Use these links to rapidly review the document
TABLE OF CONTENTS

Table of Contents

As filed with the Securities and Exchange Commission on June 5, 2020

Registration No. 333-        


UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549



FORM S-3
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933



CORE-MARK HOLDING COMPANY, INC.
(Exact name of registrant as specified in its charter)

Delaware
(State or other jurisdiction of
incorporation or organization)
  20-1489747
(I.R.S. Employer
Identification Number)

1500 Solana Boulevard, Suite 3400
Westlake, Texas 76262
(940) 293-8600

(Address, including zip code, and telephone number, including area code, of registrants' principal executive offices)



Scott E. McPherson
President, Chief Executive Officer and Director
Core-Mark Holding Company, Inc.
1500 Solana Boulevard, Suite 3400
Westlake, Texas 76262
(940) 293-8600

(Name, address, including zip code, and telephone number, including area code, of agent for service)



Copies to:

Craig W. Adas
Weil, Gotshal & Manges LLP
201 Redwood Shores Parkway
Redwood Shores, California 94065
(650) 802-3000



             Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement as determined by the Registrants.

             If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.    o

             If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.    ý

             If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.    o

             If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.    o

             If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.    ý

             If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.    o

             Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer," "smaller reporting company," and "emerging growth company" in Rule 12b-2 of the Exchange Act.

Large accelerated filer ý   Accelerated filer o   Non-accelerated filer o   Smaller reporting company o

Emerging growth company o

             If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for companying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. o



CALCULATION OF REGISTRATION FEE

   
 
Title of Each Class of Securities
to be Registered

  Amount to be Registered Proposed Maximum Offering
Price Per Unit Proposed Maximum Aggregate Offering
Price Amount of Registration Fee(1)(2)

 

Common Stock, par value $0.01 per share(3)

   
 

Debt Securities(4)

   
 

Guarantees(5)

   
 

Warrants(6)

   
 

Share Purchase Contracts(7)

   
 

Units(8)

   

 

(1)
An indeterminate aggregate offering price and number or amount of securities of each identified class is being registered as may from time to time be offered and sold at indeterminate prices. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities. In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933 (the "Securities Act"), the registrants are deferring payment of all of the registration fee.

(2)
Includes such indeterminate amounts of securities as may be issued upon exercise, conversion or exchange of, or pursuant to anti-dilution adjustments with respect to, any securities that provide for that issuance or adjustment. Also includes such indeterminate amount as may be issued in units. Separate consideration may not be received for any of these securities.

(3)
Represents common stock issued by Core-Mark Holding Company, Inc.

(4)
Represents debt securities issued by Core-Mark Holding Company, Inc.

(5)
Pursuant to Rule 457(n) under the Securities Act, no separate registration fee is due for guarantees.

(6)
Represents warrants of Core-Mark Holding Company, Inc., representing the right to purchase an indeterminate number of common stock or amount of debt securities, each of which are registered hereby.

(7)
Represents share purchase contracts of Core-Mark Holding Company, Inc., representing the obligation to purchase an indeterminate number of common stock of Core-Mark Holding Company, Inc., which are registered hereby.

(8)
Any securities registered hereunder may be sold separately or as units with other securities registered hereunder.


Table of Contents


Table of Additional Registrant Guarantors

Name
  State of jurisdiction of
incorporation or
organization
  IRS Employer
Identification Number
 

Core-Mark International, Inc. 

  Delaware     91-1295550  

Core-Mark Midcontinent, Inc. 

  Arkansas     74-2354997  

Core-Mark Interrelated Companies, Inc. 

  California     94-2317385  

Core-Mark Distributors, Inc. 

  Georgia     58-1095258  

        The address, including zip code, and telephone number, including area code, of the principal executive office of each Additional Registrant Guarantor listed in the table above is the same as that of Core-Mark Holding Company, Inc. The name, address, including zip code, and telephone number, including area code, of agent for service of each Additional Registrant Guarantor listed in the table above is the same as that of Core-Mark Holding Company, Inc.




Table of Contents

PROSPECTUS

LOGO

CORE-MARK HOLDING COMPANY, INC.

DEBT SECURITIES
COMMON STOCK
WARRANTS
SHARE PURCHASE CONTRACTS
UNITS

Core-Mark International, Inc.
Core-Mark Midcontinent, Inc.
Core-Mark Interrelated Companies, Inc.
Core-Mark Distributors, Inc.

GUARANTEES



        Core-Mark Holding Company, Inc. ("Core-Mark") may from time to time offer to sell its debt securities, which may be fully and unconditionally guaranteed by any of Core-Mark International, Inc. ("Core-Mark International"), Core-Mark Midcontinent, Inc. ("Core-Mark Midcontinent"), Core-Mark Interrelated Companies, Inc. ("Core-Mark Interrelated"), and Core-Mark Distributors, Inc. ("Core-Mark Distributors" and, together with Core-Mark International, Core-Mark Midcontinent, and Core-Mark Interrelated, the "Additional Guarantors"). Such debt securities may be convertible or exchangeable for or exercisable into shares of common stock of Core-Mark.

        Core-Mark may from time to time offer to sell shares of its common stock, warrants, share purchase contracts or units. Core-Mark's common stock is listed on the NASDAQ Global Select Market and trades under the ticker symbol "CORE."

        Core-Mark and the Additional Guarantors (in the case of debt securities) may offer and sell these securities to or through one or more underwriters, dealers and agents, or directly to purchasers, on a continuous or delayed basis. These securities also may be resold by securityholders. Core-Mark will provide the specific plan of distribution for any securities to be offered in supplements to this prospectus. Core-Mark and the Additional Guarantors will provide specific terms of any securities to be offered in supplements to this prospectus. You should read this prospectus and the applicable prospectus supplement carefully before you invest.

        The principal executive offices of Core-Mark are located at 1500 Solana Boulevard, Suite 3400, Westlake, Texas 76262, and its telephone number at that address is (940) 293-8600.

        Investing in the securities involves risks. See "Risk Factors" on page 3 of this prospectus, in any applicable prospectus supplement and in the documents incorporated by reference in this prospectus or any applicable prospectus supplement to read about factors you should consider before investing in the securities.



        Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.

        This prospectus may not be used to sell securities unless accompanied by a prospectus supplement that contains a description of those securities.



The date of this prospectus is June 5, 2020




Table of Contents


TABLE OF CONTENTS

ABOUT THIS PROSPECTUS

  1

WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION BY REFERENCE

  1

BUSINESS

  3

RISK FACTORS

  3

CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

  3

USE OF PROCEEDS

  6

DESCRIPTION OF CAPITAL STOCK

  6

DESCRIPTION OF OTHER SECURITIES

  8

SELLING SECURITYHOLDERS

  8

PLAN OF DISTRIBUTION

  8

LEGAL MATTERS

  8

EXPERTS

  8

i


Table of Contents


ABOUT THIS PROSPECTUS

        This prospectus is part of an automatic shelf registration statement on Form S-3 that we have filed with the Securities and Exchange Commission (the "SEC") as a "well-known seasoned issuer" as defined in Rule 405 under the Securities Act. By using a shelf registration statement, we may sell, at any time and from time to time, in one or more offerings, the securities described in this prospectus. As allowed by the SEC rules, this prospectus does not contain all of the information included in the registration statement. For further information, we refer you to the registration statement, including its exhibits and documents incorporated by reference. Statements contained in this prospectus about the provisions or contents of any agreement or other document are not necessarily complete. If the SEC's rules and regulations require that an agreement or document be filed as an exhibit to the registration statement, please see that agreement or document for a complete description of these matters.

        You should read this prospectus, any prospectus supplement and any free writing prospectus, including in each case any information incorporated by reference herein or therein, together with any additional information you may need to make your investment decision. You should also read and carefully consider the information in the documents we have referred you to in "Where You Can Find More Information; Incorporation by Reference" below. Information incorporated by reference after the date of this prospectus is considered a part of this prospectus and may add, update or change information contained in this prospectus. Any information in such subsequent filings that is inconsistent with this prospectus will supersede the information in this prospectus and any earlier prospectus supplement.

        THIS PROSPECTUS MAY NOT BE USED TO SELL ANY SECURITIES UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT OR A FREE WRITING PROSPECTUS.

        We have not authorized anyone else to provide you with other information. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We are not making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should not assume that the information in this prospectus, any prospectus supplement, any free writing prospectus or any document incorporated herein by reference is accurate as of any date other than the date of the applicable document. Our business, financial condition, results of operations and prospects may have changed since that date.

        Unless otherwise stated, or the context otherwise requires, references in this prospectus to "we," "us," the "Company" and "our" are to Core-Mark and its consolidated subsidiaries, including the Additional Guarantors.


WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION BY REFERENCE

        Core-Mark is subject to the informational requirements of the Securities Exchange Act of 1934 (the "Exchange Act") and, in accordance with these requirements, Core-Mark files annual, quarterly and current reports, proxy statements, and other information with the SEC. The SEC maintains an Internet site that contains our reports, proxy statements, and other information regarding us at http://www.sec.gov. Our SEC filings are also available free of charge on our website (www.core-mark.com). Other than any documents expressly incorporated by reference, the information on our website and any other website that is referred to in this prospectus is not part of or incorporated by reference into this prospectus.

        The SEC allows us to "incorporate by reference" information into this prospectus, which means that we can disclose important information to you by referring to that information. We hereby "incorporate by reference" the documents listed below, which we have filed with the SEC (excluding any documents or portions of such documents that have been "furnished" but not "filed" for purposes

1


Table of Contents

of the Exchange Act). The information that we file later with the SEC will automatically update and in some cases supersede the information in this prospectus and the documents listed below.

        In addition, we incorporate by reference any filings made by Core-Mark with the SEC in accordance with Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the date of this prospectus and before the date all of the securities offered hereby are sold or the offering is otherwise terminated; provided that this prospectus will not incorporate any information that we may furnish to the SEC under Item 2.02 or Item 7.01 (including any financial statements or exhibits relating thereto furnished pursuant to Item 9.01) of Form 8-K unless specifically provided in such Form 8-K, which is not deemed filed and which is not incorporated by reference herein. Any such filings shall be deemed to be incorporated by reference and to be a part of this prospectus from the respective dates of filing of those documents.

        Any statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus will be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document, which also is or is deemed to be incorporated by reference in this prospectus, modifies or supersedes that statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.

        We will provide to each person, including any beneficial owner, to whom a prospectus is delivered, without charge, upon written or oral request, a copy of any or all of the information that is incorporated by reference into this prospectus but not delivered with this prospectus, excluding any exhibits to those documents unless the exhibit is specifically incorporated by reference as an exhibit in this prospectus. You should direct requests for documents to:

Core-Mark Holding Company, Inc.
1500 Solana Boulevard, Suite 3400
Westlake, Texas 76262
(940) 293-8600

2


Table of Contents


BUSINESS

        Core-Mark is one of the largest wholesale distributors to the convenience retail industry in North America, providing sales, marketing, distribution and logistics services to approximately 42,000 customer locations across the United States ("U.S.") and Canada through 32 distribution centers (excluding two distribution facilities we operate as a third-party logistics provider). Our origins date back to 1888, when Glaser Bros., a family-owned-and-operated candy and tobacco distribution business, was founded in San Francisco, California.

        Our mission is to be the most valued marketer of fresh, food and broad-line supply solutions to the convenience retail industry. Consistent with this mission, our strategic framework is centered around three key initiatives: growing sales and margins faster than the industry, providing industry-leading category management solutions and leveraging our cost structure. We have also been successful in growing our business organically and through strategic acquisitions which have allowed us to expand our distribution network, product selection and customer base.

        Core-Mark is one of two national distributors to the convenience store industry in the U.S. and is the largest in Canada. Our established national market presence rests primarily with our ability to service customers in every geographic region within the U.S. through 27 distribution centers and to service customers in Canada through our five Canadian distribution centers. We offer a wide array of products, marketing programs and services that leverage our scale to assist our customers in growing their business. Our leading category management strategies including our Vendor Consolidation Initiative, Focused Marketing Initiative and "Fresh" products and food service programs have a proven track record of helping our customers grow their sales and profits at an accelerated rate.

        The registered and principal executive offices of Core-Mark are located at 1500 Solana Boulevard, Suite 3400, Westlake, Texas 76262, and its telephone number at that address is (940) 293-8600. For administrative convenience, each of the Additional Guarantors utilizes the offices of Core-Mark as their principal executive offices.


RISK FACTORS

        Investing in our securities involves risks. Before deciding to purchase any of our securities, you should carefully consider the discussion of risks and uncertainties included in any prospectus supplement or free writing prospectus and under "Item 1ARisk Factors" in Core-Mark's Annual Report on Form 10-K for the year ended December 31, 2019 and in Core-Mark's Quarterly Report on Form 10-Q for the quarter ended March 31, 2020, which are incorporated by reference in this prospectus, and under similar headings in Core-Mark's subsequently-filed quarterly reports on Form 10-Q and annual reports on Form 10-K, as well as the other risks and uncertainties described in any other documents incorporated by reference in this prospectus or in any applicable prospectus supplement or free writing prospectus. See the section entitled "Where You Can Find More Information; Incorporation by Reference" in this prospectus. The risks and uncertainties discussed in the documents incorporated by reference in this prospectus are those we currently believe may materially affect us. Additional risks and uncertainties not presently known to us or that we currently believe are immaterial also may materially and adversely affect our business, financial condition and results of operations.


CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

        We have made forward-looking statements in this prospectus and the documents that are incorporated by reference herein that are based on our management's beliefs and assumptions and on information available to our management at the time such statements were made. Forward-looking statements include information concerning our possible or assumed future results of operations, business strategies, financing plans, competitive position, potential growth opportunities, potential

3


Table of Contents

operating performance improvements, the effects of competition and the effects of future legislation or regulations. Forward-looking statements include all statements that are not historical facts and in some cases can be identified by the use of words such as "may," "will," "should," "potential," "intend," "expect," "seek," "anticipate," "estimate," "believe," "could," "would," "project," "predict," "continue," "plan," "propose" or other similar words or expressions.

        Forward-looking statements are based on our current expectations and assumptions regarding our business, the economy, and other future conditions. Because forward-looking statements relate to the future, by their nature, they are subject to inherent uncertainties, risks and changes in circumstances that are difficult to predict. As a result, our actual results may differ materially from those contemplated by the forward-looking statements. Actual results could differ materially from those anticipated in these forward-looking statements as a result of a number of factors, including, but not limited to, the following:

4


Table of Contents

        The risk factors discussed under "Risk Factors" in this prospectus, any prospectus supplement, any free writing prospectus and under "Item 1A.—Risk Factors" in Core-Mark's Annual Report on Form 10-K for the year ended December 31, 2019 and in Core-Mark's Quarterly Report on Form 10-Q for the quarter ended March 31, 2020 and under similar headings in Core-Mark's subsequently-filed quarterly reports on Form 10-Q and annual reports on Form 10-K, as well as the other risks and uncertainties described in the other documents incorporated by reference into this prospectus, in any applicable prospectus supplement or any applicable free writing prospectus, could cause our results to differ materially from those expressed in forward-looking statements.

        Although we have attempted to identify important risk factors, there may be other risk factors not presently known to us or that we presently believe are not material that could cause actual results and developments to differ materially from those made in or suggested by the forward-looking statements contained in this prospectus. If any of these risks materialize, or if any of the above assumptions underlying forward-looking statements prove incorrect, actual results and developments may differ materially from those made in or suggested by the forward-looking statements contained in this prospectus or in any documents incorporated by reference herein. For the reasons described above, we caution you against relying on any forward-looking statements, which should also be read in conjunction with the other cautionary statements that are included elsewhere in this prospectus or in any documents incorporated by reference herein. Any forward-looking statement made by us in this prospectus or in any documents incorporated by reference herein speaks only as of the date on which we make it. Factors or events that could cause our actual results to differ may emerge from time to time, and it is not possible for us to predict all of them. We undertake no obligation to publicly update or to revise any forward-looking statement, whether as a result of new information, future developments, or otherwise, except as may be required by law. Comparisons of results for current and any prior periods are not intended to express any future trends or indications of future performance, unless specifically expressed as such, and should be viewed as historical data.

5


Table of Contents


USE OF PROCEEDS

        We intend to use the net proceeds we receive from the sale of any securities by us as set forth in the applicable prospectus supplement. The prospectus supplement relating to an offering will contain a more detailed description of the use of proceeds of any specific offering of securities.


DESCRIPTION OF CAPITAL STOCK

        The following descriptions of our capital stock, Certificate of Incorporation (as amended, the "certificate of incorporation") and Second Amended and Restated Bylaws ("bylaws") are intended as summaries only and do not describe every aspect of our capital stock and are subject to, and qualified in their entirety by reference to, the provisions of our certificate of incorporation and bylaws, each as currently in effect, each of which is incorporated by reference as exhibits to the registration statement of which this prospectus forms a part. See "Where You Can Find More Information; Incorporation by Reference."

Authorized Capital Stock

        Our authorized capital stock consists of 150,000,000 shares of common stock, par value $0.01 per share. As of May 4, 2020, we had 45,086,055 shares of common stock outstanding.

Common Stock

        Holders of our common stock are entitled to cast one vote for each share held of record on all matters voted upon by the stockholders and do not have any cumulative voting rights. The affirmative vote of a majority of the shares of our common stock present in person or represented by proxy at the meeting and entitled to vote at any annual or special meeting of stockholders will decide all matters voted on by stockholders, unless the question is one upon which, by express provision of law, under our certificate of incorporation, or under our bylaws, a different vote is required, in which case such provision will control. If the number of nominees for director exceeds the number of directors to be elected at any meeting of stockholders, directors shall be elected by the vote of a plurality of the shares represented in person or by proxy at such meeting and entitled to vote on such election of directors.

