Exhibit 4.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
SPURLOCK INDUSTRIES, INC.
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ARTICLE I
Name
The name of the Corporation is Spurlock Industries, Inc.
ARTICLE II
Purpose
The purpose of the Corporation shall be to engage in any lawful act or
activity for which corporations may be incorporated under the Virginia Stock
Corporation Act, as amended from time to time (the "VSCA").
ARTICLE III
Authorized Shares
The total number of shares of all classes of capital stock which the
Corporation shall have authority to issue is 55,000,000, of which 50,000,000
shares shall be Common Stock, no par value (the "Common Stock"), and 5,000,000
shares shall be Preferred Stock, no par value (the "Preferred Stock").
A. Common Stock. Except as otherwise provided in the VSCA or in
these Articles of Incorporation as they may be hereafter amended (these
"Articles"), each share of Common Stock shall be entitled to one vote on all
matters submitted to a vote at any meeting of shareholders, and the exclusive
general voting power of shareholders for all purposes shall be vested therein.
B. Preferred Stock.
1. The Preferred Stock may be issued from time to time
in one or more classes or series, with such designations, rights and preferences
as shall be stated and expressed herein or in the resolution or resolutions
authorizing the issue of shares of a particular class or series. The Board of
Directors, by adoption of an amendment to these Articles, is expressly
authorized to fix:
(a) The annual or other periodic dividend rate for
such class or series, the dividend payment dates, the date from which dividends
on all shares of such class or series issued shall be cumulative, and the extent
of participation rights, if any;
(b) The redemption price or prices, if any, for
such class or series and other terms and conditions on which such class or
series may or shall be retired and redeemed;
(c) The designation and maximum number of shares
of such class or series issuable;
(d) The right to vote, if any, with holders of
shares of any other class or series and the right to vote, if any, as a separate
voting group, either generally or as a condition to specified corporate action;
(e) The amounts payable upon shares in the event
of voluntary or involuntary liquidation;
(f) The rights, if any, of the holders of shares of
such class or series to convert such shares into other classes or series and the
terms and conditions of any such conversion; and
(g) Such other rights and/or preferences as may be
specified by the Board of Directors and not prohibited by law.
C. No Preemptive Rights. No holder of shares of the Corporation
of any class, now or hereafter authorized, shall as such holder have any
preemptive right to subscribe to, purchase, or receive any shares of the
Corporation of any class, now or hereafter authorized, or any rights or options
to subscribe to or purchase any such shares or other securities convertible into
or exchangeable for or carrying rights or options to purchase shares of any
class or other securities, which may at any time be issued, sold, or offered
for sale by the Corporation or subjected to rights or options to purchase
granted by the Corporation.
D. Voting Requirements.
1. Except as otherwise provided in these Articles or
required by the VSCA, the outstanding shares of all classes and series of
capital stock of the Corporation entitled to vote on a matter (the "Voting
Stock") shall be counted together to determine if a quorum of such shares exists
and shall vote together as a single voting group.
2. Except as otherwise provided in Article 14
(Affiliated Transactions) of the VSCA or in these Articles, any corporate
action, except the election of directors, shall for each voting group entitled
to vote on the matter be approved at a meeting of shareholders at which a quorum
of the voting group is present if the votes cast in favor of the action exceed
the votes cast against the action.
3. Except as otherwise provided in these Articles,
directors shall be elected by a plurality of the votes cast by the shares
entitled to vote in the election at a meeting of shareholders at which a quorum
is present.
4. Except as is otherwise provided in Article 14
(Affiliated Transactions) of the VSCA or these Articles, if a shareholder vote
is required under the VSCA, any (i) amendment of the Articles (ii) merger or
share exchange to which the Corporation is a party, (iii) sale, lease, or
exchange of all or substantially all of the Corporation's assets and property
other than in the usual and regular course of business, or (iv) reclassification
of securities or recapitalization of the Corporation, shall be approved by the
affirmative vote of the holders of a majority of the votes entitled to be cast
by the Voting Stock at a meeting of shareholders duly called for such purpose.
