropriate.
Advance Notice Provision for Shareholder Proposals and Shareholder Nominations
of Directors
The Bylaws establish an advance notice procedure with regard to the
nomination, other than by or at the direction of the Board of Directors, of
candidates for election as directors (the "Nomination Procedure") and with
regard to matters to be brought before an annual meeting of shareholders at the
request of a shareholder (the "Business Procedure").
The Nomination Procedure provides that only persons who are nominated
by, or at the direction of, the Board of Directors, or by a shareholder who has
given timely prior written notice to the Secretary of the Registrant prior to
the meeting at which directors are to be elected, will be eligible for election
as directors. The Business Procedure provides that at an annual meeting, and
subject to any other applicable requirements, only such business may be
conducted as has been brought before the meeting by, or at the direction of, the
Board of Directors or by a shareholder who has given timely prior written notice
to the Secretary of the Registrant of such shareholder's intention to bring such
business (which business must otherwise be a proper matter for shareholder
action) before the meeting. In the case of the annual meeting, notice to be
timely must be received by the Registrant not later than the close of business
on the 60th day nor earlier than the close of business on the 90th day prior to
the first anniversary of the preceding year's annual meeting. In the case of a
special meeting or of an annual meeting that is more than 30 days before or more
than 60 days after the anniversary date of the preceding year's annual meeting,
notice to be timely must be received by the Registrant not earlier than the
close of business on the 90th day prior to such meeting and not later than the
close of business on the later of the 60th day prior to such meeting or the 10th
day following the date on which public announcement is first made of the date of
the meeting by the Registrant.
Under the Nomination Procedure, notice to the Registrant from a
shareholder who proposes to nominate a person at a meeting for election as a
director must contain certain information about that person, including name,
age, principal occupation, the class and number of shares of the Registrant's
capital stock beneficially owned, such person's consent to be nominated and such
other information as would be required to be included in a proxy statement
soliciting proxies for the election of the proposed nominee in an election
contest, and certain information about the shareholder proposing to nominate
that person. Under the Business Procedure, notice relating to the conduct of
business other than the nomination of directors at an annual meeting must
contain certain information about such business and about the shareholder who
proposes to bring the business before the meeting, including a brief description
of the business the shareholder proposes to bring before the meeting, the
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reasons for conducting such business at the meeting and any material interest of
such shareholder in the business so proposed. In addition, a shareholder giving
notice pursuant to these provisions of the Bylaws must provide the name and
address of such shareholder and of any beneficial owner on whose behalf the
nomination or proposal is made and the class and number of shares of the
Registrant's capital stock which are owned beneficially and of record by such
shareholder and such beneficial owner. If the Chairman of the Board or other
officer presiding at a meeting determines that a person was not nominated in
accordance with the Nomination Procedure, such person will not be eligible for
election as a director, or if he determines that other business was not properly
brought before such meeting in accordance with the Business Procedure, such
business will not be conducted at such meeting. Nothing in the Nomination
Procedure or the Business Procedure will preclude discussion by any shareholder
of any nomination or business properly made or brought before the meeting in
accordance with the above-mentioned procedures.
By requiring advance notice of nominations by shareholders, the
Nomination Procedure affords the Board of Directors a meaningful opportunity to
consider the qualifications of the proposed nominees and, to the extent deemed
necessary or desirable by the Board of Directors, to inform shareholders about
such qualifications. By requiring advance notice of proposed business, the
Business Procedure provides a more orderly procedure for conducting annual
meetings of shareholders and, to the extent deemed necessary or desirable by the
Board of Directors, provides the Board of Directors with a meaningful
opportunity to inform shareholders, prior to such meetings, of any business
proposed by a shareholder to be conducted at such meetings, together with any
recommendations as to the Board of Directors' position or belief as to action to
be taken with respect to such business. The Bylaws may have the effect of
precluding a nomination for the election of directors or precluding the conduct
of business at a particular meeting if the proper procedures are not followed,
and may discourage or deter a third party from conducting a solicitation of
proxies to elect its own slate of directors or otherwise attempting to obtain
control of the Registrant, even if the conduct of such solicitation or such
attempt might be believed by a shareholder to be beneficial to the Registrant
and its shareholders.