Dividends

        Holders of our common stock are entitled to share ratably in dividends and distributions, if any, that our board of directors may declare out of legally available funds.

Liquidation

        Upon our liquidation or dissolution, holders of our common stock are entitled to share ratably in any assets remaining after payment of liabilities.

Subscriptions and Calls

        We may issue subscription rights to purchase shares of our common stock. Unless otherwise provided in a subscription agreement, our bylaws provide that our board of directors may determine for subscriptions for shares to be paid in full or in installments as well as the time or times of such payments. Calls made by our board of directors for payment on subscriptions will be uniform as to all shares of the same class or as to all shares of the same series. In case of default in the payment of any installment or call when such payment is due, our bylaws permit us to collect the amount due in the same manner any debt due to us.

6


Table of Contents

Other Rights and Preferences

        The holders of our common stock do not have any preemptive, conversion, redemption or sinking fund rights. The common stock is not subject to future calls or assessments by us (except as described above), any restriction on alienability or any provision discriminating against any existing or prospective holder of common stock as a result of such holder owning a substantial amount of common stock. The rights and privileges of holders of our common stock are subject to any series of preferred stock that may be authorized and issued by us in the future.

Anti-Takeover Effects of Our Certificate of Incorporation and Bylaws and Delaware Law

        The provisions of our certificate of incorporation, our bylaws, and certain provisions of the Delaware General Corporate Law (the "DGCL") summarized below may have an anti-takeover effect and may delay, defer or prevent a tender offer or takeover attempt that you might consider in your best interest, including an attempt that might result in your receipt of a premium over the market price for your shares.

Authorized but Unissued Shares of Common Stock

        Under the DGCL our board of directors has the authority to issue the remaining shares of our authorized and unissued common stock without additional stockholder approval, subject to compliance with applicable NASDAQ Global Select Market requirements. While the additional shares are not designed to deter or prevent a change of control, under some circumstances we could use the additional shares to create voting impediments or to frustrate persons seeking to effect a takeover or otherwise gain control by, for example, issuing those shares in private placements to purchasers who might side with our board of directors in opposing a hostile takeover bid.

Removal of Directors

        Our bylaws provide that directors may be removed at any time upon the affirmative vote of the holders of at least a majority of the outstanding shares of common stock then entitled to vote in an election of directors.

Special Meetings of Stockholders

        Our certificate of incorporation provides that a special meeting of stockholders may be called only by a resolution adopted by a majority of our board of directors or by a holder or holders of at least ten percent of our common stock.

No Stockholder Action by Written Consent

        Our certificate of incorporation provides that any action taken by the stockholders must be effected at a duly called annual or special meeting, and may not be effected by written consent of stockholders.

Advance Notice Requirements for Stockholder Proposals and Nominations for Elections as Directors

        Our bylaws provide for an advance notice procedure for stockholders to make nominations of candidates for election as directors or to bring other business before an annual meeting of our stockholders. Our bylaws provide that any stockholder wishing to nominate persons for election as directors at, or bring other business before, an annual meeting must deliver to our corporate secretary a written notice of the stockholder's intention to do so. To be timely, the stockholder's notice must be delivered to our corporate secretary at our principal executive offices not less than 90 days nor more than 120 days before the first anniversary date of the preceding year's annual meeting; provided, however, that in the event that the annual meeting is set for a date that is more than 30 days before or more than 70 days after the first anniversary date of the preceding year's annual meeting, a

7


Table of Contents

stockholder's notice must be delivered to our corporate secretary not more than 120 days prior to the meeting but no later than the close of business on the later of (x) the 90th day prior to the meeting or (y) the 10th day following the day on which a public announcement of the date of the meeting is first made.

Section 203 of the DGCL.

        We are subject to Section 203 of the DGCL, which prohibits a publicly-held Delaware corporation from engaging in a business combination, such as a merger, with a person or group owning 15% or more of the corporation's outstanding voting stock for a period of three years following the date the person became an interested stockholder, unless (with certain exceptions) the business combination or the transaction in which the person became an interested stockholder is approved in a prescribed manner.

Stock Exchange Listing

        Our common stock is listed on the NASDAQ Global Select Market under the ticker symbol "CORE."

Transfer Agent and Registrar

        The transfer agent and registrar for our common stock is EQ Shareholder Services.


DESCRIPTION OF OTHER SECURITIES

        We will set forth in the applicable prospectus supplement a description of the debt securities, warrants, share purchase contracts, units and/or guarantees that may be offered under this prospectus.


SELLING SECURITYHOLDERS

        Information about selling securityholders, where applicable, will be set forth in a prospectus supplement, in a post-effective amendment, or in filings we make with the SEC under the Securities Exchange Act of 1934 that are incorporated by reference.


PLAN OF DISTRIBUTION

        We may offer and sell these securities to or through one or more underwriters, dealers and agents, or directly to purchasers, on a continuous or delayed basis. We will provide the specific plan of distribution for any securities to be offered in supplements to this prospectus.


LEGAL MATTERS

        Unless otherwise indicated in the applicable prospectus supplement, the validity of the securities offered hereby will be passed upon by Weil, Gotshal & Manges LLP.


EXPERTS

        The consolidated financial statements, and related financial statement schedule, incorporated in this prospectus by reference from Core-Mark's Annual Report on Form 10-K for the fiscal year ended December 31, 2019, and the effectiveness of Core-Mark's internal control over financial reporting, have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports (which reports express an unqualified opinion on the consolidated financial statements and financial statement schedule and include an explanatory paragraph referring to Core-Mark's adoption of FASB Accounting Standards Update 2016-02, Leases, using the modified retrospective approach), which are incorporated herein by reference. Such financial statements and financial statement schedule have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.

8


Table of Contents


PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 14.    Other Expenses of Issuance and Distribution

        The following statement sets forth the expenses payable by Core-Mark and the Additional Guarantors (together with Core-Mark, the "Registrants") in connection with the offering of the securities being registered, other than discounts and commissions.

SEC registration fee

  $ *  

Printing expenses

    +  

Legal fees and expenses

    +  

Audit fees and expenses

    +  

Transfer agent fees and expenses

    +  

Trustee fees and expenses

    +  

Miscellaneous expenses

    +  

Total

  $ +  

*
In accordance with Rules 456(b) and 457(r), the Registrants are deferring payment of the registration fee for the securities offered by this prospectus.

+
Estimated expenses are not presently known. The foregoing sets forth the general categories of expenses (other than underwriting discounts and commissions) that the Registrants anticipate they will incur in connection with the offering of securities under this registration statement. An estimate of the aggregate expenses in connection with the issuance and distribution of the securities being offered will be included in the applicable prospectus supplement.

Item 15.    Indemnification of Directors and Officers

Core-Mark and Core-Mark International

        Core-Mark and Core-Mark International are Delaware corporations. Section 145 of the General Corporation Law of Delaware (the "DGCL") provides that a Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation) by reason of the fact that any such person is or was a director, officer, employee or agent of such 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 or other enterprise. The indemnity may include expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that such officer or director acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. A Delaware corporation may indemnify officers and directors against expenses (including attorneys' fees) in connection with the defense or settlement of any action by or in the right of the corporation under the same conditions, except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of an action referred to above, the corporation must indemnify him or her against the expenses (including attorneys' fees) which such officer or director actually and reasonably incurred.

II-1


Table of Contents

        Section 102 of the DGCL allows a Delaware corporation to eliminate or limit the personal liability of a director to the corporation or to any of its stockholders for monetary damage for a breach of fiduciary duty as a director, except in the case where the director (i) breaches such person's duty of loyalty to the corporation or its stockholders, (ii) fails to act in good faith, engages in intentional misconduct or knowingly violates a law, (iii) authorizes the payment of a dividend or approves a stock purchase or redemption in violation of Section 174 of the DGCL or (iv) obtains an improper personal benefit. In accordance with the DGCL, the Ninth Article of Core-Mark's certificate of incorporation provides that, to the fullest extent permitted by the DGCL as it may be amended, no director or officer shall be personally liable to Core-Mark or its stockholders for monetary damages for breach of fiduciary duty as a director or officer, as applicable. As permitted by the DGCL, the Seventh Article of Core-Mark International's certificate of incorporation provides that no director shall be personally liable to Core-Mark International, except (i) for any breach of the director's duty of loyalty to Core-Mark International or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which the director derived an improper personal benefit. As permitted by the DGCL, the Ninth Article of Core-Mark's certificate of incorporation and the Seventh Article of Core-Mark International's bylaws provide that, under certain circumstances, directors and officers of Core-Mark shall be indemnified against expenses including attorneys' fees, judgments, fines and settlements actually and reasonably incurred in connection with any proceeding by reason of their status as such. The Ninth Article of Core-Mark's certificate of incorporation also provides that any person serving as a director or officer of another corporation, partnership, limited liability company, joint venture, or other enterprise, at least 50% of whose equity interests are owned by Core-Mark, such as the Additional Guarantors, will be conclusively presumed to be serving in such capacity at the request of Core-Mark.

        Core-Mark has also entered into indemnification agreements with its directors and officers and directors and officers of its subsidiaries that provide, under certain circumstances, directors and officers of Core-Mark or its subsidiaries, including the Additional Guarantors, shall, by reason of their status as such, be indemnified against certain liabilities and to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified.

Core-Mark Midcontinent

        Core-Mark Midcontinent is an Arkansas corporation. Ark. Code Ann. §4-26-814 provides for the indemnification of officers, directors, employees, and agents of corporations governed under the Arkansas Business Corporation Act (the "1965 Act"). Under the 1965 Act, a corporation may indemnify any person who is a party or threatened to be made a party to any litigation or other legal proceeding (including an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of the corporation (or is or was serving another entity in such capacity at the request of the corporation) against expenses (including attorneys' fees) judgments, fines and amounts paid in settlement which are actually and reasonably incurred in connection with such action, suit or proceeding. Such indemnification is authorized, even if the person is unsuccessful on the merits, if he or she acted "in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation" and, in the case of a criminal proceeding, had no reason to believe such conduct was unlawful. To the extent successful on the merits or otherwise in defense of any action, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred. Expenses, including attorneys' fees, incurred in defending a civil or criminal action, suit, or proceeding may be paid by the corporation in advance upon approval by a quorum of disinterested directors, independent legal counsel, or the shareholders that the director, officer, employee or agent is entitled to indemnification.

II-2


Table of Contents

        Any indemnification mentioned above shall be made only as authorized in the specific case upon a determination that indemnification of such person is proper in the circumstances because the person has met the applicable standards of conduct. The determination shall be made by the board of directors by a majority vote of a quorum consisting of directors who were not parties to the action.

        The indemnification provided Ark. Code Ann. § 4-26-814 is not exclusive of any other rights to which those indemnified may be entitled under any bylaw, agreement, vote of shareholders or disinterested directors or otherwise and shall inure to the benefit of the heirs, executors, and administrators of such a indemnified person. Neither Core-Mark Midcontinent's Amended and Restated Articles of Incorporation, nor Bylaws, as amended, provide for any additional indemnification rights in favor of any person serving as a director, officer, employee, or agent of the corporation. A corporation has the power to purchase and maintain insurance covering the indemnification obligations under the statute.

        See also "—Core-Mark and Core-Mark International" above for a description of additional indemnification provisions applicable to directors and officers of Core-Mark Midcontinent as a subsidiary of Core-Mark.

Core-Mark Interrelated

        Core-Mark Interrelated is a Californian corporation. Section 317 of the California Corporations Code provides for indemnification of a corporation's directors and officers under certain circumstances. Core-Mark Interrelated is authorized under its articles of incorporation to indemnify its directors and officers to the fullest extent permissible under California law. Core-Mark Interrelated's bylaws authorizes it to provide indemnification of any person who is or was a director or officer of Core-Mark Interrelated or is or was serving (during the person's tenure as a director or officer) at the request of Core-Mark Interrelated or any other corporation, partnership, joint venture, trust or other enterprise in any capacity to the fullest extent under California law against all expenses, liability and loss, including attorneys' fees, judgments, fines or penalties and settlements reasonably incurred in connection therewith. In addition, Section 204(a)(10) of the California Corporations Code permits a corporation to provide, in its articles of incorporation, that directors shall not have liability to the corporation or its shareholders for monetary damages for breach of fiduciary duty, subject to certain exceptions. Core-Mark Interrelated's articles of incorporation provide that the liability of its directors for monetary damages will be eliminated to the fullest extent permissible under California law.

        See also "—Core-Mark and Core-Mark International" above for a description of additional indemnification provisions applicable to directors and officers of Core-Mark Interrelated as a subsidiary of Core-Mark.

Core-Mark Distributors

        Core-Mark Distributors in a Georgia corporation. Section 14-2-202(b)(4) of the Georgia Business Corporation Code (the "Georgia Code") provides that a corporation's articles of incorporation may include a provision that eliminates or limits the personal liability of directors for monetary damages to the corporation or its shareholders for breach of the directors' duty of care and other duties as directors. However, Section 14-2-202(b)(4) of the Georgia Code does not permit a corporation to eliminate or limit the liability of a director for (i) a breach of duty involving appropriation of a business opportunity of the corporation; (ii) an act or omission that involves intentional misconduct or a knowing violation of law; (iii) any transaction from which the director received an improper personal benefit; or (iv) any payments of a dividend or any other type of distribution that is illegal under Section 14-2-832 of the Georgia Code. Additionally, Section 14-2-202(b)(4) of the Georgia Code does not eliminate or limit the rights of a corporation or any shareholder to seek an injunction or other non-monetary relief in the event of a breach of a director's fiduciary duty, and applies only to claims

II-3


Table of Contents

against a director arising out of his role as a director and does not relieve a director from liability arising from his role as an officer or in any other capacity. The Articles of Incorporation of Core-Mark Distributors include provisions exculpating its directors from liability to the extent permitted by Section 14-2-202(b)(4) of the Georgia Code.

        Section 14-2-851 of the Georgia Code authorizes a corporation to indemnify individuals who are parties to proceedings because they are or were directors against liability incurred in such proceedings if they are determined to have met the standard of conduct set forth in that section. However, Section 14-2-856(a) of the Georgia Code provides that, if authorized by its articles of incorporation or a bylaw, contract, or resolution approved or ratified by the shareholders by a majority of the votes entitled to be cast, a corporation may indemnify its directors without regard to the limitations in other sections of the Georgia Code, including the limitation in Section 14-2-851 of the Georgia Code, which requires a determination that a director seeking indemnification must first be determined to have met the statutorily prescribed standard of conduct. Section 14-2-856(b), however, prohibits a corporation from indemnifying a director for liability incurred in a proceeding in which the director is adjudged liable or subjected to injunctive relief in favor of the corporation for any of the four acts, outlined above, from which a director cannot be exculpated from liability as provided in Section 14-2-202(b)(4) of the Georgia Code. Section 14-2-856 of the Georgia Code sets forth the fullest extent to which a corporation may indemnify its directors.

        Core-Mark Distributors' bylaws provide that Core-Mark Distributors will indemnify any director who was or is a party, or is threatened to be made a party, to any threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, including any proceeding by or in the right of Core-Mark Distributors because of such director's role as a director, officer, employee or agent of Core-Mark Distributors against any judgment, settlement, penalty, fine, or reasonable expenses (including, but not limited to, attorneys' fees and disbursements, court costs and expert witness fees) incurred with respect to any such proceeding, if such director acted in a manner he or she believed in good faith to be in or not opposed to the best interests of Core-Mark Distributors and, in the case of any criminal proceeding, had no reasonable cause to believe his or conduct was unlawful. Core-Mark Distributors may not indemnify a director (1) in connection with a proceeding in which the director is adjudged liable to Core-Mark Distributors, or (2) in connection with any other proceeding in which the director is adjudged liable on the basis that such director received personal benefit. Indemnification in connection with a proceeding brought by or in the right of Core-Mark Distributors is limited to reasonable expenses incurred in connection with such proceeding.

        Core-Mark Distributors' bylaws also specify that Core-Mark Distributors' board of directors has the power to cause Core-Mark Distributors to provide officers, employees and agents of Core-Mark Distributors all or part of the right to indemnification permitted for such persons by appropriate provisions of the Georgia Code. Notwithstanding any judgment, order, settlement, conviction or plea in any proceeding, an indemnified person shall be entitled to indemnification pursuant to the bylaws if a determination is made that such indemnified person is entitled to such indemnification as provided in the bylaws. Subject to certain conditions, Core-Mark Distributors' bylaws specify that Core-Mark Distributors may advance expenses incurred by a director who is a party to the proceeding.

        See also "—Core-Mark and Core-Mark International" above for a description of additional indemnification provisions applicable to directors and officers of Core-Mark Distributors as a subsidiary of Core-Mark.