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ARTICLE IV
Board of Directors
A. Number, Election and Term of Directors. The business and
affairs of the Corporation shall be managed by or under the direction of a
Board of Directors consisting of not less than three nor more than eleven
directors, the exact number of directors to be determined from time to time by
resolution adopted by a majority of the total number of directors which the
Corporation 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. Commencing with the first shareholders' meeting at
which directors are elected, the directors, other than those who may be elected
by the holders of any class or series of Preferred Stock under specified
circumstances, shall be divided, with respect to the time for which they
severally hold office, into three classes, as nearly equal in number as
reasonably possible, with the term of office of the first class to expire at the
1997 annual meeting of shareholders, the term of office of the second class to
expire at the 1998 annual meeting of shareholders, and the term of office of the
third class to expire at the 1999 annual meeting of shareholders, with each
director to hold office until his successor shall have been duly elected and
qualified. At each annual meeting of shareholders, commencing with the 1997
annual meeting, (i) directors elected to succeed those directors whose terms
then expire shall be elected for a term of office to expire at the third
succeeding annual meeting of shareholders after their election, with each
director to hold office until his successor shall have been duly elected and
qualified, and (ii) if authorized by a resolution of the Board of Directors,
directors may be elected to fill any vacancy on the Board of Directors,
regardless of how such vacancy shall have been created.
B. Shareholder Nomination of Director Candidates; Introduction of
Business. Advance notice of shareholder nominations for the election of
directors and of business to be brought by shareholders before any meeting of
the shareholders of the Corporation shall be given in the manner provided in the
Bylaws of the Corporation.
C. Newly Created Directorships and Vacancies. Subject to
applicable law and to the rights of the holders of any class or series of
Preferred Stock with respect to such class or series of Preferred Stock, and
unless the Board of Directors otherwise determines, 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 shall be filled
only by a majority vote of the directors then in office, though less than a
quorum, and a director so chosen shall hold office for a term expiring at the
next meeting of shareholders at which directors are elected and until his
successor shall have been duly elected and qualified. No decrease in the number
of authorized directors constituting the entire Board of Directors shall shorten
the term of any incumbent director.
D. Removal. Subject to the rights of the holders of any class or
series of Preferred Stock with respect to such class or series of Preferred
Stock, any director, or the entire Board of Directors, may be removed from
office at any time, but only for cause and only by the affirmative vote of the
holders of at least eighty percent (80%) of the votes entitled to be cast by the
Voting Stock.
E. Amendment, Repeal or Alteration. Notwithstanding any other
provision of these Articles or any provision of law which might otherwise permit
a lesser vote or no vote, but in addition to any affirmative vote of the holders
of any particular class or series of the capital stock required by law or these
Articles, 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 to alter,
amend or repeal this Article IV.
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ARTICLE V
Amendment, Repeal or Alteration of Bylaws
In furtherance and not in limitation of the powers conferred by law,
the Board of Directors is expressly authorized to make, alter, amend and repeal
the Bylaws of the Corporation, subject to the power of the holders of the
capital stock of the Corporation to alter, amend or repeal the Bylaws; provided,
however, that, with respect to the powers of the holders of capital stock to
alter, amend and repeal the Bylaws of the Corporation, notwithstanding any other
provision of these Articles or any provision of law which might otherwise permit
a lesser vote or no vote, but in addition to any affirmative vote of the holders
of any particular class or series of the capital stock of the Corporation
required by law or these Articles, 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 to (i) alter, amend or repeal any provision of the Bylaws, or
(ii) alter, amend or repeal any provision of this Article V.
ARTICLE VI
Special Meetings of Shareholders
Subject to the rights of the holders of any class or series of
Preferred Stock with respect to such class or series of Preferred Stock, special
meetings of shareholders of the Corporation 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. Notwithstanding any other provision of these
Articles or any provision of law which might otherwise permit a lesser vote or
no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the capital stock of the Corporation required by
law or these Articles, 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 to alter, amend or repeal this Article VI.