Transactions with Certain Interested Shareholders
Provisions of the Articles. Article VII of the Articles ("Article VII")
provides that the affirmative vote of the holders of at least eighty percent
(80%) of the votes entitled to be cast by the Voting Stock shall be required for
the approval of transactions with certain interested shareholders. Such
supermajority approval would be required for (i) a merger or consolidation
involving any person or entity who directly or indirectly owns or controls ten
percent (10%) or more of the votes entitled to be cast by the Voting Stock (an
"Interested Shareholder") at the record date for determining shareholders
entitled to vote on such merger or consolidation or (ii) a sale, lease or
exchange of substantially all of the Registrant's assets and property to or with
an Interested Shareholder, or a sale, lease or exchange of substantially all of
the assets and property of an Interested Shareholder to or with the Registrant.
In addition, Article VII provides that the same 80% vote shall be required for
the approval of certain transactions, including a reclassification of
securities, recapitalization, share exchange or other transaction designed to
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decrease the number of holders of the Common Stock remaining after any person or
entity has become an Interested Shareholder. Notwithstanding the foregoing, the
supermajority approval requirement will not apply to any transaction that is
approved by the Board of Directors prior to the time that the Interested
Shareholder becomes an Interested Shareholder.
For purposes of Article VII, a person or entity shall not be deemed to
be an Interested Shareholder if (i) on the Effective Date of the Merger
Agreement, such person or entity was the beneficial owner of shares representing
10% or more of the votes entitled to be cast by the Voting Stock or (ii) such
person or entity became the beneficial owner of such shares as a result of
acquiring shares from a person or entity specified in (i) above by gift,
testamentary bequest or the laws of descent and distribution and who has
continued thereafter to be the beneficial owner of shares representing 10% or
more of the votes entitled to be cast by the Voting Stock. The effect of this
provision is to permit shareholders who will beneficially own more than 10% of
the Common Stock on the Effective Date of the Merger Agreement to effect
transactions with the Registrant without compliance with the supermajority
voting requirement of Article VII.
Provisions of the Virginia Act. The Virginia Act contains provisions
governing "Affiliated Transactions" designed to deter certain coercive two-tier
takeovers of Virginia corporations. Affiliated Transactions include certain
mergers and share exchanges, material dispositions of corporate assets not in
the ordinary course of business, any dissolution of the corporation proposed by
or on behalf of an Interested Shareholder (as defined below), or
reclassifications, including reverse stock splits, recapitalizations or mergers
of the corporation with its subsidiaries which have the effect of increasing the
percentage of voting shares beneficially owned by an Interested Shareholder by
more than 5%. For purposes of the Virginia Act, an Interested Shareholder is
defined as any beneficial owner of more than 10% of any class of the voting
securities of a Virginia corporation.
Subject to certain exceptions discussed below, the provisions governing
Affiliated Transactions require that, for three years following the date upon
which any shareholder becomes an Interested Shareholder, a Virginia corporation
cannot engage in an Affiliated Transaction with such Interested Shareholder
unless approved by the affirmative vote of the holders of two-thirds of the
outstanding shares of the corporation entitled to vote, other than the shares
beneficially owned by the Interested Shareholder, and by a majority (but not
less than two) of the "Disinterested Directors." A Disinterested Director means,
with respect to a particular Interested Shareholder, a member of a corporation's
board of directors who (i) was a member before the later of January 1, 1988 and
the date on which an Interested Shareholder became an Interested Shareholder and
(ii) was recommended for election by, or was elected to fill a vacancy and
received the affirmative vote of, a majority of the Disinterested Directors then
on the corporation's board of directors. At the expiration of the three-year
period, these provisions require approval of Affiliated Transactions by the
affirmative vote of the holders of two-thirds of the outstanding shares of the
corporation entitled to vote, other than those beneficially owned by the
Interested Shareholder.
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The principal exceptions to the special voting requirement apply to
Affiliated Transactions occurring after the three-year period has expired and
require either that the transaction be approved by a majority of the
Disinterested Directors or that the transaction satisfy certain fair price
requirements of the statute. In general, the fair price requirements provide
that the shareholders must receive the highest per share price for their shares
as was paid by the Interested Shareholder for his shares or the fair market
value of their shares, whichever is higher. The fair price requirements also
require that, during the three years preceding the announcement of the proposed
Affiliated Transaction, all required dividends have been paid and no special
financial accommodations have been accorded the Interested Shareholder, unless
approved by a majority of the Disinterested Directors.
None of the foregoing limitations and special voting requirements
applies to an Affiliated Transaction with an Interested Shareholder whose
acquisition of shares making such a person an Interested Shareholder was
approved by a majority of the Disinterested Directors.