II-4


Table of Contents

Item 16.    Exhibits

Exhibit
Number
  Description
  1.1   Form of Underwriting Agreement.**

 

2.1

 

Third Amended and Revised Joint Plan of Reorganization of Fleming Companies, Inc. and its Subsidiaries Under Chapter 11 of the Bankruptcy Code, dated May 25, 2004 (incorporated by reference to Exhibit 2.1 of Core-Mark's Registration Statement on Form 10 filed on September 6, 2005).*

 

4.1

 

Certificate of Incorporation of Core-Mark Holding Company, Inc. (incorporated by reference to Exhibit 3.1 of the Company's Registration Statement on Form 10 filed on September 6, 2005).*

 

4.2

 

Certificate of Amendment to Certificate of Incorporation of Core-Mark Holding Company, Inc. (incorporated by reference to Exhibit 3.1 of the Company's Current Report on Form 8-K dated May 21, 2015). *

 

4.3

 

Certificate of Amendment to Certificate of Incorporation of Core-Mark Holding Company, Inc. (incorporated by reference to Exhibit 3.1 of the Company's Current Report on Form 8-K filed on May 23, 2018). *

 

4.4

 

Second Amended and Restated Bylaws of Core-Mark Holding Company, Inc. (incorporated by reference to Exhibit 3.2 of the Company's Current Report on Form 8-K filed on August 18, 2008). *

 

4.5

 

Amended and Restated Certificate of Incorporation of Core-Mark International, Inc. +

 

4.6

 

By-laws of Core-Mark International, Inc. +

 

4.7

 

Amendment to Bylaws of Core-Mark International, Inc.+

 

4.8

 

Amended and Restated Articles of Incorporation of Core-Mark Midcontinent, Inc.+

 

4.9

 

Certificate of Amendment to Articles of Incorporation of Core-Mark Midcontinent, Inc.+

 

4.10

 

Bylaws of Core-Mark Midcontinent, Inc.+

 

4.11

 

Amendment to Bylaws of Core-Mark Midcontinent, Inc.+

 

4.12

 

Restated Articles of Incorporation of Core-Mark Interrelated Companies, Inc.+

 

4.13

 

Restated Bylaws of Core-Mark Interrelated Companies, Inc.+

 

4.14

 

Articles of Restatement of Articles of Incorporation of Core-Mark Distributors, Inc.+

 

4.15

 

Bylaws of Core-Mark Distributors, Inc.+

 

4.16

 

Amendment to Bylaws of Core-Mark Distributors, Inc., dated November 26, 2002.+

 

4.17

 

Amendment to Bylaws of Core-Mark Distributors, Inc., dated June 30, 2003.+

 

4.18

 

Amendment No. 3 to Bylaws of Core-Mark Distributors, Inc., dated August 23, 2004.+

 

4.19

 

Form of Certificate of Common Stock for Core-Mark Holding Company, Inc.+

 

4.20

 

Form of Indenture.+

 

4.21

 

Form of Warrant Agreement (including Form of Warrant Certificate) for Core-Mark Holding Company, Inc.**

 

4.22

 

Form of Share Purchase Contract Agreement for Core-Mark Holding Company, Inc.**

II-5


Table of Contents

Exhibit
Number
  Description
  4.23   Form of Unit Agreement (including Form of Unit Certificate) for Core-Mark Holding Company, Inc.**

 

5.1

 

Opinion of Weil, Gotshal & Manges LLP.+

 

5.2

 

Opinion of Friday, Eldredge & Clark, LLP.+

 

5.3

 

Opinion of Troutman Sanders LLP.+

 

23.1

 

Consent of Deloitte & Touche LLP.+

 

23.2

 

Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5.1).+

 

23.3

 

Consent of Friday, Eldredge & Clark, LLP (included in Exhibit 5.2).+

 

23.4

 

Consent of Troutman Sanders LLP (included in Exhibit 5.3).+

 

24.1

 

Power of Attorney with respect to Core-Mark Holding Company, Inc. signatories (included on signature page).+

 

24.2

 

Power of Attorney with respect to Core-Mark International, Inc. signatories (included on signature page).+

 

24.3

 

Power of Attorney with respect to Core-Mark Midcontinent, Inc. signatories (included on signature page).+

 

24.4

 

Power of Attorney with respect to Core-Mark Interrelated Companies, Inc. signatories (included on signature page).+

 

24.5

 

Power of Attorney with respect to Core-Mark Distributors, Inc. signatories (included on signature page).+

 

25.1

 

Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Trustee with respect to debt securities.+

(*)
Previously filed.

(**)
To be filed by amendment or as an exhibit to a report filed by Core-Mark under the Exchange Act and incorporated herein by reference.

(+)
Filed herewith.

Item 17.    Undertakings

        The undersigned Registrants hereby undertake:

II-6


Table of Contents

II-7


Table of Contents

        Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrants pursuant to the foregoing provisions, or otherwise, the Registrants have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by a registrant of expenses incurred or paid by a director, officer or controlling person of such registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, each Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether 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.

II-8


Table of Contents

SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Westlake, State of Texas, on the 5th day of June, 2020.

    CORE-MARK HOLDING COMPANY, INC.

 

 

By:

 

/s/ SCOTT E. MCPHERSON

Scott E. McPherson
President, Chief Executive Officer and Director


POWER OF ATTORNEY

        KNOW ALL MEN BY THESE PRESENTS, that each person whose name appears below hereby constitutes and appoints each of Scott E. McPherson and Christopher M. Miller, or any of them, each acting alone, such person's true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign for such person and in such person's name and capacity indicated below, any and all amendments to this Registration Statement, including post-effective amendments and any related registration statements filed pursuant to Rule 462 under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing required and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or any of he or his substitutes, could lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons as of the dates and in the capacities indicated with respect to Core-Mark Holding Company, Inc.

Signature
 
Title
 
Date

 

 

 

 

 
/s/ SCOTT E. MCPHERSON

Scott E. McPherson
  President, Chief Executive Officer and Director (Principal Executive Officer)   June 5, 2020

/s/ CHRISTOPHER M. MILLER

Christopher M. Miller

 

Senior Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

 

June 5, 2020

/s/ RANDOLPH I. THORNTON

Randolph I. Thornton

 

Chairman of the Board of Directors

 

June 5, 2020

/s/ STUART W. BOOTH

Stuart W. Booth

 

Director

 

June 5, 2020

Table of Contents

Signature
 
Title
 
Date

 

 

 

 

 
/s/ GARY F. COLTER

Gary F. Colter
  Director   June 5, 2020

/s/ ROCKY DEWBRE

Rocky Dewbre

 

Director

 

June 5, 2020

/s/ LAURA FLANAGAN

Laura Flanagan

 

Director

 

June 5, 2020

/s/ ROBERT G. GROSS

Robert G. Gross

 

Director

 

June 5, 2020

/s/ DIANE RANDOLPH

Diane Randolph

 

Director

 

June 5, 2020

/s/ HARVEY L. TEPNER

Harvey L. Tepner

 

Director

 

June 5, 2020

Table of Contents

SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Westlake, State of Texas, on the 5th day of June, 2020.

    CORE-MARK INTERNATIONAL, INC.

 

 

By:

 

/s/ SCOTT E. MCPHERSON

Scott E. McPherson
President, Chief Executive Officer and Director


POWER OF ATTORNEY

        KNOW ALL MEN BY THESE PRESENTS, that each person whose name appears below hereby constitutes and appoints each of Scott E. McPherson and Christopher M. Miller, or any of them, each acting alone, such person's true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign for such person and in such person's name and capacity indicated below, any and all amendments to this Registration Statement, including post-effective amendments and any related registration statements filed pursuant to Rule 462 under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing required and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or any of he or his substitutes, could lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons as of the dates and in the capacities indicated with respect to Core-Mark International, Inc.

 
Signature
 
Title
 
Date

 

 

 

 

 

 
  /s/ SCOTT E. MCPHERSON

Scott E. McPherson
  President, Chief Executive Officer and Director (Principal Executive Officer)   June 5, 2020

 

/s/ CHRISTOPHER M. MILLER

Christopher M. Miller

 

Senior Vice President, Chief Financial Officer and Director (Principal Financial and Accounting Officer)

 

June 5, 2020

Table of Contents

SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Westlake, State of Texas, on the on the 5th day of June, 2020.

    CORE-MARK MIDCONTINENT, INC.

 

 

By:

 

/s/ SCOTT E. MCPHERSON

Scott E. McPherson
President and Director


POWER OF ATTORNEY

        KNOW ALL MEN BY THESE PRESENTS, that each person whose name appears below hereby constitutes and appoints each of Scott E. McPherson and Christopher M. Miller, or any of them, each acting alone, such person's true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign for such person and in such person's name and capacity indicated below, any and all amendments to this Registration Statement, including post-effective amendments and any related registration statements filed pursuant to Rule 462 under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing required and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or any of he or his substitutes, could lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons as of the dates and in the capacities indicated with respect to Core-Mark Midcontinent, Inc.

Signature
 
Title
 
Date

 

 

 

 

 
/s/ SCOTT E. MCPHERSON

Scott E. McPherson
  President and Director (Principal Executive Officer)   June 5, 2020

/s/ CHRISTOPHER M. MILLER

Christopher M. Miller

 

Chief Financial Officer and Director (Principal Financial and Accounting Officer)

 

June 5, 2020

Table of Contents

SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Westlake, State of Texas, on the 5th day of June, 2020.

    CORE-MARK INTERRELATED COMPANIES, INC.

 

 

By:

 

/s/ SCOTT E. MCPHERSON

Scott E. McPherson
President and Director


POWER OF ATTORNEY

        KNOW ALL MEN BY THESE PRESENTS, that each person whose name appears below hereby constitutes and appoints each of Scott E. McPherson and Christopher M. Miller, or any of them, each acting alone, such person's true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign for such person and in such person's name and capacity indicated below, any and all amendments to this Registration Statement, including post-effective amendments and any related registration statements filed pursuant to Rule 462 under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing required and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or any of he or his substitutes, could lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons as of the dates and in the capacities indicated with respect to Core-Mark Interrelated Companies, Inc.

Signature
 
Title
 
Date

 

 

 

 

 
/s/ SCOTT E. MCPHERSON

Scott E. McPherson
  President and Director (Principal Executive Officer)   June 5, 2020

/s/ CHRISTOPHER M. MILLER

Christopher M. Miller

 

Chief Financial Officer, Secretary and Director (Principal Financial and Accounting Officer)

 

June 5, 2020

Table of Contents

SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Westlake, State of Texas, on the on the 5th day of June, 2020.

    CORE-MARK DISTRIBUTORS, INC.

 

 

By:

 

/s/ SCOTT E. MCPHERSON

Scott E. McPherson
President and Director


POWER OF ATTORNEY

        KNOW ALL MEN BY THESE PRESENTS, that each person whose name appears below hereby constitutes and appoints each of Scott E. McPherson and Christopher M. Miller, or any of them, each acting alone, such person's true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign for such person and in such person's name and capacity indicated below, any and all amendments to this Registration Statement, including post-effective amendments and any related registration statements filed pursuant to Rule 462 under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing required and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or any of he or his substitutes, could lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons as of the dates and in the capacities indicated with respect to Core-Mark Distributors, Inc.

Signature
 
Title
 
Date

 

 

 

 

 
/s/ SCOTT E. MCPHERSON

Scott E. McPherson
  President and Director (Principal Executive Officer)   June 5, 2020

/s/ CHRISTOPHER M. MILLER

Christopher M. Miller

 

Chief Financial Officer and Director (Principal Financial and Accounting Officer)

 

June 5, 2020



Exhibit 4.5

 

AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CORE-MARK INTERNATIONAL, INC.

 

Core-Mark International, Inc., a corporation organized and existing under the Delaware General Corporation Law (the “DGCL”), DOES HEREBY CERTIFY:

 

1.             The original Certificate of Incorporation of this corporation was filed with the Secretary of State of Delaware on March 1, 1995 under the name “Core­Mark International, Inc.”

 

2.             The Amended and Restated Certificate of Incorporation of Core-Mark International, Inc. in the form attached hereto as Annex A has been duly adopted in accordance with the provisions of Sections 245 and 242 of the DGCL by the directors and stockholders of this corporation.

 

3.             The Amended and Restated Certificate of Incorporation so adopted reads in full as set forth in Annex A attached hereto and is incorporated herein by this reference.

 

IN WITNESS WHEREOF, Core-Mark International Inc,. has caused this Amended and Restated Certificate of Incorporation to be signed by its duly authorized and elected Senior Vice President, Chief Financial Officer and Secretary this 18th day of June, 2002.

 

 

CORE-MARK INTERNATIONAL, INC.

 

 

 

 

By:

/s/ Leo Korman

 

 

 

 

Name:

Leo Korman

 

 

 

 

Its:

Senior Vice President, Chief Financial Officer and Secretary

 


 

ANNEX A

 

AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CORE-MARK INTERNATIONAL, INC.

 

ARTICLE I

 

The name of the corporation (the “Corporation”) is:

 

Core-Mark International, Inc.

 

ARTICLE II

 

The address of its registered office in the State of Delaware is 9 East Loockerman Street, in the City of Dover, County of Kent, 19901. The name of its registered agent at such address is National Registered Agents, Inc.

 

ARTICLE III

 

The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

 

ARTICLE IV

 

The total number of shares of stock which the Corporation shall have authority to issue is one Hundred (100), all of which shall be Common Stock, $.0001 par value per share.

 

ARTICLE V

 

In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to adopt, amend or repeal the Bylaws of the Corporation.

 

ARTICLE VI

 

Election of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide.

 

ARTICLE VII

 

No director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law, (iii) under Section 174 of the General Corporation Law of Delaware, or (iv) for any transaction from which the director derived an improper personal benefit.

 




Exhibit 4.6

 

BY-LAWS

 

OF

 

CORE-MARK INTERNATIONAL, INC.

 

(a Delaware corporation)

 

ARTICLE I
Stockholders

 

SECTION 1.1.              Annual Meetings.  The annual meeting of stockholders for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held each year at such date and time, within or without the State of Delaware, as the Board of Directors shall determine.

 

SECTION 1.2.              Special Meetings.  Special meetings of stockholders for the transaction of such business as may properly come before the meeting may be called by order of the Board of Directors or by stockholders holding together at least a majority of all the shares of the Corporation entitled to vote at the meeting, and shall be held at such date and time, within or without the State of Delaware, as may be specified by such order.  Whenever the directors shall fail to fix such place, the meeting shall be held at the principal executive office of the Corporation.

 

SECTION 1.3.              Notice of Meetings.  Written notice of all meetings of the stockholders, stating the place, date and hour of the meeting and the place within the city or other municipality or community at which the list of stockholders may be examined, shall be mailed or delivered to each stockholder not less than 10 nor more than 60 days prior to the meeting.  Notice of any special meeting shall state in general terms the purpose or purposes for which the meeting is to be held.

 

SECTION 1.4.              Stockholder Lists.  The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder.  Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held.  The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.

 

The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this section, or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.

 

SECTION 1.5.              Quorum.  Except as otherwise provided by law, the Corporation’s Certificate of Incorporation or these By-Laws, a majority of the shares entitled to

 


 

vote, present in person or represented by proxy, shall constitute a quorum at a meeting of the stockholders.  If there is no quorum, a majority of the shares entitled to vote at the meeting, present in person or represented by proxy, may adjourn the meeting from time to time without further notice until a quorum shall be obtained.  When a quorum is obtained, it is not broken by the subsequent withdrawal of any stockholder.

 

SECTION 1.6.              Organization.  Meetings of stockholders shall be presided over by the Chairman, if any, or if none or in the Chairman’s absence the Vice Chairman, if any, or if none or in the Vice Chairman’s absence the President, or if none or in the President’s absence a Vice President, or, if none of the foregoing is present, by a chairman to be chosen by the stockholders entitled to vote who are present in person or by proxy at the meeting.  The Secretary of the Corporation, or in the Secretary’s absence an Assistant Secretary, shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present, the presiding officer of the meeting shall appoint any person present to act as secretary of the meeting.

 

SECTION 1.7.              Voting; Proxies; Required Vote.  (a) At each meeting of stockholders, every stockholder shall be entitled to vote in person or by proxy appointed by instrument in writing, subscribed by such stockholder or by such stockholder’s duly authorized attorney-in-fact (but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period), and, unless the Certificate of Incorporation provides otherwise, shall have one vote for each share of stock entitled to vote registered in the name of such stockholder on the books of the Corporation on the applicable record date fixed pursuant to these By-Laws.  At all elections of directors taken at any meeting of stock­ holders, the voting may be, but need not be, by written ballot.  Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors.  In all matters other than the election of directors, the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders, whether or not a quorum is present when the vote is taken.

 

(b)           Any action required or permitted to be taken at any meeting of stockholders may, except as otherwise required by law or the Certificate of Incorporation, be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of record of the issued and outstanding capital stock of the Corporation having the number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted, and the writing or writings are filed with the permanent records of the Corporation.  Prompt notice of the taking of corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.

 

SECTION 1.8.              Inspectors.  The Board of Directors, in advance of any meeting, may, but need not, appoint one or more inspectors of election to act at the meeting or any adjournment thereof.  If an inspector or inspectors are not so appointed, the person presiding at the meeting may, but need not, appoint one or more inspectors.  In case any person who may be appointed as an inspector fails to appear or act, the vacancy may be filled by appointment made by the directors in advance of the meeting or at the meeting by the person presiding thereat.  Each inspector, if any, before entering upon the discharge of his or her duties, shall take and sign

 

2


 

an oath faithfully to execute the duties of inspector at such meeting with strict impartiality and according to the best of his ability.  The inspectors, if any, shall determine the number of shares of stock outstanding and the voting power of each, the shares of stock represented at the meeting, the existence of a quorum, and the validity and effect of proxies, and shall receive votes, ballots, or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes, ballots, or consents, determine the result, and do such acts as are proper to conduct the election or vote with fairness to all stock-holders.  On request of the person presiding at the meeting, the inspector or inspectors, if any, shall make a report in writing of any challenge, question, or matter determined by such inspector or inspectors and execute a certificate of any fact found by such inspector or inspectors.