ARTICLE VII
Interested Shareholder Transactions
In the event that the holders of the capital stock of the Corporation
are entitled to vote on (i) a merger or consolidation with any Person (as
hereinafter defined) or on a proposal that the Corporation sell, lease or
exchange substantially all of its assets and property to or with any Person or
that any Person sell, lease or exchange substantially all of its assets and
property to or with the Corporation, and such Person is the Beneficial Owner (as
hereinafter defined) of shares representing 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 or (ii) any
reclassification of securities, recapitalization, share exchange or other
transaction (except redemptions permitted by the terms of the security redeemed
or repurchases of the securities for cancellation or the Corporation's treasury)
designed to decrease the number of holders of the Corporation's Common Stock
remaining after any Person has become an Interested Shareholder, 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 any such action,
in addition to any other approval that may be required by law or these Articles,
provided, however, that the foregoing shall not apply to any such merger,
consolidation, sale, lease or exchange of assets and property or such
reclassification, recapitalization, share exchange or other transaction which
was approved by resolutions of the Board of Directors of the Corporation prior
to the time that any Person becomes an Interested Shareholder or, in the case of
any merger, consolidation, sale, lease or exchange involving a particular
Interested Shareholder, prior to the time such Interested Shareholder became an
Interested Shareholder.
For the purpose hereof, a Person shall be deemed not to be an
Interested Shareholder if (i) on the effective date of the certificate of merger
between the Corporation and Air Resources Corporation, a Colorado corporation,
such Person was the Beneficial Owner of shares representing ten percent (10%) or
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more of the votes entitled to be cast by the Voting Stock, or (ii) such Person
became the Beneficial Owner of such shares as a result of acquiring shares from
a Person specified in (i) by gift, testamentary bequest or the laws of descent
and distribution or in a transaction in which consideration was not exchanged
and who has continued thereafter to be the Beneficial Owner of shares
representing ten percent (10%) or more of the votes entitled to be cast by the
Voting Stock, or who would have so continued but for the unilateral action of
the Corporation.
A "Person" shall mean any corporation, partnership, association, trust
(other than any trust holding stock of the employees of the Corporation pursuant
to any stock purchase, ownership or employee benefit plan of the Corporation),
business entity, estate or individual or any Affiliate (as hereinafter defined)
of any of the foregoing. An "Affiliate" shall mean any corporation, partnership,
association, trust, business entity, estate or individual who, directly or
indirectly, through one or more intermediaries, controls, or is controlled by,
or is under common control with, a Person. "Control" shall mean the possession,
directly or indirectly, of power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract, or otherwise.
A Person shall be deemed to be the "Beneficial Owner" of shares if such
Person has the sole or shared power to dispose or direct the disposition of such
shares, or the sole or shared power to vote or direct the voting of such shares,
or the sole or shared power to acquire such shares, including any such power
which is not immediately exercisable, whether such power is direct or indirect
or through any contract, arrangement, understanding, relationship or otherwise.
A Person shall not be deemed to be a Beneficial Owner of shares tendered
pursuant to a tender or exchange offer made by such Person until the tendered
shares are accepted for purchase or exchange. A Person shall not be deemed to be
a Beneficial Owner of shares as to which such person may exercise voting power
solely by virtue of a revocable proxy conferring the right to vote. A member of
a national securities exchange shall not be deemed to be a Beneficial Owner of
shares held directly by it on behalf of another person solely because such
member is the record holder of such shares and, pursuant to the rules of such
exchange, may direct the vote of such shares, without instructions, on other
than contested matters or matters that may affect substantially the rights or
privileges of the holders of the shares to be voted but is otherwise precluded
by the rules of such exchange from voting without instructions.
Notwithstanding any other provisions of these Articles or any provision
of law which might otherwise permit a lesser vote or no vote, but in addition to
any affirmative vote of the holders of any particular class or series of the
Voting Stock required by law or these Articles, 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 to alter, amend or repeal this Article VII.
ARTICLE VIII
Control Share Acquisitions
In the event that any acquiring person (an "Acquiring Person") as
defined in Section 13.1-728.1 of the VSCA, either (i) fails to comply with the
provisions of Section 13.1-728.4 of the VSCA or (ii) fails to obtain the
approval of the shareholders of the Corporation at any meeting held pursuant to
Section 13.1-728.5 of the VSCA, then the Corporation shall have authority, upon
approval by resolution of the Board of Directors, to call for redemption, at
anytime within sixty (60) days after the last acquisition of any such shares by
such Acquiring Person or the date of such meeting, as the case may be, and
thereafter to redeem on such date within such 60-day period as may be specified
in such resolution (the "Redemption Date") all shares of Voting Stock of the
Corporation theretofore acquired by the Acquiring Person in a control share
acquisition (as defined in Section 13.1-728.1 of the VSCA) and then owned
beneficially by such Acquiring Person, as such number of shares may be either
(i) shown on any control share acquisition statement or any statement or report
filed by the Acquiring Person with the Securities and Exchange Commission under
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the Securities Exchange Act of 1934, as amended, or (ii) otherwise determined by
the Board of Directors. The redemption price shall be paid in cash on the
Redemption Date against delivery at the principal office of the Corporation of
certificates evidencing the shares so redeemed.