The provisions of the Virginia Act governing Affiliated Transactions
are inapplicable to transactions with the Registrant until the Registrant has
more than 300 shareholders of record. In addition, the Affiliated Transactions
provisions provide that, by affirmative vote of a majority of the voting shares
other than shares owned by any Interested Shareholder, a corporation may adopt,
by meeting certain voting requirements, an amendment to its articles of
incorporation or bylaws providing that the Affiliated Transactions provisions
shall not apply to the corporation.
The Registrant has not adopted such an amendment.
Control Share Acquisitions
The Virginia Act contains provisions regulating certain "control share
acquisitions," which are transactions causing the voting strength of any person
acquiring beneficial ownership of shares of a public corporation in Virginia to
meet or exceed certain threshold percentages (20%, 331/3% or 50%) of the total
votes entitled to be cast for the election of directors. Shares acquired in a
control share acquisition have no voting rights unless granted by a majority
vote of all outstanding shares other than those held by the acquiring person or
any officer or employee director of the corporation. The acquiring person may
require that a special meeting of the shareholders be held to consider the grant
of voting rights to the shares acquired in the control share acquisition. If the
acquiring person's shares are not accorded voting rights (or if no request for a
special meeting is made by an acquiror), the corporation may, if authorized by
its charter and bylaws prior to the control share acquisition, purchase the
acquiring person's shares at their cost to the acquiring person. Article VIII of
the Articles authorizes the repurchase of any acquiring person's shares that are
not accorded voting rights under the control share provisions of the Virginia
Act. If voting rights are approved and the acquiring person controls fifty
percent (50%) or more of the voting power, all shareholders other than the
acquiring person have dissenters' rights which enable them to receive the "fair
value" of their shares. "Fair value" is not less than the highest price paid in
the control share acquisition. The Virginia Act permits corporations to opt-out
of its provisions by adopting a bylaw or charter provision prior to a control
share acquisition stating that the control share provisions of the Virginia Act
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shall not apply. The Articles and Bylaws do not contain a provision opting-out
of the control share provisions of the Virginia Act. The provisions of the
Virginia Act relating to "control share acquisitions" are inapplicable to a
corporation until it has more than 300 shareholders.
Other Applicable Shareholder Voting Requirements
In general, under current provisions of the Virginia Act, most mergers,
share exchanges, sales of substantially all of the assets and reclassifications
of securities or plans for the dissolution of a corporation must be approved by
the board of directors and by the vote of the holders of more than two-thirds of
the outstanding shares entitled to vote thereon, unless the corporation's
articles of incorporation provide for a higher or lower (but not less than a
majority) vote. The Articles provide that such transactions require the approval
of only a majority of the votes entitled to be cast by the Voting Stock, unless
Article VII of the Articles or Article 14 of the Virginia Act (Affiliated
Transactions) impose a higher requirement. Under the Articles, the holder of
each outstanding share of the Common Stock is entitled to one vote per share on
all such matters.
Amendment of Certain Provisions of the Articles and Bylaws
The Articles require the affirmative vote of the holders of at least
eighty percent (80%) of the votes entitled to be cast by the Voting Stock to
amend certain provisions of the Articles (including the provisions discussed
above under "Classified Board of Directors;" "Number of Directors; Vacancies and
Removal;" "Limitations on Shareholder Action by Written Consent; Special
Meetings;" and "Transactions with Certain Interested Shareholders"). The
Articles and Bylaws also require an 80% vote of the shareholders to amend the
Bylaws. The Bylaws may also be amended by the Board of Directors. These
provisions will make it more difficult for shareholders to make changes in the
Articles and Bylaws, including changes designed to facilitate the exercise of
control over the Registrant. In addition, the requirement for approval by at
least an 80% shareholder vote will enable the holders of a minority of the
Registrant's capital stock to prevent holders of a less-than-80% majority from
amending such provisions of the Articles and Bylaws.
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Item 2. Exhibits
I. 4.1 Amended and Restated Articles of Incorporation of the Registrant
4.2 Bylaws of the Registrant
II. Not applicable.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
SPURLOCK INDUSTRIES, INC.
Date: July 26, 1996 By: /s/ H. Norman Spurlock, Jr.
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H. Norman Spurlock, Jr.
Vice President and Secretary
EXHIBIT INDEX
Number Exhibit
4.1 Amended and Restated Articles of Incorporation of the Registrant
4.2 Bylaws of the Registrant