 

ARTICLE II
Board of Directors

 

SECTION 2.1.              General Powers.  The business, property, and affairs of the Corporation shall be managed by, or under the direction of, the Board of Directors.

 

SECTION 2.2.              Qualification; Number; Term; Remuneration.  (a) Each director shall be at least 18 years of age.  A director need not be a stockholder, a citizen of the United States, or a resident of the State of Delaware.  The number of directors constituting the entire Board shall be eight, or such other number as may be fixed from time to time by resolution of the Board of Directors, one of whom may be selected by the Board of Directors to be its Chairman.  The use of the phrase “entire Board” herein refers to the total number of directors which the Corporation would have if there were no vacancies.

 

(b)           Directors who are elected at an annual meeting of stockholders, and directors who are elected in the interim to fill vacancies and newly created director­ ships, shall hold office until the next annual meeting of stockholders and until their successors are elected and qualified or until their earlier resignation or removal.

 

(c)           Directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director.  No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.  Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

SECTION 2.3.              Quorum and Manner of Voting.  Except as otherwise provided by law or by agreement of the stock­ holders, a majority of the entire Board shall constitute a quorum.  A majority of the directors present, whether or not a quorum is present, may adjourn a meeting from time to time to another time and place without notice.  The vote of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

SECTION 2.4.              Places of Meetings.  Meetings of the Board of Directors may be held at any place within or without the State of Delaware, as may from time to time be fixed by resolution of the Board of Directors, or as may be specified in the notice of meeting.

 

3


 

SECTION 2.5.              Annual Meeting.  Following the annual meeting of stockholders, the newly elected Board of Directors shall meet for the purpose of the election of officers and the transaction of such other business as may properly come before the meeting.  Such meeting may be held without notice immediately after the annual meeting of stockholders at the same place at which such stockholders’ meeting is held.

 

SECTION 2.6.              Regular Meetings.  Regular meetings of the Board of Directors shall be held at such times and places as the Board of Directors shall from time to time by resolution determine.  Notice need not be given of regular meetings of the Board of Directors held at times and places fixed by resolution of the Board of Directors.

 

SECTION 2.7.              Special Meetings.  Special meetings of the Board of Directors shall be held whenever called by the Chairman of the Board, the President, or by a majority of the directors then in office.

 

SECTION 2.8.              Notice of Meetings.  A notice of the place, date, and time and the purpose or purposes of each meeting of the Board of Directors shall be given to each director by mailing the same at least five business days before the meeting, or by telegraphing or telephoning the same or by delivering the same personally not later than two days before the day of the meeting.

 

SECTION 2.9.              Organization.  At all meetings of the Board of Directors, the Chairman, if any, or, if none or in the Chairman’s absence or inability to act, the President, or in the President’s absence or inability to act, any Vice President who is a member of the Board of Directors, or in such Vice President’s absence or inability to act, a chairman chosen by the directors, shall preside.  The Secretary of the Corporation shall act as secretary at all meetings of the Board of Directors when present, and, in the Secretary’s absence, the presiding officer may appoint any person to act as secretary.

 

SECTION 2.10.            Resignation.  Any director may resign at any time upon written notice to the Corporation and such resignation shall take effect upon receipt thereof by the President or the Secretary, unless otherwise specified in the resignation.  Any or all of the directors may be removed, with or without cause, by the holders of a majority of the shares of stock outstanding and entitled to vote for the election of directors.

 

SECTION 2.11.            Vacancies.  Unless otherwise provided in these By-Laws or in an agreement among or binding upon the stockholders, vacancies on the Board of Directors, whether caused by resignation, death, disqualification, removal, an increase in the authorized number of directors, or otherwise, may be filled by the affirmative vote of a majority of the remaining directors, although less than a quorum, or by a sole remaining director, or at a special meeting of the stockholders, by the holders of shares entitled to vote for the election of directors; provided, however, that the director (the “Required B Holders Director”) designated by the Required B Holders (as defined in the Limited Liability Company Agreement (the “LLC Agreement”) of Core-Mark L.L.C., a limited liability company organized under the laws of Delaware, dated as of March 2, 1995 among CMI Partnership, Post-Mark, Inc., The Nippon Credit Bank, Ltd., Van Kampen Merritt Prime Rate Income Trust and Westpac Investment

 

4


 

Capital Corp.)  pursuant to Section 6.06 of the LLC Agreement may only be removed, without cause, by the affirmative vote of the Required B Holders (as defined in the LLC Agreement).

 

SECTION 2.12.            Absence from Meetings.  If the Required B Holders Director is unable, for any reason, to attend a meeting of the Board of Directors, such Required B Holders Director may send an observer to attend such Board meeting; provided, however, that under no circumstances will such observer be able to vote on any matter brought to a vote of the directors.

 

SECTION 2.13.            Action by Written Consent.  Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if all the directors consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors.

 

ARTICLE III
Committees

 

SECTION 3.1.              Appointment; Membership.  (a)  In addition to the committees established under Section 3.6 hereof, from time to time the Board of Directors by a resolution adopted by a majority of the entire Board may appoint any committee or committees for any purpose or purposes, to the extent lawful, which shall have powers as shall be determined and specified by the Board of Directors in the resolution of appointment.

 

(b)           As long as no Change in Control Event (as defined in the LLC Agreement) has occurred, each committee of the Board shall be comprised of three members:  a director who is also an executive officer of the Corporation, the Required B Holders Director and the Independent Director (each as defined in the LLC Agreement).

 

SECTION 3.2.              Procedures, Quorum. and Manner of Acting.  Each committee shall fix its own rules of procedure, and shall meet where and as provided by such rules or by resolution of the Board of Directors.  Except as otherwise provided by law, the presence of a majority of the then appointed members of a committee shall constitute a quorum for the transaction of business by that committee, and in every case where a quorum is present the affirmative vote of a majority of the members of the committee present shall be the act of the committee.  Each committee shall keep minutes of its proceedings, and actions taken by a committee shall be reported to the Board of Directors.

 

SECTION 3.3.              Notice of Meetings.  Notice of the place, date and time and the purpose or purposes of each meeting of any committee of the Board of Directors shall be given to each member of such committee the same at least five business days before the meeting, or by telegraphing or telephoning the same or by delivering the same personally not later than two days before the day of the meeting.

 

SECTION 3.4.              Action by Written Consent.  Any action required or permitted to be taken at any meeting of any committee of the Board of Directors may be taken without a meeting if all the members consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the committee.

 

5


 

SECTION 3.5.              Term; Termination.  In the event any person shall cease to be a director of the Corporation, such person shall simultaneously therewith cease to be a member of any committee appointed by the Board of Directors.

 

SECTION 3.6.              Standing Committees.

 

(a)           Compensation Committee.  There shall be a committee of the Board of Directors, which shall be the Compensation Committee.  As long as no Change in Control Event shall have occurred, the Compensation Committee shall be comprised of the Chairman of the Board of Directors, the Required B Holders Directors and the Independent Director.  The Compensation Committee shall have the authority and responsibility for considering, adopting, authorizing and implementing the salary, bonus and other benefits, direct and indirect, of, and any employment, severance, termination, bonus, benefit or other similar agreements or plans with or for the benefit of, the officers of the Corporation and shall have the authority and responsibility for considering, authorizing and acting upon such other matters as may be designated to such committee from time to time by the Board of Directors.  The vote of the majority of the members of the Compensation Committee present at a meeting at which a quorum is present shall be the act of the Compensation Committee.

 

(b)           Audit Committee.  There shall be a committee of the Board of Directors, which shall be the Audit Committee.  As long as no Change in Control Event shall have occurred, the Audit Committee shall be comprised of the Chairman of the Board of Directors, the Required B Holders Directors and the Independent Director.  The Audit Committee shall have the authority and responsibility for considering and recommending to the Board of Directors the process for producing the Corporation’s financial data, internal controls and the independence of the Corporation’s external auditors and shall have the authority and responsibility for considering and recommending to the Board of Directors such other matters as may be designated to such committee from time to time by the Board of Directors.  The vote of the majority of the members of the Audit Committee present at a meeting at which a quorum is present shall be the act of the Audit Committee.

 

ARTICLE IV
Officers

 

SECTION 4.1.              Election and Qualifications.  The Board of Directors shall elect the officers of the Corpora­tion, which shall include a President and a Secretary, and may include, by election or appointment, one or more Vice Presidents (any one or more of whom may be given an addi­tional designation of rank or function), a Treasurer, and such Assistant Secretaries, such Assistant Treasurers, and such other officers as the Board may from time to time deem proper.  Each officer shall have such powers and duties as may be prescribed by these By-Laws and as may be assigned by the Board of Directors or the President.  Any two or more offices may be held by the same person.

 

SECTION 4.2.              Term of Office and Remuneration.  Except as otherwise provided in an employment agreement, the term of office of all officers shall be one year and until their respective successors have been elected and qualified, but any officer may be removed from office, either with or without cause, at any time by the Board of Directors.  Any vacancy in

 

6


 

any office arising from any cause may be filled for the unexpired portion of the term by the Board of Directors.  The remuneration of all officers of the Corporation may be fixed by the Board of Directors or in such manner as the Board of Directors shall provide.

 

SECTION 4.3.              Resignation; Removal.  Any officer may resign at any time upon written notice to the Corporation and such resignation shall take effect upon receipt thereof by the President or the Secretary, unless otherwise specified in the resignation.  Any officer shall be subject to removal, with or without cause, at any time by vote of a majority of the entire Board.

 

SECTION 4.4.              Chairman of the Board.  The Chairman of the Board of Directors, if there be one, shall be the chief executive officer of the Corporation.  The Chairman of the Board shall preside at all meetings of the stockholders and the Board of Directors and shall have such other powers and duties as may from time to time be assigned by the Board of Directors.

 

SECTION 4.5.              President.  The President shall be the chief operating officer of the Corporation, and shall have such duties as customarily pertain to that office.  The President shall have general management and supervision of the property, business, and affairs of the Corporation and over its other officers; may appoint and remove assistant officers and other agents and employees; and may execute and deliver, in the name of the Corporation, powers of attorney, contracts, bonds, and all other obligations and instruments.  In the absence of the Chairman of the Board or in the event of his inability or refusal to act, or if the Board has not designated a Chairman, the President shall perform the duties of the Chairman of the Board, and when so acting, shall have all of the powers of, and be subject to all of the restrictions upon, the Chairman of the Board.

 

SECTION 4.6.              Vice President.  A Vice President may execute and deliver in the name of the Corporation contracts and other obligations and instruments pertaining to the regular course of the duties of said office, and shall have such other authority as from time to time may be assigned by the Board of Directors or the President.

 

SECTION 4.7.              Treasurer.  The Treasurer shall in general have all duties incident to the position of Treasurer and such other duties as may be assigned by the Board of Directors or the President.

 

SECTION 4.8.              Secretary.  The Secretary shall in general have all the duties incident to the office of Secretary and such other duties as may be assigned by the Board of Directors or the President.

 

SECTION 4.9.              Assistant Officers.  Any assistant officer shall have such powers and duties of the officer such assistant officer assists as such officer or the Board of Directors shall from time to time prescribe.

 

7


 

ARTICLE V
Indemnification

 

SECTION 5.1.              Indemnity.  The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to, or testifies in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative in nature, by reason of the fact that such person is or was a director, officer, employee, agent, stockholder or a holder of any ownership interest in any stockholder of the Corporation (each, an “Indemnitee”), or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise (an “Other Entity”), against expenses (including attorneys’ fees and disbursements), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding to the full extent permitted by law.  Persons who are not Indemnitees of the Corporation may be similarly indemnified in respect of service to the Corporation or to an Other Entity at the request of the Corporation to the extent the Board at any time specifies that such persons are entitled to the benefits of this Article V, and the Corporation may enter into agreements with any such person for the purpose of providing for such indemnification.

 

SECTION 5.2.              Advancement of Expenses.  The Corporation shall, from time to time, reimburse or advance to any Indemnitee or other person entitled to indemnification under this Article V the funds necessary for payment of expenses (including attorney’s fees and disbursements) actually and reasonably incurred by such person in defending or testifying in a civil, criminal, administrative or investigative action, suit or proceeding; provided, however, that the Corporation may pay such expenses in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnitee to repay such amount if it shall ultimately be determined by final judicial decision that such Indemnitee is not entitled to be indemnified by the Corporation against such expenses as authorized by this Article V, and the Corporation may enter into agreements with such persons for the purpose of providing for such advances.

 

SECTION 5.3.              Insurance.  The Corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was an Indemnitee of the Corpora­ tion, or is or was serving at the request of the Corporation as a director, officer, employee or agent of an Other Entity against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Article V or otherwise.

 

SECTION 5.4.              Rights Not Exclusive.  The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Article V shall not be deemed exclusive of any other rights to which a person seeking indemnification or reimbursement or advancement of expenses may have or hereafter be entitled under any statute, the Certificate of Incorporation, these By-Laws, any agreement, any vote of stockholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office.

 

8


 

SECTION 5.5.              Continuation of Benefits.  The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Article V shall continue as to a person who has ceased to be an Indemnitee (or other person indemnified hereunder) and shall inure to the benefit of the executors, administrators, legatees and distributees of such person.

 

SECTION 5.6.              Binding Effect.  The provisions of this Article V shall be a contract between the Corporation, on the one hand, and each Indemnitee who serves in such capacity at any time while this Article V is in effect and any other person indemnified hereunder, on the other hand, pursuant to which the Corporation and each such Indemnitee or other person intend to be legally bound.  No repeal or modification of this Article V shall affect any rights or obligations with respect to any state of facts then or theretofore existing or thereafter arising or any proceeding theretofore or thereafter brought or threatened based in whole or in part upon any such state of facts.

 

SECTION 5.7.              Procedural Rights.  The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Article V shall be enforceable by any person entitled to such indemnification or reimbursement or advancement of expenses in any court of competent jurisdiction.  The burden of proving that such indemnification or reimbursement or advancement of expenses is not appropriate shall be on the Corporation.  Neither the failure of the Corporation (including its Board of Directors, its independent legal counsel and its stockholders) to have made a determination prior to the commencement of such action that such indemnification or reimbursement or advancement of expenses is proper in the circumstances nor an actual determination by the Corporation (including its Board of Directors, its independent legal counsel and its stockholders) that such person is not entitled to such indemnification or reimbursement or advancement of expenses shall constitute a defense to the action or create a presumption that such person is not so entitled.  Such a person shall also be indemnified for any expenses incurred in connection with successfully establishing his or her right to such indemnification or reimbursement or advancement of expenses, in whole or in part, in any such proceeding.

 

SECTION 5.8.              Service Deemed at Corporation’s Request.  Any Indemnitee of the Corporation serving in any capacity for (a) another corporation of which a majority of the shares entitled to vote in the election of its directors is held, directly or indirectly, by the Corporation or (b) any employee benefit plan of the Corporation or any corporation referred to in clause (a) shall be deemed to be doing so at the request of the Corporation.

 

SECTION 5.9.              Election of Applicable Law.  Any person entitled to be indemnified or to reimbursement or advancement of expenses as a matter of right pursuant to this Article V may elect to have the right to indemnification or reimbursement or advancement of expenses interpreted on the basis of the applicable law in effect at the time of the occurrence of the event or events giving rise to the applicable action, suit or proceeding, to the extent permitted by law, or on the basis of the applicable law in effect at the time such indemnification or reimbursement or advancement of expenses is sought.  Such election shall be made, by a notice in writing to the Corporation, at the time indemnification or reimbursement or advancement of expenses is sought; provided, however, that if no such notice is given, the right to

 

9


 

indemnification or reimbursement or advancement of expenses shall be determined by the law in effect at the time indemnification or reimbursement or advancement of expenses is sought.

 

ARTICLE VI
Books and Records

 

SECTION 6.1.              Location.  The books and records of the Corporation may be kept at such place or places within or outside the State of Delaware as the Board of Directors or the respective officers in charge thereof may from time to time determine.  The record books containing the names and addresses of all stockholders, the number and class of shares of stock held by each, and the dates when they respectively became the owners of record thereof shall be kept by the Secretary as prescribed in the By-Laws and by such officer or agent as shall be designated by the Board of Directors.

 

SECTION 6.2.              Addresses of Stockholders. Notice of meetings and all other corporate notices may be personally or mailed to each stockholder at the stockholder’s address as it appears on the records Corporation.

 

SECTION 6.3.              Fixing Date for Determination of Stockholders of Record.  (a) In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors and which record date shall not be more than 60 nor less than 10 days before the date of such meeting.  If no record date is fixed by the Board of Directors, the record date for determining the stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held.  A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

(b)           In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors and which date shall not be more than 10 days after the date upon which the resolution fixing the record date is adopted by the Board of Directors.  If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in this State, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded.  Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested.  If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by this chapter, the record date for determining stockholders entitled to consent to corporate action in writing

 

10


 

without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.

 

(c)           In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion, or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted and which record date shall be not more than 60 days prior to such action.  If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

 

ARTICLE VII
Certificates Representing Stock

 

SECTION 7.1.              Certificates; Signatures.  The shares of the Corporation shall be represented by certificates, provided that the Board of Directors of the Corporation may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares.  Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation.  Notwithstanding the adoption of such a resolution by the Board of Directors, every holder of stock represented by certificates and upon request every holder of uncertificated shares shall be entitled to have a certificate, signed by or in the name of the Corporation by the Chairman or Vice Chairman of the Board of Directors, or the President or Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, representing the number of shares registered in certificate form.  Any and all signatures on any such certificate may be facsimiles.  In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent; or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent, or registrar at the date of issue.  The name of the holder of record of the shares represented thereby, with the number of such shares and the date of issue, shall be entered on the books of the Corporation.