All determinations by the Board of Directors as to (i) the status of
any person as an Acquiring Person under the VSCA, (ii) the number of shares of
the Corporation owned by such Acquiring Person, (iii) the timeliness of
compliance by an Acquiring Person within Section 13.1-728.4 of the VSCA, or (iv)
the interpretation of the VSCA or this Article VIII if made in good faith, shall
be conclusive and binding on all persons.
ARTICLE IX
Limitation of Liability and Indemnification
A. Limitation of Liability. To the full extent that the VSCA
permits the limitation or elimination of the liability of directors or officers,
a director or officer of the Corporation shall not be liable to the Corporation
or its shareholders for any monetary damages.
B. Mandatory Indemnification. The Corporation shall indemnify
a director or officer of the Corporation who is or was a party to any proceeding
by reason of the fact that he is or was such a director or officer or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other profit or nonprofit enterprise against all liabilities and
expenses incurred in the proceeding, except such liabilities and expenses as are
incurred because of his willful misconduct or knowing violation of the criminal
law. Unless a determination has been made that indemnification is not
permissible, the Corporation shall make advances and reimbursements for expenses
incurred by a director or officer in a proceeding upon receipt of an undertaking
from him to repay the same if it is ultimately determined that he is not
entitled to indemnification. Such undertaking shall be an unlimited, unsecured
general obligation of the director or officer and shall be accepted without
reference to his ability to make repayment. The Board of Directors is hereby
empowered, by majority vote of a quorum of disinterested directors, to contract
in advance to indemnify and advance the expenses of any director or officer.
C. Permissive Indemnification. The Board of Directors is hereby
empowered, by majority vote of a quorum of disinterested directors, to cause the
Corporation to indemnify or contract in advance to indemnify any person not
specified in Section B of this Article IX who was or is a party to any
proceeding, by reason of the fact that he is or was an employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other profit or nonprofit enterprise,
to the same extent as if such person was specified as one to whom
indemnification is granted in Section B.
D. Insurance. The Corporation may purchase and maintain insurance
to indemnify it against the whole or any portion of the liability assumed by it
in accordance with this Article IX and may also procure insurance, in such
amounts as the Board of Directors may determine, on behalf of any person who is
or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other profit or non-profit enterprise, against any liability
asserted against or incurred by such person in any such capacity or arising from
his status as such, whether or not the Corporation would have power to indemnify
him against such liability under the provisions of this Article IX.
E. Special Legal Counsel. In the event there has been a change
in the composition of a majority of the Board of Directors after the date of the
alleged act or omission with respect to which indemnification is claimed, any
determination as to indemnification and advancement of expenses with respect to
any claim for indemnification made pursuant to Section B of this Article IX
shall be made by special legal counsel agreed upon by the Board of Directors and
the proposed indemnitee. If the Board of Directors and the proposed indemnitee
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are unable to agree upon such special legal counsel, the Board of Directors and
the proposed indemnitee each shall select a nominee, and the nominees shall
select such special legal counsel.
F. Indemnitee's Rights. The provisions of this Article IX shall
be applicable to all actions, claims, suits or proceedings commenced after the
adoption hereof, whether arising from any action taken or failure to act before
or after such adoption. No amendment, modification or repeal of this Article IX
shall diminish the rights provided hereby or diminish the right to
indemnification with respect to any claim, issue or matter in any other pending
or subsequent proceeding that is based in any material respect on any alleged
action or failure to act prior to such amendment, modification or repeal.
G. Additional Indemnitees. Reference herein to directors,
officers, employees or agents shall include former directors, officers,
employees and agents and their respective heirs, executors and administrators.
ARTICLE X
Reservation of Rights
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in these Articles, and any other provisions authorized
by the laws of the Commonwealth of Virginia at the time in force may be added or
inserted, in the manner now or hereafter provided herein or by statute. All
rights, preferences and privileges of whatsoever nature conferred upon
shareholders, directors or any other persons whomsoever by these Articles in
their present form, or as amended, are granted subject to the rights reserved in
this Article X.
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