 

SECTION 7.2.              Transfers of Stock.  Upon compliance with provisions restricting the transfer or registration of transfer of shares of stock, if any, shares of capital stock shall be transferable on the books of the Corporation only by the holder of record thereof in person, or by duly authorized attorney, upon surrender and cancellation of certificates for a like number of shares, properly endorsed, and the payment of all taxes due thereon.

 

SECTION 7.3.              Fractional Shares.  The Corporation may, but shall not be required to, issue certificates for fractions of a share where necessary to effect authorized transactions, or the Corporation may pay in cash the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined, or it may issue scrip in registered or bearer form over the manual or facsimile signature of an officer of the Corporation or of its agent, exchangeable as therein provided for full shares, but such scrip shall not entitle the holder to any rights of a stockholder except as therein provided.

 

11


 

The Board of Directors shall have power and authority to make all such rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificates representing shares of the Corporation.

 

SECTION 7.4.              Lost, Stolen or Destroyed Certificates.  The Corporation may issue a new certificate of stock in place of any certificate theretofore issued by it that is alleged to have been lost, stolen, or destroyed, and the Board of Directors may require the owner of any allegedly lost, stolen, or destroyed certificate, or his legal representative, to give the Corporation a bond sufficient to indemnify the Corporation against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of any such new certificate.

 

ARTICLE VIII
Dividends

 

SECTION 8.1.              Subject always to the provisions of law and the Certificate of Incorporation, the Board of Directors shall have full power to determine whether any, and, if any, what part of any, funds legally available for the payment of dividends shall be declared as dividends and paid to stockholders.  The division of the whole or any part of such funds of the Corporation shall rest wholly within the lawful discretion of the Board of Directors, and it shall not be required at any time, against such discretion, to divide or pay any part of such funds among or to the stockholders as dividends or otherwise.  Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, thinks proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose as the Board of Directors shall determine to be in the best interests of the Corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created.

 

ARTICLE IX
Ratification

 

SECTION 9.1.              Any transaction questioned in any law suit on the ground of lack of authority, defective or irregular execution, adverse interest of a director, officer, or stockholder, non-disclosure, miscomputation, or the application of improper principles or practices of accounting, may be ratified before or after judgment, by the Board of Directors or by the stockholders, and if so ratified shall have the same force and effect as if the questioned transaction had been originally duly authorized.  Such ratification shall be binding upon the Corporation and its stockholders and shall constitute a bar to any claim or execution of any judgment in respect of such questioned transaction.

 

ARTICLE X
Corporate Seal

 

SECTION 10.1.            The corporate seal shall have inscribed thereon the name of the Corporation and the year of its incorporation, and shall be in such form and contain such other words and/or figures as the Board of Directors shall determine.  The corporate seal may be used

 

12


 

by printing, engraving, lithographing, stamping, or otherwise making, placing, or affixing, or causing to be printed, engraved, lithographed, stamped, or otherwise made, placed, or affixed, upon any paper or document, by any process whatsoever, an impression, facsimile, or other reproduction of said corporate seal.

 

ARTICLE XI
Fiscal Year

 

SECTION 11.1.            The fiscal year of the Corporation shall be fixed, and shall be subject to change, by the Board of Directors.  Unless otherwise fixed by the Board of Directors, the fiscal year of the Corporation shall be the calendar year.

 

ARTICLE XII
Waiver of Notice

 

SECTION 12.1.            Whenever notice is required to be given by these By-Laws or by the Certificate of Incorporation or by law, a written waiver thereof, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to notice.

 

ARTICLE XIII
Bank Accounts, Drafts, Contracts, Etc.

 

SECTION 13.1.            Bank Accounts and Drafts.  In addition to such bank accounts as may be authorized by the Board of Directors, the primary financial officer or any person designated by said primary financial officer, whether or not an employee of the Corporation, may authorize such bank accounts to be opened or maintained in the name and on behalf of the Corporation as may be deemed necessary or appropriate, payments from such bank accounts to be made upon and according to the check of the Corporation in accordance with the written instructions of said primary financial officer, or other person so designated by the Treasurer.

 

SECTION 13.2.            Contracts.  The Board of Directors may authorize any person or persons, in the name and on behalf of the Corporation, to enter into or execute and deliver any and all deeds, bonds, mortgages, contracts, and other obligations or instruments, and such authority may be general or confined to specific instances.

 

SECTION 13.3.            Proxies; Powers of Attorney; Other Instruments.  The Chairman, the President or any other person designated by either of them shall have the power and authority to execute and deliver proxies, powers of attorney, and other instruments on behalf of the Corporation in connection with the rights and powers incident to the ownership of stock by the Corporation.  The Chairman, the President or any other person authorized by proxy or power of attorney executed and delivered by either of them on behalf of the Corporation may attend and vote at any meeting of stockholders of any company in which the Corporation may hold stock, and may exercise on behalf of the Corporation any and all of the rights and powers incident to the ownership of such stock at any such meeting, or otherwise as specified in the proxy or power of attorney so authorizing any such person.  The Board of Directors, from time to time, may confer like powers upon any other person.

 

13


 

SECTION 13.4.            Financial Reports.  The Board of Directors may appoint the primary financial officer or other fiscal officer and/or the Secretary or any other officer to cause to be prepared and furnished to stockholders entitled thereto any special financial notice and/or financial statement, as the case may be, which may be required by any provision of law.

 

ARTICLE XIV
Amendments

 

SECTION 14.1.            The Board of Directors shall have power to adopt, amend, or repeal by-laws.  Any by-laws adopted by the Board of Directors may be repealed or changed, and new by-laws made, by the stockholders, and the stockholders may prescribe that any by-law made by them shall not be altered, amended, or repealed by the Board of Directors.

 

14




Exhibit 4.7

 

AMENDMENT TO
BYLAWS
OF
CORE-MARK INTERNATIONAL, INC.

 

Dated August 23, 2004

 

Section 2.2 of Article Il of the Bylaws of Core-Mark International, Inc. is hereby amended to read as follows:

 

2.2          Qualification; Number; Term; Remuneration. (a) Each director shall be at least 18 years of age. A director need not be a stockholder, a citizen of the United States, or a resident of the State of Delaware.  The number of directors constituting the entire Board of Directors shall be five, or such other number as may be fixed from time to time by resolution of the Board of Directors, one of whom may be selected by the Board of Directors to be its Chairman.  The use of the phrase “entire Board” herein refers to the total number of directors which the Corporation would have if there were no vacancies.

 




Exhibit 4.8

 

AMENDED AND RESTATED

 

ARTICLES OF INCORPORATION

 

OF

 

ARKYSODA, INC.

 

The undersigned, being a natural person of the age of twenty-one years or more, in order to form a corporation for the purposes hereinafter stated, under and pursuant to the Arkansas Business Corporation Act, hereby certifies the following Amended and Restated Articles of Incorporation as follows:

 

1.             The name of this corporation is changed from Arkysoda, Inc., to Mid Continent Distributors, Inc.

 

2.             The nature of the business of the corporation and the object or purposes proposed to be transacted, promoted or carried on by it, are as follows:

 

(a)           To engage in the business of wholesale sale and distribution of tobacco products, candies and sundries.

 

(b)           To buy, sell, lease, use, develop, mortgage, improve and otherwise deal in and dispose of all types of real or personal property in connection with the conduct of a business enterprise carried on by the Corporation.

 

(c)           To buy, sell, acquire and otherwise deal in or dispose of stock in other corporations.

 

(d)           To exercise all of the powers enumerated in Section 4 of the Arkansas Business Corporation Act and to conduct any other business enterprise not contrary to law.

 

3.             The period of existence of this corporation shall be perpetual.

 


 

4.             The registered office of this corporation shall be located at 2200 Worthen Bank Building, Little Rock, Arkansas 72201; and the name of the registered agent of this corporation at that address is John R. Tisdale.

 

5.             The total amount of the authorized capital stock of this corporation is 2,000 shares of common voting stock with $1.00 par value each.

 

6.             This corporation shall not commence business until at least $300.00 has been received as consideration for the issuance of shares.

 

7.             The name and post office address of each incorporator is as follows:

 

NAME

 

POST OFFICE ADDRESS

C. E. Lanphier

 

9 Berwyn Drive
Little Rock, Arkansas 72212

 

8.             The number of Directors constituting the initial Board of Directors shall be one (1).  At the meeting of the shareholders next following the time when the number of shareholders of record shall be more than one, additional Directors shall be elected so that the total number of Directors shall be five, and the number of Directors shall not exceed five unless the Bylaws of the corporation specifically so provide.

 

9.             The President and Secretary of the corporation shall have the authority on behalf of the corporation to enter into any contract between the corporation and all of its shareholders (a) imposing restrictions on the future transfer (whether inter vivos, by inheritance or by testamentary gift), hypothecation or other disposition of its shares; (b) granting purchase options to the corporation or its shareholders on then-currently issued and outstanding shares; or (c) requiring the corporation or its shareholders to purchase such then-currently outstanding shares upon stated contingencies.  None of the shareholders of the corporation shall have any preemptive rights with regard to the common voting stock of the corporation.

 

2


 

10.          No contract entered into by this corporation shall be invalid or unenforceable because of the interest of any Director in the contract, either directly or indirectly.

 

EXECUTED this 15th day of May, 1984.

 

 

/s/ C.E. Lanphier

 

C. E. Lanphier

 

3




Exhibit 4.9

 

CERTIFICATE OF AMENDMENT

 

TO ARTICLES OF INCORPORATION

 

MID-CONTINENT DISTRIBUTORS, INC.

 

Mid-Continent Distributors, Inc., a corporation duly organized and existing under and by virtue of the laws of the State of Arkansas, by its President and its Assistant Secretary, does hereby certify that:

 

A.            The name of the corporation is Mid-Continent Distributors, Inc.

 

B.            Attached hereto as Exhibit A is a copy of the Amendment to the Articles of Incorporation of this corporation changing its name to Core-Mark Midcontinent, Inc.

 

C.            The shareholders of the corporation adopted the Amendment to the Articles of Incorporation by an action pursuant to Section 64-220 of the Arkansas Business Corporation Act on May 10, 1985.

 

D.            The corporation presently has 2,000 shares outstanding and entitled to a vote.

 

E.            All 2,000 of the issued and outstanding shares of the corporation were cast in favor of the attached Amendment.

 

IN WITNESS WHEREOF, the undersigned hereby ,verify that the statements contained in the foregoing Certificate of Amendment are true and correct to the best of their knowledge and belief on this 10 day of May, 1985.

 

 

 

/s/ David Bershof

 

David Bershof, President

 

 

 

 

 

/s/ D. Charles Cornish

 

D. Charles Cornish

 

Assistant Secretary

 


 

EXHIBIT A

 

RESOLVED, that upon the recommendation of the Board of Directors of the corporation the Articles of Incorporation of the corporation shall be amended to amend Article 1 as follows:

 

1.             The name of this corporation is Core-Mark Midcontinent, Inc.

 




Exhibit 4.10

 

BYLAWS

 

OF

 

MID-CONTINENT DISTRIBUTORS, INC.

 

ARTICLE I

 

STOCK

 

1.             Certificates.  Certificates of stock shall be issued to each holder of fully paid stock in numerical order.  Each certificate shall be signed by the President and attested by the Secretary.  A record of each certificate shall be kept in the corporation’s records.

 

2.             Form.  The form of the certificate to represent stock ownership in the corporation shall be fixed by the original incorporators, and may be changed from time to time by the Board of Directors.

 

3.             Transfer.  Shares of the corporation shall be transferred on its books only upon the surrender to the corporation of the share certificates duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer.  In that event, the surrendered certificates shall be cancelled, new certificates issued to the person entitled to them, and the transaction recorded on the books of the corporation.

 

4.             Lost Certificates.  The Board of Directors shall direct a new certificate to be issued in place of a certificate alleged to have been destroyed or lost if the owner makes an affidavit that it is destroyed or lost, but the Board in its discretion may, as a condition precedent to issuing the new certificate, require the owner to give the corporation a bond, security, or an indemnity acceptable to the Board to indemnify and protect the corporation, its officers and directors against any claim that may be made against the corporation on the certificate allegedly destroyed or lost.

 

ARTICLE II

 

STOCKHOLDERS

 

1.             Annual Meeting.  The annual meeting of the stock­ holders of this corporation shall be held at such place within or without the State of Arkansas as the Directors shall designate, the date of the meeting to be fixed by the Directors.

 

2.             Special Meetings.  Special meetings of the stock­ holders may be called at any time by the President, by resolution of the Board of Directors, or by any member of the Board of Directors.

 

3.             Notice.  Written notice of stockholders’ meetings shall be given either personally or by mail, to each stock­ holder of record at his address, as the same appears on the stock book of the corporation, not less than ten (10) nor more than fifty (50) days before the meeting is to be held.  If a proposal to increase the authorized capital stock or bonded indebtedness is to be

 


 

submitted, notice must be given not less than sixty (60) nor more than seventy-five (75) days before the meeting.  In case of special meetings, the notice shall also include a statement of the purpose or purposes for which the meeting is called.  If at any annual meeting there shall be presented a proposal to increase the authorized capital stock or bonded indebtedness, to dissolve, merge or consolidate, or to sell, lease, exchange, or otherwise dispose of all or substantially all of the corporation’s assets, to amend the Articles of Incorporation or to effect any other fundamental corporate change, then that annual meeting shall be deemed, for the purpose of notice, a special meeting.  Notice of any meeting or service of such notice may be waived in writing before or after the meeting by a stockholder or by the attendance in person or by proxy of any stockholder at such meeting.  No irregularity of notice of any regular or Special meeting of the stockholders shall invalidate such meeting or any proceeding thereat.

 

4.             Quorum.  A quorum at any meeting of the stockholders shall consist of a majority in interest in the stock issued and outstanding then entitled to vote, represented in person or by proxy.  A majority of such quorum shall decide any question that may come before the meeting.

 

5.             Proxies.  A stockholder may vote at any meeting of the stockholders by being present in person or by giving to some other person present at the meeting a written proxy.

 

6.             Voting.  In the election of Directors, the holder of each share of stock then entitled to vote shall be entitled to cast votes equal to the number of Directors to be elected. Directors shall be elected at the annual meeting of Stock­ holders.  In all other matters to be determined at a stock­ holders’ meeting the holders of shares of stock then entitled to vote shall be entitled to cast votes equal to the number of shares held.

 

ARTICLE III

 

DIRECTORS

 

1.             General Powers.  The business and affairs of the corporation shall be managed by its Board of Directors.

 

2.             Number, Tenure and Qualifications.  The number of Directors of the corporation shall be the number designated by the stockholders.  Each Director shall hold office for the term for which he is elected or until his successor shall have been elected and qualified.  Directors need not be residents of Arkansas nor shareholders of the corporation.

 

3.             Vacancies.  If a vacancy occurs in the Board of Directors by reason of death or resignation, or if the stock­ holders fail to fill all the vacancies in the Board of Directors at the annual meeting of stockholders or any meeting for the purpose of electing Directors, the vacancies shall be filled by the affirmative vote of a majority of the remaining members of the Board of Directors.

 

4.             Resignations.  A Director may resign at any time by filing his written resignation with the Secretary.

 

5.             Removal.  A Director may be removed at any time, with or without cause, by a special stockholders’ meeting called expressly for that purpose.

 

2


 

6.             Meeting.  Meetings of the Board of Directors shall be held on call of any three (3) members after giving notice in writing or otherwise to all members at least twenty-four (24) hours prior thereto.  Notice of any meeting or service of such notice may be waived in writing before or after the meeting by a Director or by attendance at such meeting.  No irregularity of notice of such meeting shall invalidate such meeting or any proceeding thereat.

 

7.             Quorum.  A quorum of any meeting of the Board of Directors shall consist of a majority of the entire membership of the Board. A majority of such quorum shall decide any question that may come before the meeting.

 

8.             Informal Action.  Action taken by a majority of the Directors without a meeting in respect to any corporate matter shall be valid if, before or after such action, all Board members sign and file with the Secretary for inclusion in the corporate minute book a memorandum showing (a) the nature of the action taken, (b) the consent of each Board member, and (c) the names of Directors approving and Directors opposing such action.

 

9.             Proxies.  Directors may not vote by proxy.

 

10.          Election of Officers.  Officers of the corporation shall be elected by the Board of Directors and shall serve at the pleasure of the Board of Directors subject to any contracts of employment entered into by the corporation.  The Board of Directors shall fix the compensation of all officers of the corporation.

 

ARTICLE IV

 

OFFICERS

 

1.             Number.  The officers of the corporation shall be a Chairman, one or more Vice Chairmen (the number thereof to be determined by the Board of Directors), a President, one or more Vice Presidents (the number thereof to be determined by the Board of Directors), a Treasurer, a Secretary and such other officers, and assistant officers as may be elected in accordance with these bylaws.  Any two or more offices may be held by the same person, except the offices of President and Secretary.

 

2.             Vacancies.  When a vacancy occurs in one of the executive offices by death, resignation or otherwise, it shall be filled by the Board of Directors.  The officer so selected shall hold office until his successor is chosen and qualified.

 

3.             Execution of Written Instruments.  Leases, deeds, mortgages, and contracts not in the ordinary course of business shall be executed by the President or a Vice President and attested by the Secretary, or an Assistant Secretary unless the Board of Directors shall in a particular situation designate another procedure for their execution.  The Board of Directors may authorize any one or more officers and/or employees to execute contracts in the ordinary course of business on behalf of the corporation, and such authority may be general or confined to specific instances.

 

3


 

4.             Checks and Notes.  Checks, notes, drafts and demands for money shall be signed by any one or more officers and/or employees who may from time to time be designated by the Board of Directors.

 

5.             Voting Shares in Other Corporations.  In the absence of other arrangements by the Board of Directors, shares of stock issued by any other corporation and owned or controlled by this corporation may be voted at any stockholders’ meeting of the other corporation by the President of this corporation or, if he is not present at the meeting, by a Vice President of this corporation; and in the event neither the President nor the Vice-President is to be present at a meeting, the shares may be voted by such person as the President and Secretary of the corporation shall by duly elected proxy designate to represent the corporation at the meeting.

 

6.             Reimbursement of Payments.  Any payments made to an officer such as salary, commission, bonus, interest, or rent, or entertainment expense incurred by him, which shall be dis­ allowed in whole or in part as a deductible expense by the Internal Revenue Service, shall be reimbursed by such officer to the corporation to the full extent of such disallowance.  In lieu of payment by the officer, subject to the determination of the Board of Directors, proportionate amounts may be withheld from his future compensation payments until the amount owed to the corporation has been recovered.

 

ARTICLE V

 

AMENDMENTS

 

Bylaws may be adopted, amended or repealed at any meeting of the Board of Directors by the vote of a majority thereof.

 

 

BOARD OF DIRECTORS:

 

 

 

MID-CONTINENT DISTRIBUTORS, INC.

 

4




Exhibit 4.11

 

AMENDMENT TO
BYLAWS
OF
CORE-MARK MID-CONTINENT INC.

 

Dated August 23, 2004

 

Section 2 of Article III of the Bylaws of Core-Mark Mid-Continent, Inc. is hereby amended to read as follows:

 

2.             Number, Tenure and Qualifications.  The number of directors of the Corporation shall be the number designated by the stockholders.  The number of directors constituting the entire Board of Directors shall be two, or such other number as may be fixed from time to time by resolution of the Board of Directors or the stockholders.  Each director shall hold office for the term for which he is elected or until his successor shall have been elected and qualified. Directors need not be residents of Arkansas nor shareholders of the corporation.

 




Exhibit 4.12

 

RESTATED ARTICLES OF INCORPORATION
OF
CORE-MARK INTERRELATED COMPANIES, INC.

 

ONE:              The name of this corporation is Core-Mark Interrelated Companies, Inc.

 

TWO:             The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code.

 

THREE:        This corporation is authorized to issue 1,000,000 shares of capital stock all of one class, to be designated “Common Stock,” and the par value of each of said shares shall be One Dollar ($1.00).

 

FOUR:           This corporation hereby elects to be governed by all of the provisions of the General Corporation Law effective January l, 1977, not otherwise applicable to it under Chapter 23 thereof.

 

FIVE:             The liability of the directors of the corporation for monetary damages shall be eliminated to the fullest extent permissible under California law.

 

SIX:                This corporation is authorized to indemnify the directors and officers of this corporation to the fullest extent permissible under California law.

 




Exhibit 4.13

 

RESTATED
BYLAWS

 

for the regulation, except as
otherwise provided by statute or
the Articles of Incorporation, of

 

CORE-MARK INTERRELATED COMPANIES, INC.
a California corporation

 


 

TABLE OF CONTENTS

 

Section

 

Title

 

Page

 

 

 

 

 

 

 

ARTICLE I.                            GENERAL PROVISIONS

 

 

 

 

 

 

 

1.01

 

Principal Executive Office

 

1

1.02

 

Number of Directors

 

1

 

 

 

 

 

 

 

ARTICLE II.                       SHARES AND SHAREHOLDERS

 

 

 

 

 

 

 

2.01

 

Meetings of Shareholders

 

1

 

 

 

 

 

 

 

(a)

Place of Meetings

 

1

 

 

(b)

Annual Meetings

 

1

 

 

(c)

Special Meetings

 

2

 

 

(d)

Notice of Meetings

 

2

 

 

(e)

Adjourned Meeting and Notice Thereof

 

3

 

 

(f)

Waiver of Notice

 

3

 

 

(g)

Quorum

 

3

 

 

 

 

 

 

2.02

 

Action Without a Meeting

 

4

2.03

 

Voting of Shares

 

4

 

 

 

 

 

 

 

(a)

In General

 

4

 

 

(b)

Cumulative Voting

 

4

 

 

(c)

Election by Ballot

 

5

 

 

 

 

 

 

2.04

 

Proxies

 

5

2.05

 

Inspectors of Election

 

5

 

 

 

 

 

 

 

(a)

Appointment

 

5

 

 

(b)

Duties

 

6

 

 

 

 

 

 

2.06

 

Record Date

 

6

2.07

 

Share Certificates

 

7

 

 

 

 

 

 

 

(a)

In General

 

7

 

 

(b)

Two or More Classes or Series

 

7

 

 

(c)

Special Restrictions

 

7

 

 

 

 

 

 

2.08

 

Transfer of Certificates

 

8

2.09

 

Lost Certificates

 

8

 

i


 

Section

 

Title

 

Page

 

 

 

 

 

 

 

ARTICLE III.                  DIRECTORS

 

 

 

 

 

 

 

3.01

 

Powers

 

9

3.02

 

Committees of the Board

 

9

3.03

 

Election and Term of Office

 

10

3.04

 

Vacancies

 

10

3.05

 

Removal

 

10

3.06

 

Resignation

 

10

3.07

 

Meetings of the Board of Directors and Committees

 

11

 

 

 

 

 

 

 

(a)

Regular Meetings

 

11

 

 

(b)

Organization Meeting

 

11

 

 

(c)

Special Meetings

 

11

 

 

(d)

Notices; Waivers

 

11

 

 

(e)

Adjournment

 

11

 

 

(f)

Place of Meeting

 

11

 

 

(g)

Presence by Conference Telephone Call

 

11

 

 

(h)

Quorum

 

12

 

 

 

 

 

 

3.08

 

Action Without Meeting

 

12

3.09

 

Committee Meetings

 

12

 

 

 

 

 

 

 

ARTICLE IV.                   OFFICERS

 

 

 

 

 

 

 

4.01

 

Officers

 

12

4.02

 

Elections

 

12

4.03

 

Other Officers

 

12

4.04

 

Removal

 

13

4.05

 

Resignation

 

13

4.06

 

Vacancies

 

13

4.07

 

Chairman of the Board

 

13

4.08

 

President

 

13

4.09

 

Vice President

 

14

4.10

 

Secretary

 

14

4.11

 

Chief Financial Officer

 

14

4.12

 

Treasurer

 

14

 

 

 

 

 

 

 

ARTICLE V.                        MISCELLANEOUS

 

 

 

 

 

 

 

5.01

 

Records and Reports

 

15

 

 

 

 

 

 

 

(a)

Books of Account and Proceedings

 

15

 

 

(b)

Annual Report

 

15

 

 

(c)

Shareholders’ Requests for Financial Reports

 

15

 

ii


 

Section

 

Title

 

Page

 

 

 

 

 

5.02

 

Rights of Inspection

 

15

 

 

 

 

 

 

 

(a)

By Shareholders

 

15

 

 

 

 

 

 

 

 

 

(1)

Record of Shareholders

 

15

 

 

 

(2)

Corporate Records

 

16

 

 

 

(3)

Bylaws

 

16

 

 

 

 

 

 

 

 

 

(b)

By Directors

 

16

 

 

 

 

 

5.03

 

Checks, Drafts, Etc.

 

17

5.04

 

Representation of Shares of Other Corporations

 

17

5.05

 

Indemnification and Insurance

 

17

 

 

 

 

 

 

 

(a)

Right to Indemnification

 

17

 

 

(b)

Right of Claimant to Bring Suit

 

18

 

 

(c)

Non-Exclusivity of Rights

 

18

 

 

(d)

Insurance

 

18

 

 

(e)

Indemnification of Employees and Agents of the Corporation

 

19

 

 

 

 

 

 

5.06

 

Employee Stock Purchase Plans

 

19

5.07

 

Construction and Definitions

 

20

 

 

 

 

 

 

 

ARTICLE VI.                   AMENDMENTS

 

 

 

 

 

 

 

6.01

 

Power of Shareholders

 

20

6.02

 

Power of Directors

 

20

 

iii


 

RESTATED
BYLAWS

 

for the regulation, except as otherwise provided
by statute or the Articles of Incorporation,
of

 

CORE-MARK INTERRELATED COMPANIES, INC.
a California corporation

 

ARTICLE I     GENERAL PROVISIONS

 

Section 1.01                             Principal Executive Office.  The principal executive office of the corporation shall be located at 395 Oyster Point Boulevard, Suite 415, San Francisco, California 94080.  The Board of Directors shall have the power to change the principal office to another location and may fix and locate one or more subsidiary offices within or without the State of California.

 

Section 1.02                             Number of Directors.  The number of directors of the corporation shall be four (4) until changed by an amendment to these bylaws duly adopted by the vote or written consent of a majority of the outstanding shares entitled to vote; provided, however, that if the number of directors has been increased to more than five, a bylaw reducing the number of directors to a number less than five cannot be adopted if the votes cast against its adoption at a meeting or the shares not consenting in the case of action by written consent are equal to more than 16-2/3 percent of the outstanding shares entitled to vote.

 

ARTICLE II     SHARES AND SHAREHOLDERS

 

Section 2.01                             Meetings of Shareholders.

 

(a)                                 Place of Meetings.  Meetings of shareholders shall be held at any place within or without the State of California designated by the Board of Directors.  In the absence of any such designation, shareholders’ meetings shall be held at the principal executive office of the corporation.

 

(b)                                 Annual Meetings.  An annual meeting of the shareholders of the corporation shall be held on such date and at such time as may be designated by the Board of Directors, in no case more than 15 months after the organization of the

 

1


 

corporation or after its last annual meeting, in accordance with Section 600 of the California General Corporation Law.  Should said day fall upon a legal holiday, the annual meeting of shareholders shall be held at the same time on the next day thereafter ensuing which is a full business day.  At each annual meeting directors shall be elected, and any other proper business may be transacted.

 

(c)                                  Special Meetings.  Special meetings of the shareholders may be called by the Board of Directors, the chairman of the board, the president, or by the holders of shares entitled to cast not less than 10% of the votes at the meeting.  Upon request in writing to the chairman of the board, the president, any vice president or the secretary by any person (other than the board) entitled to call a special meeting of shareholders, the officer forthwith shall cause notice to be given to the shareholders entitled to vote that a meeting will be held at a time requested by the person or persons calling the meeting, not less than 35 nor more than 60 days after the receipt of the request.  If the notice is not given within 20 days after receipt of the request, the persons entitled to call the meeting may give the notice.

 

(d)                                 Notice of Meetings.  Notice of any shareholders’ meeting shall be given not less than 10 nor more than 60 days before the date of the meeting to each shareholder entitled to vote thereat.  Such notice shall state the place, date and hour of the meeting and (i) in the case of a special meeting, the general nature of the business to be transacted, and no other business may be transacted, or (ii) in the case of the annual meeting, those matters which the Board, at the time of the giving of the notice, intends to present for action by the shareholders.  The notice of any meeting at which directors are to be elected shall include the names of nominees intended at the time of the notice to be presented by the board for election.

 

If action is proposed to be taken at any meeting, which action is within Sections 310, 902, 1201, 1900 or 2007 of the General Corporation Law of the State of California, the notice shall also state the general nature of that proposal.

 

Notice of a shareholders’ meeting shall be given either personally or by first-class mail, or other means of written communication, charges prepaid, addressed to the shareholder at the address of such shareholder appearing on the books of the corporation or given by the shareholder to the corporation for the purpose of notice; or if no such address appears or is given, at the place where the principal executive office of the corporation is located or by publication at least once in a newspaper of general circulation in the county in which the principal executive office is located.

 

2


 

The notice shall be deemed to have been given at the time when delivered personally or deposited in the mail or sent by other means of written communication.  An affidavit of mailing of any notice executed by the secretary, assistant secretary or any transfer agent, shall be prima facie evidence of the giving of the notice.

 

(e)                                  Adjourned Meeting and Notice Thereof.  Any meeting of shareholders may be adjourned from time to time by the vote of a majority of the shares represented either in person or by proxy whether or not a quorum is present.  When a shareholders’ meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken.  At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting.  However, if the adjournment is for more than 45 days or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

(f)                                   Waiver of Notice.  The transactions of any meeting of shareholders, however called and noticed, and wherever held, are as valid as though had at a meeting duly held after regular call and notice, if a quorum is present either in person or by proxy, and if, either before or after the meeting, each of the persons entitled to vote, not present in person or by proxy, signs a written waiver of notice or a consent to the holding of the meeting or an approval of the minutes thereof.  The waiver of notice or consent need not specify either the business to be transacted or the purpose of any annual or special meeting of shareholders, except that if action is taken or proposed to be taken for approval of any of those matters specified in the second paragraph of subparagraph (d) of Section 2.01 of this Article II, the waiver of notice or consent shall state the general nature of the proposal.  All such waivers, consents and approvals shall be filed with the corporate records or made a part of the minutes of the meeting.

 

(g)                                  Quorum.  The presence in person or by proxy of the persons entitled to vote a majority of the shares entitled to vote at any meeting shall constitute a quorum for the transaction of business.  If a quorum is present, the affirmative vote of the majority of the shares represented and voting at the meeting (which shares voting affirmatively also constitute at least a majority of the required quorum) shall be the act of the shareholders, unless the vote of a greater number or voting by classes is required by law or the Articles of Incorporation of the corporation.

 

3


 

The shareholders present at a duly called or held meeting at which a quorum is present may continue to transact business until adjournment notwithstanding the withdrawal of enough shareholders to leave less than a quorum, provided that any action taken (other than adjournment) must be approved by at least a majority of the shares required to constitute a quorum.

 

Section 2.02                             Action Without a Meeting.  Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting and without prior notice, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.  Notwithstanding the foregoing, directors may not be elected by written consent except by unanimous written consent of all shares entitled to vote for the election of directors, except as provided by Section 3.04 hereof.

 

Where the approval of shareholders is given without a meeting by less than unanimous written consent, unless the consents of all shareholders entitled to vote have been solicited in writing, the secretary shall give prompt notice of the corporate action approved by the shareholders without a meeting.  In the case of approval of transactions pursuant to Section 310, 317, 1201 or 2007 of the General Corporation Law of the State of California, the notice shall be given at least ten (10) days before the consummation of any action authorized by that approval.  Such notice shall be given in the same manner as notice of shareholders’ meeting.

 

Section 2.03                             Voting of Shares.

 

(a)                                 In General.  Except as otherwise provided in the Articles of Incorporation and subject to subparagraph (b) hereof, each outstanding share, regardless of class, shall be entitled to one vote on each matter submitted to a vote of shareholders.

 

(b)                                 Cumulative Voting.  At any election of directors, every shareholder complying with this paragraph (b) and entitled to vote may cumulate his or her votes and give one candidate a number of votes equal to the number of directors to be elected multiplied by the number of votes to which the shareholder’s shares are entitled, or distribute the shareholder’s votes on the same principle among as many candidates as the shareholder thinks fit.  No shareholder shall be entitled to cumulate votes (i.e., cast for any one or more candidates a number of votes greater than the number of votes which such shareholder normally is entitled to cast) unless

 

4


 

such candidate or candidates’ names have been placed in nomination prior to the voting and the shareholder has given notice at the meeting prior to the voting of the shareholder’s intention to cumulate the shareholder’s votes.  If any one shareholder has given such notice, all shareholders may cumulate their votes for candidates in nomination.  In any election of directors, the candidates receiving the highest number of affirmative votes up to the number of directors to be elected by such shares are elected; votes against a director and votes withheld shall have no legal effect.

 

(c)                                  Election by Ballot.  Elections for directors need not be by ballot unless a shareholder demands election by ballot at the meeting and before the voting begins.

 

Section 2.04                             Proxies.  Every person entitled to vote shares may authorize another person or persons to act by proxy with respect to such shares.  No proxy shall be valid after the expiration of 11 months from the date thereof unless otherwise provided in the proxy.  Every proxy continues in full force and effect until revoked by the person executing it prior to the vote pursuant thereto, except as otherwise herein provided.  Such revocation may be effected by a writing delivered to the corporation stating that the proxy is revoked or by a subsequent proxy executed by the person executing the prior proxy and presented to the meeting, or as to any meeting by attendance at such meeting and voting in person by the person executing the proxy.  The dates contained on the forms of proxy presumptively determine the order of execution, regardless of the postmark dates on the envelopes in which they are mailed.  A proxy is not revoked by the death or incapacity of the maker unless, before the vote is counted, written notice of such death or incapacity is received by the corporation.  The revocability of a proxy that states on its face that it is irrevocable shall be governed by the provisions of Sections 705(e) and 705(f) of the California General Corporation Law.

 

Section 2.05                             Inspectors of Election.

 

(a)                                 Appointment.  In advance of any meeting of shareholders the Board may appoint inspectors of election to act at the meeting and any adjournment thereof.  If inspectors of election are not so appointed, or if any persons so appointed fail to appear or refuse to act, the chairman of any meeting of shareholders may, and on the request of any shareholder or a shareholder’s proxy shall, appoint inspectors of election (or persons to replace those who so fail or refuse) at the meeting.  The number of inspectors shall be either one or three.  If appointed at a meeting on the request of one or more shareholders or proxies, the majority of shares represented in person or by proxy shall determine whether one or three inspectors are to be appointed.

 

5


 

(b)                                 Duties.  The inspectors of election shall determine the number of shares outstanding and the voting power of each, the shares represented at the meeting, the existence of a quorum and the authenticity, validity and effect of proxies, receive votes, ballots or consents, hear and determine all challenges and questions in any way arising in connection with the right to vote, count and tabulate all votes or consents, determine when the polls shall close, determine the result and do such acts as may be proper to conduct the election or vote with fairness to all shareholders.  The inspectors of election shall perform their duties impartially, in good faith, to the best of their ability and as expeditiously as is practical.  If there are three inspectors of election, the decision, act or certificate of a majority is effective in all respects as the decision, act or certificate of all.  Any report or certificate made by the inspectors of election is prima facie evidence of the facts stated therein.

 

Section 2.06                             Record Date.  In order that the corporation may determine the shareholders entitled to notice of any meeting or to vote or entitled to receive payment of any dividend or other distribution or allotment of any rights or entitled to exercise any rights in respect of any other lawful action, the Board may fix, in advance, a record date, which shall not be more than 60 nor less than 10 days prior to the date of such meeting nor more than 60 days prior to any other action.  If no record date is fixed:

 

(1)                                 The record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the business day next preceding the day on which notice is given or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held.

 

(2)                                 The record date for determining shareholders entitled to give consent to corporate action in writing without a meeting, when no prior action by the Board has been taken, shall be the day on which the first written consent is given.

 

(3)                                 The record date for determining shareholders for any other purpose shall be at the close of business on the day on which the board adopts the resolution relating thereto, or the 60th day prior to the date of such other action, whichever is later.

 

A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting unless the board fixes a new

 

6


 

record date for the adjourned meeting, but the board shall fix a new record date if the meeting is adjourned for more than 45 days from the date set for the original meeting.

 

Shareholders at the close of business on the record date are entitled to notice and to vote or to receive the dividend, distribution or allotment of rights or to exercise the rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date, except as otherwise provided in the Articles of Incorporation or by agreement or in the California General Corporation Law.

 

Section 2.07                             Share Certificates.

 

(a)                                 In General.  The corporation shall issue a certificate or certificates representing shares of its capital stock.  Each certificate so issued shall be signed in the name of the corporation by the chairman or vice chairman of the board or the president or a vice president and by the chief financial officer or an assistant treasurer or the secretary or any assistant secretary, shall state the name of the record owner thereof and shall certify the number of shares and the class or series of shares represented thereby.  Any or all of the signatures on the certificate may be facsimile.  In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were an officer, transfer agent or registrar at the date of issue.

 

(b)                                 Two or More Classes or Series.  If the shares of the corporation are classified or if any class of shares has two or more series, there shall appear on the certificate one of the following:

 

(1)                                 A statement of the rights, preferences, privileges, and restrictions granted to or imposed upon the respective classes or series of shares authorized to be issued and upon the holders thereof; or

 

(2)                                 A summary of such rights, preferences, privileges and restrictions with reference to the provisions of the Articles of Incorporation and any certificates of determination establishing the same; or

 

(3)                                 A statement setting forth the office or agency of the corporation from which shareholders may obtain upon request and without charge, a copy of the statement referred to in subparagraph (1).

 

(c)                                  Special Restrictions.  There shall also appear on the certificate (unless stated or summarized under subpara-

 

7


 

graph (1) or (2) of subparagraph (b) above) the statements required by all of the following clauses to the extent applicable:

 

(1)                                 The fact that the shares are subject to restrictions upon transfer.

 

(2)                                 If the shares are assessable, a statement that they are assessable.

 

(3)                                 If the shares are not fully paid, a statement of the total consideration to be paid therefor and the amount paid thereon.

 

(4)                                 The fact that the shares are subject to a voting agreement or an irrevocable proxy or restrictions upon voting rights contractually imposed by the corporation.

 

(5)                                 The fact that the shares are redeemable.

 

(6)                                 The fact that the shares are convertible and the period for conversion.

 

Section 2.08                             Transfer of Certificates.  Where a certificate for shares is presented to the corporation or its transfer clerk or transfer agent with a request to register a transfer of shares, the corporation shall register the transfer, cancel the certificate presented, and issue a new certificate if:  (a) the security is endorsed by the appropriate person or persons; (b) reasonable assurance is given that those endorsements are genuine and effective; (c) the corporation has no notice of adverse claims or has discharged any duty to inquire into such adverse claims; (d) any applicable law relating to the collection of taxes has been complied with; (e) the transfer is not in violation of any federal or state securities law; and (f) the transfer is in compliance with any applicable agreement governing the transfer of the shares.

 

Section 2.09                             Lost Certificates.  Where a certificate has been lost, destroyed or wrongfully taken, the corporation shall issue a new certificate in place of the original if the owner: (a) so requests before the corporation has notice that the certificate has been acquired by a bona fide purchaser; (b) files with the corporation a sufficient indemnity bond, if so requested by the Board of Directors; and (c) satisfies any other reasonable requirements as may be imposed by the Board.  Except as above provided, no new certificate for shares shall be issued in lieu of an old certificate unless the corporation is ordered to do so by a court in the judgment in an action brought under Section 419(b) of the California General Corporation Law.

 

8


 

ARTICLE III     DIRECTORS

 

Section 3.01                             Powers.  Subject to the provisions of the California General Corporation Law and the Articles of Incorporation, the business and affairs of the corporation shall be managed and all corporate powers shall be exercised by or under the direction of the Board of Directors.  The Board may delegate the management of the day-to-day operations of the business of the corporation to a management company or other person provided that the business and affairs of the corporation shall be managed and all corporate powers shall be exercised under the ultimate direction of the Board.

 

Section 3.02                             Committees of the Board.  The Board may, by resolution adopted by a majority of the authorized number of directors, designate one or more committees, each consisting of two or more directors, to serve at the pleasure of the Board.  The Board may designate one or more directors as alternate members of any committee, who may replace any absent member at any meeting of the committee.  The appointment of members or alternate members of a committee requires the vote of a majority of the authorized number of directors.  Any such committee, to the extent provided in the resolution of the Board, shall have all the authority of the Board, except with respect to:

 

(1)                                 The approval of any action which also requires, under the California General Corporation Law, shareholders’ approval or approval of the outstanding shares;

 

(2)                                 The filling of vacancies on the Board or in any committee.

 

(3)                                 The fixing of compensation of the directors for serving on the Board or on any committee.

 

(4)                                 The amendment or repeal of bylaws or the adoption of new bylaws.

 

(5)                                 The amendment or repeal of any resolution of the Board which by its express terms is not so amendable or repealable.

 

(6)                                 A distribution (within the meaning of the California General Corporation Law) to the shareholders of the corporation, except at a rate or in a periodic amount or within a price range determined by the Board.

 

(7)                                 The appointment of other committees of the Board or the members thereof.

 

9


 

Section 3.03                             Election and Term of Office.  The directors shall be elected at each annual meeting of shareholders but, if any such annual meeting is not held or the directors are not elected thereat, the directors may be elected at any special meeting of shareholders held for that purpose.  Each director, including a director elected to fill a vacancy, shall hold office until the expiration of the term for which elected and until a successor has been elected and qualified.

 

Section 3.04                             Vacancies.  Except for a vacancy created by the removal of a director, vacancies on the Board may be filled by approval of the Board or, if the number of directors then in office is less than a quorum, by (a) the unanimous written consent of the directors then in office, (b) the affirmative vote of a majority of the directors then in office at a meeting held pursuant to notice or waivers of notice under the California General Corporation Law, or (c) a sole remaining director.  The shareholders may elect a director or directors at any time to fill any vacancy or vacancies not filled by the directors, but any such election by written consent requires the consent of a majority of the outstanding shares entitled to vote.

 

The Board of Directors shall have the power to declare vacant the office of a director who has been declared of unsound mind by an order of court, or convicted of a felony.

 

Section 3.05                             Removal.  Any or all of the directors may be removed without cause if such removal is approved by the vote of a majority of the outstanding shares entitled to vote, except that no director may be removed (unless the entire board is removed) when the votes cast against removal, or not consenting in writing to such removal, would be sufficient to elect such director if voted cumulatively at an election at which the same total number of votes were cast (or, if such action is taken by written consent, all shares entitled to vote were voted) and the entire number of directors authorized at the time of the director’s most recent election were then being elected.

 

Section 3.06                             Resignation.  Any director may resign effective upon giving written notice to the chairman of the board, the president, the secretary or the Board of Directors of the corporation, unless the notice specifies a later time for the effectiveness of such resignation.  If the resignation is effective at a future time, a successor may be elected to take office when the resignation becomes effective.

 

10


 

Section 3.07                             Meetings of the Board of Directors and Committees.

 

(a)                                 Regular Meetings.  Regular meetings of the Board of Directors may be held without notice at such time and place within or without the State as may be designated from time to time by resolution of the Board or by written consent of all members of the Board or in these bylaws.

 

(b)                                 Organization Meeting.  Immediately following each annual meeting of shareholders the Board of Directors shall hold a regular meeting for the purpose of organization, election of officers, and the transaction of other business.  Notice of such meetings is hereby dispensed with.

 

(c)                                  Special Meetings.  Special meetings of the Board of Directors for any purpose or purposes may be called at any time by the chairman of the board or the president or, by any vice president or the secretary or any two directors.

 

(d)                                 Notices; Waivers.  Special meetings shall be held upon four days’ notice by mail or forty-eight hours’ notice delivered personally or by telephone or telegraph.  Notice of a meeting need not be given to any director who signs a waiver of notice or a consent to holding the meeting or an approval of the minutes thereof, whether before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to such director.  All such waivers, consents and approvals shall be filed with the corporate records or made a part of the minutes of the meeting.

 

(e)                                  Adjournment.  A majority of the directors present, whether or not a quorum is present, may adjourn any meeting to another time and place.  If the meeting is adjourned for more than 24 hours, notice of such adjournment to another time and place shall be given prior to the time of the adjourned meeting to the directors who were not present at the time of adjournment.

 

(f)                                   Place of Meeting.  Meetings of the Board may be held at any place within or without the state which has been designated in the notice of the meeting or, if not stated in the notice or there is no notice, then such meeting shall be held at the principal executive office of the corporation, or such other place designated by resolution of the Board.

 

(g)                                  Presence by Conference Telephone Call.  Members of the Board may participate in a meeting through use of conference telephone or similar communications equipment, so long as all members participating in such meeting can hear one

 

11


 

another.  Such participation constitutes presence in person at such meeting.

 

(h)                                 Quorum.  A majority of the authorized number of directors constitutes a quorum of the Board for the transaction of business.  Every act or decision done or made by a majority of the directors present at a meeting duly held at which a quorum is present is the act of the Board of Directors, unless a greater number be required by law or by the Articles of Incorporation.  A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority of the required quorum for such meeting.

 

Section 3.08                             Action Without Meeting.  Any action required or permitted to be taken by the Board of Directors, may be taken without a meeting if all members of the Board shall individually or collectively consent in writing to such action.  Such written consent or consents shall be filed with the minutes of the proceedings of the Board.  Such action by written consent shall have the same force and effect as a unanimous vote of such directors.

 

Section 3.09                             Committee Meetings.  The provisions of Sections 3.07 and 3.08 of these bylaws apply also to committees of the Board and action by such committees, mutatis mutandis.

 

ARTICLE IV     OFFICERS

 

Section 4.01                             Officers.  The officers of the corporation shall consist of a chairman of the board or a president, or both, a secretary, a chief financial officer, and such additional officers as may be elected or appointed in accordance with Section 4.03 of these bylaws and as may be necessary to enable the corporation to sign instruments and share certificates.  Any number of offices may be held by the same person.

 

Section 4.02                             Elections.  All officers of the corporation, except such officers as may be otherwise appointed in accordance with Section 4.03, shall be chosen by the Board of Directors, and shall serve at the pleasure of the Board of Directors, subject to the rights, if any, of an officer under any contract of employment.

 

Section 4.03                             Other Officers.  The Board of Directors, the chairman of the board, or the president at their or his discretion, may appoint one or more vice presidents, one or more assistant secretaries, a treasurer, one or more assistant treasurers, or such other officers as the business of the corporation may require, each of whom shall hold office for such period, have such authority and perform such duties as the

 

12


 

Board of Directors, the chairman of the board, or the president, as the case may be, may from time to time determine.

 

Section 4.04                             Removal.  Subject to the rights, if any, of an officer under any contract of employment, any officer may be removed, either with or without cause, by the Board of Directors, or, except in case of an officer chosen by the Board of Directors, by any officer upon whom such power of removal may be conferred by the Board of Directors, without prejudice to the rights, if any, of the corporation under any contract to which the officer is a party.

 

Section 4.05                             Resignation.  Any officer may resign at any time by giving written notice to the Board of Directors or to the president, or to the secretary of the corporation without prejudice to the rights, if any, of the corporation under any contract to which the officer is a party.  Any such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

 

Section 4.06                             Vacancies.  A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in these bylaws for regular appointments to such office.

 

Section 4.07                             Chairman of the Board.  The chairman of the board, if there shall be such an officer, shall, if present, preside at all meetings of the Board of Directors and exercise and perform such other powers and duties as may be from time to time assigned to him by the Board of Directors.  If there is no president, the chairman of the board shall in addition be the chief executive officer of the corporation and shall have the powers and duties prescribed in Section 4.08 below.

 

Section 4.08                             President.  Subject to such supervisory powers, if any, as may be given by the Board of Directors to the chairman of the board, if there be such an officer, the president shall be general manager and chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction and control of the business and affairs of the corporation.  He shall preside at all meetings of the shareholders and, in the absence of the chairman of the board, or if there be none, at all meetings of the Board of Directors.  He shall be ex-officio a member of all the standing committees, including the executive committee, if any, and shall have the general powers and duties of management usually vested in the office of president of a corporation, and shall have such other powers and duties as may be prescribed by the Board of Directors or these bylaws.

 

13


 

Section 4.09                             Vice President.  In the absence of the president or in the event of the president’s inability or refusal to act, the vice president, or in the event there be more than one vice president, the vice president designated by the Board of Directors, or if no such designation is made, in order of their election, shall perform the duties of president and when so acting, shall have all the powers of and be subject to all the restrictions upon the president.  Any vice president shall perform such other duties as from time to time may be assigned to such vice president by the president or the Board of Directors.

 

Section 4.10                             Secretary.  The secretary shall keep or cause to be kept the minutes of proceedings and record of shareholders, as provided for and in accordance with Section 5.01(a) of these bylaws.

 

The secretary shall give, or cause to be given, notice of all meetings of the shareholders and of the Board of Directors required by these bylaws or by law to be given, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

Section 4.11                             Chief Financial Officer.  The chief financial officer shall have general supervision, direction and control of the financial affairs of the corporation and shall have such other powers and duties as may be prescribed by the Board of Directors or these bylaws.  In the absence of a named treasurer, the chief financial officer shall also have the powers and duties of the treasurer as hereinafter set forth and shall be authorized and empowered to sign as treasurer in any case where such officer’s signature is required.

 

Section 4.12                             Treasurer.  The treasurer shall keep or cause to be kept the books and records of account as provided for and in accordance with Section 5.01(a) of these bylaws.  The books of account shall at all reasonable times be open to inspection by any director.

 

The treasurer shall deposit all moneys and other valuables in the name and to the credit of the corporation with such depositaries as may be designated by the Board of Directors.  He shall disburse the funds of the corporation as may be ordered by the Board of Directors, shall render to the president and directors, whenever they request it, an account of all of his transactions as treasurer and of the financial condition of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors or these bylaws.  In the absence of a named chief financial officer, the treasurer shall be deemed to be the chief financial officer and shall have the powers and duties of such office as hereinabove set forth.

 

14


 

ARTICLE V     MISCELLANEOUS

 

Section 5.01                             Records and Reports.

 

(a)                                 Books of Account and Proceedings.  The corporation shall keep adequate and correct books and records of account and shall keep minutes of the proceedings of its shareholders, Board and committees of the board and shall keep at its principal executive office, or at the office of its transfer agent or registrar, a record of its shareholders, giving the names and addresses of all shareholders and the number and class of shares held by each.  Such minutes shall be kept in written form.  Such other books and records shall be kept either in written form or in any other form capable of being converted into written form.

 

(b)                                 Annual Report.  An annual report to shareholders referred to in Section 1501 of the California General Corporation Law is expressly dispensed with, but nothing herein shall be interpreted as prohibiting the Board of Directors from issuing annual or other periodic reports to the shareholders of the corporation as they consider appropriate.

 

(c)                                  Shareholders’ Requests for Financial Reports.  If no annual report for the last fiscal year has been sent to shareholders, the corporation shall, upon the written request of any shareholder made more than 120 days after the close of that fiscal year, deliver or mail to the person making the request within 30 days thereafter the financial statements for that year required by Section 1501(a) of the California General Corporation Law.  Any shareholder or shareholders holding at least 5 percent of the outstanding shares of any class of this corporation may make a written request to the corporation for an income statement of the corporation for the three-month, six-month or nine-month period of the current fiscal year ended more than 30 days prior to the date of the request and a balance sheet of the corporation as of the end of such period, and the corporation shall deliver or mail the statements to the person making the request within 30 days thereafter.  A copy of the statements shall be kept on file in the principal office of the corporation for 12 months and they shall be exhibited at all reasonable times to any shareholder demanding an examination of them or a copy shall be mailed to such shareholder upon demand.

 

Section 5.02                             Rights of Inspection.

 

(a)                                 By Shareholders.

 

(1)                                 Record of Shareholders.  Any shareholder or shareholders holding at least 5 percent in the aggregate of the outstanding voting shares of the corporation or who hold

 

15


 

at least 1% of such voting shares and have filed a Schedule 14B with the United States Securities and Exchange Commission relating to the election of directors of the corporation shall have an absolute right to do either or both of the following:  (i) inspect and copy the record of shareholders’ names and addresses and shareholdings during usual business hours upon five business days’ prior written demand upon the corporation, or (ii) obtain from the transfer agent for the corporation, upon written demand and upon the tender of its usual charges for such a list (the amount of which charges shall be stated to the shareholder by the transfer agent upon request), a list of the shareholders’ names and addresses, who are entitled to vote for the election of directors, and their shareholdings, as of the most recent record date for which it has been compiled or as of a date specified by the shareholder subsequent to the date of demand.  The list shall be made available on or before the later of five business days after demand is received or the date specified therein as the date as of which the list is to be compiled.

 

The record of shareholders shall also be open to inspection and copying by any shareholder or holder of a voting trust certificate at any time during usual business hours upon written demand on the corporation, for a purpose reasonably related to such holder’s interests as a shareholder or holder of a voting trust certificate.

 

(2)                                 Corporate Records.  The accounting books and records and minutes of proceedings of the shareholders and the Board and committees of the board shall be open to inspection upon the written demand on the corporation of any shareholder or holder of a voting trust certificate at any reasonable time during usual business hours, for a purpose reasonably related to such holder’s interests as a shareholder or as the holder of such voting trust certificate.  This right of inspection shall also extend to the records of any subsidiary of the corporation.

 

(3)                                 Bylaws.  The corporation shall keep at its principal executive office in this state, the original or a copy of its bylaws as amended to date, which shall be open to inspection by the shareholders at all reasonable times during office hours.

 

(b)                                 By Directors.  Every director shall have the absolute right at any reasonable time to inspect and copy all books, records and documents of every kind and to inspect the physical properties of the corporation of which such person is a director and also of its subsidiary corporations, domestic or foreign.  Such inspection by a director may be made in person or by agent or attorney and the right of inspection includes the right to copy and make extracts.

 

16


 

Section 5.03                             Checks, Drafts, Etc.  All checks, drafts or other orders for payment of money, notes or other evidences of indebtedness, issued in the name of or payable to the corporation, shall be signed or endorsed by such person or persons and in such manner as, from time to time, shall be determined by resolution of the Board of Directors.

 

Section 5.04                             Representation of Shares of Other Corporations.  The chairman of the board, if any, president or any vice president of this corporation, or any other person authorized to do so by the chairman of the board, president or any vice president, is authorized to vote, represent and exercise on behalf of this corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this corporation.  The authority herein granted to said officers to vote or represent on behalf of this corporation any and all shares held by this corporation in any other corporation or corporations may be exercised either by such officers in person or by any other person authorized so to do by proxy or power of attorney duly executed by said officers.

 

Section 5.05                             Indemnification and Insurance.

 

(a)                                 Right to Indemnification.  Each person who was or is made a party to or is threatened to be made a party to or is involuntarily involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “Proceeding”), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer of the corporation or is or was serving (during the person’s tenure as director or officer) at the request of the corporation, any other corporation, partnership, joint venture, trust or other enterprise in any capacity, whether the basis of the Proceeding is an alleged action in an official capacity as a director or officer or in any other capacity while serving as a director or officer, shall be indemnified and held harmless by the corporation to the fullest extent authorized by California General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that the amendment permits the corporation to provide broader indemnification rights than said law permitted the corporation to provide prior to such amendment), against all expenses, liability and loss (including attorneys’ fees, judgments, fines, or penalties and amounts to be paid in settlement) reasonably incurred or suffered by that person in connection therewith.  The right to indemnification conferred in this Section shall be a contract right and shall include the right to be paid by the corporation the expenses incurred in defending a Proceeding in advance of its final disposition; provided, however, that, if California General Corporation Law requires, the payment of such expenses in advance of the final

 

17


 

disposition of a Proceeding shall be made only upon receipt by the corporation of an undertaking by or on behalf of such director or officer to repay all amounts so advanced if it shall ultimately be determined that the director or officer is not entitled to be indemnified under this Section or otherwise.  No amendment to or repeal of this Section 5.05 shall apply to or have any effect on any right to indemnification provided hereunder with respect to any acts or omissions occurring prior to such amendment or repeal.

 

(b)                                 Right of Claimant to Bring Suit.  If a claim for indemnity under paragraph (a) of this Section is not paid in full by the corporation within ninety (90) days after a written claim has been received by the corporation, the claimant may at any time thereafter bring suit against the corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall also be entitled to be paid the expense of prosecuting such claim including reasonable attorneys’ fees incurred in connection therewith.  It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any Proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the corporation) that the claimant has not met the standards of conduct which make it permissible under California General Corporation Law for the corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the corporation.  Neither the failure of the corporation (including its Board of Directors, independent legal counsel, or its shareholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in California General Corporation Law, nor an actual determination by the corporation (including its Board of Directors, independent legal counsel, or its shareholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

 

(c)                                  Non-Exclusivity of Rights.  The rights conferred in this Section shall not be exclusive of any additional rights which any director, officer, employee or agent may have or hereafter acquire under any statute, provision of the Articles of Incorporation, bylaw, agreement, vote of shareholders or disinterested directors or otherwise, to the extent the additional rights to indemnification are authorized in the Articles of Incorporation of the corporation.

 

(d)                                 Insurance.  In furtherance and not in limitation of the powers conferred by statute:

 

18


 

(1)                                 the corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the corporation would have the power to indemnify that person against such expense, liability or loss under the California General Corporation Law.

 

(2)                                 the corporation may create a trust fund, grant a security interest and/or use other means (including, without limitation, letters of credit, surety bonds and/or other similar arrangements), as well as enter into contracts providing indemnification to the full extent authorized or permitted by law and including as part thereof provisions with respect to any or all of the foregoing to ensure the payment of such amounts as may become necessary to effect indemnification as provided therein, or elsewhere.

 

(e)                                  Indemnification of Employees and Agents of the Corporation.  The corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification, including the right to be paid by the corporation the expenses incurred in defending any Proceeding in advance of its final disposition, to any employee or agent of the corporation to the fullest extent of the provisions of this Section or otherwise with respect to the indemnification and advancement of expenses of directors and officers of the corporation.

 

Section 5.06                             Employee Stock Purchase Plans.  The corporation may adopt and carry out a stock purchase plan or agreement or stock option plan or agreement providing for the issue and sale for such consideration as may be fixed of its unissued shares, or of issued shares acquired or to be acquired, to one or more of the employees or directors of the corporation or of a subsidiary or to a trustee on their behalf and for the payment for such shares in installments or at one time, and may provide for aiding any such persons in paying for such shares by compensation for services rendered, promissory notes or otherwise.

 

A stock purchase plan or agreement or stock option plan or agreement may include, among other features, the fixing of eligibility for participation therein, the class and price of shares to be issued or sold under the plan or agreement, the number of shares which may be subscribed for, the method of payment therefor, the reservation of title until full payment therefor, the effect of the termination of employment, an option or obligation on the part of the corporation to repurchase the shares upon termination of employment, subject to

 

19


 

the provisions of the California General Corporation Law, restrictions upon transfer of the shares and the time limits of and termination of the plan.

 

Section 5.07                             Construction and Definitions.  Unless the context otherwise requires, the general provisions, rules of construction and definitions contained in the California General Corporation Law shall govern the construction of these bylaws.  Without limiting the generality of the foregoing, the masculine gender includes the feminine and neuter, the singular number includes the plural and the plural number includes the singular, and the term “person” includes a corporation as well as a natural person.

 

ARTICLE VI     AMENDMENTS

 

Section 6.01                             Power of Shareholders.  New bylaws may be adopted or these bylaws may be amended or repealed by the vote of shareholders entitled to exercise a majority of the voting power of the corporation or by the written assent of such shareholders, except as otherwise provided by law or by the Articles of Incorporation.

 

Section 6.02                             Power of Directors.  Subject to the right of shareholders as provided in Section 6.01 to adopt, amend or repeal bylaws, any bylaw may be adopted, amended or repealed by the Board of Directors other than a bylaw or amendment thereof changing the authorized number of directors, if such number is fixed, or the maximum-minimum limits thereof, if an indefinite number.

 

20


 

The undersigned, constituting the Board of Directors of Core-Mark Interrelated Companies, Inc., hereby adopt the foregoing bylaws as the bylaws of said corporation.

 

Dated as of the 10th day of October, 1989.

 

 

/s/ L. J. Clark

 

L. J. Clark, Director

 

 

 

 

 

/s/ P. S. Jones

 

P. S. Jones, Director

 

 

 

 

 

/s/ J. D. Sommerville

 

J. D. Sommerville, Director

 

 

 

 

 

/s/ F. B. Udvare

 

F. B. Udvare, Director

 

THIS IS TO CERTIFY:

 

That I am the duly elected, qualified and acting Assistant Secretary of Core-Mark Interrelated Companies, Inc. and that the foregoing bylaws were adopted as the bylaws of said corporation as of the 10th day of October, 1989, by the Board of Directors of said corporation.

 

Dated as of the 10th day of October, 1989.

 

 

/s/ James D. Sommerville

 

James D. Sommerville,

 

Assistant Secretary

 

21




Exhibit 4.14

 

ARTICLES OF RESTATEMENT
OF
ARTICLES OF INCORPORATION
OF
CORE-MARK DISTRIBUTORS, INC.

 

1.                                      The name of the corporation is Core-Mark Distributors, Inc. (the “Corporation”).

 

2.                                      The Corporation’s Articles of Incorporation are amended and restated in their entirety.  The Amended and Restated Articles of Incorporation are attached hereto as Exhibit A.

 

3.                                      The cancellation of all authorized and issued shares of Class A Voting Common Stock and Class B Non-Voting Common Stock, and the authorization and issuance of a single class of Common Stock, have been authorized by a1resoluti~n of the Corporation’s board of directors and by written consent of the Corporation’s sole shareholder.

 

4.                                      The Amended and Restated Article of Incorporation are hereby adopted on this 21st day of December, 2016.

 

5.                                      The Amended and Restated Articles of Incorporation contain an amendment requiring shareholder approval, which amendment was duly approved by the sole shareholder of the Corporation on December 21, 2016 in accordance with the provisions of Section 14-2-1003 of the Georgia Business Corporation Code (the “Code”).

 

6.                                      The Amended and Restated Articles of Incorporation contain an amendment entitling the holders of each class of shares of the Corporation to vote on the amendment as a separate voting group. which amendment was duly approved by the sole shareholder of the Corporation on December 21, 2016 in accordance with the provisions of Section 14-2-1 004 of the Code.

 

[SIGNATURE PAGE FOLLOWS]

 


 

IN WITNESS WHEREOF, the Corporation has caused these Articles of Restatement of Articles of Incorporation to be executed and attested by its duly authorized officers this 21st day of December, 2016.

 

 

CORE-MARK DISTRIBUTORS, INC.

 

 

 

 

 

 

 

By:

/s/ Thomas B. Perkins

 

 

Thomas B. Perkins

 

 

President

 

 

 

 

 

 

 

By:

/s/ Theodore Castro

 

 

Theodore Castro

 

 

Secretary

 

 

 

 

[ARTICLES OF RESTATEMENT OF ARTICLES OF INCORPORATION OF CORE-MARK DISTRIBUTORS, INC.]

 


 

Exhibit A

 

AMENDED AND RESTATED ARTICLES OFINCORPORATION
OF
CORE-MARK DISTRIBUTORS, INC.

 

ARTICLE I

 

The name of the Corporation is Core-Mark Distributors, Inc. (the “Corporation”).

 

ARTICLE II

 

The purpose for which the Corporation is formed is for the transaction of any and all lawful business for which a business corporation may engage in ·under the Georgia Business Corporation Code (the ‘‘Code”).

 

ARTICLE III

 

The total number of shares the Corporation is authorized to issue is 1,000 shares of common stock (the “Common Stock”).  The par value of each share of Common Stock is $0.01.

 

No preferences, qualifications, limitations, restrictions, or special rights, other than those provided by law, shall exist in respect of any of the shares of Common Stock.

 

ARTICLE IV

 

The address and col1nty of the registered office is:

NRAI

4820 N. Church LN SE

Smyrna, GA 30080-7210

 

The name and address of the registered agent is:

NRAI

4820 N. Church LN SE

Smyrna, GA 30080-7210

 

ARTICLEV

 

No director of the Corporation shall be personally liable to the Corporation or its shareholders for monetary damages for breach of the duty of care or any other duty as a director, except that such liability shall not be eliminated for (i) any appropriation, in violation of the director’s duties, of any business opportunity of the Corporation; (ii) acts or omissions that involve intentional misconduct or a knowing violation of law; (iii) liability under Section 14-2-832 (or any successor provision or redesignation thereof) of the Code; and (iv) any transaction from which the director derived an improper personal benefit.

 


 

If at any time the Code shall have been amended to authorize the further elimination or limitation of the liability of a director, then the liability of each director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Code, as so amended, without further action by the shareholders, unless the provisions of the Code, as amended, require further action by the shareholders.

 

Any repeal or modification of the foregoing provisions of this Article V shall be prospective only, and shall not adversely affect the elimination or limitation of liability or alleged liability pursuant hereto of any director of the Corporation for or with respect to any alleged act or omission of the director occurring prior to such a repeal or modification.

 

ARTICLE VI

 

Any action required or permitted by the Code to be taken at a shareholders’ meeting may be taken by written consent without a meeting. The written consent shall be signed by the holder or holders of shares having voting power to cast not less than the minimum number (or numbers, in the case of voting by groups) of votes that would be necessary to authorize or take the action at a meeting at which all shareholders entitled to vote were present and voted.

 

The action must be evidenced by one or more written consents bearing the date of signature and describing the action taken, signed by shareholders entitled to take action without a meeting and delivered to the Corporation for inclusion in the minutes or filing with the corporate records. Before any written consent will be valid, the consent shareholder will have either (a) been furnished with the same material that would have been required to be sent to shareholders in a notice of a meeting at which the proposed action would have been submitted to shareholders for action (including notice of any applicable dissenters’ rights) or (b) included in the written consent an express waiver of the right to receive the material otherwise required to be furnished.

 

Action by written consent shall be effective to take the corporate action referred to therein only if all consents necessary to obtain the required approval are received by the Corporation within 60 days after the date that the earliest dated consent is delivered to the Corporation. A written consent can be revoked by a writing to that effect received by the Corporation prior to the receipt by the Corporation of unrevoked written consents sufficient in number to take corporate action.

 

If action is taken by less than all of the shareholders entitled to vote on the action, all voting shareholders on the record date who did not participate in taking the action shall be given written notice of the action, together with the required materials described above, not more than ten days after the taking of action without a meeting.

 

[SIGNATURE PAGE FOLLOWS]

 

2


 

IN WITNESS WHEREOF, the Corporation has caused these Amended and Restated Articles of Incorporation to be executed and attested by its duly authorized officers this 21st day of December, 2016.

 

 

CORE-MARK DISTRIBUTORS, INC.

 

 

 

 

 

By:

/s/ Thomas B. Perkins

 

 

Thomas B. Perkins

 

 

President

 

 

 

 

 

 

 

Attest:

/s/ Theodore Castro

 

 

Theodore Castro

 

 

Secretary

 

[AMENDED AND RESTATED ARTICLES OF INCORPORATION OF CORE-MARK DISTRIBUTORS, INC.]

 




Exhibit 4.15

 

BYLAWS

 

OF

 

HEAD DISTRIBUTING COMPANY

 

(Adopted November 21, 1994)

 


 

BYLAWS

 

OF

 

HEAD DISTRIBUTING COMPANY

 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

ARTICLE ONE                                                      OFFICE

1

1.1

Registered Office and Agent

1

1.2

Principal Office

1

1.3

Other Offices

1

 

 

 

ARTICLE TWO                                                  SHAREHOLDERS’ MEETINGS

1

2.1

Place of Meetings

1

2.2

Annual Meetings

1

2.3

Special Meetings

1

2.4

Notice of Meetings

2

2.5

Waiver of Notice

2

2.6

Voting Group; Quorum; Vote Required to Act

2

2.7

Voting of Shares

3

2.8

Proxies

3

2.9

Presiding Officer

3

2.10

Adjournments

3

2.11

Conduct of the Meeting

4

2.12

Action of Shareholders Without a Meeting

4

 

 

 

ARTICLE THREE                                    BOARD OF DIRECTORS

4

3.1

General Powers

4

3.2

Number, Election and Term of Office

5

3.3

Removal of Directors

5

3.4

Vacancies

5

3.5

Compensation

5

3.6

Committees of the Board of Directors

6

3.7

Qualification of Directors

6

 

 

 

ARTICLE FOUR                                              MEETINGS OF THE BOARD OF DIRECTORS

6

4.1

Regular Meetings

6

4.2

Special Meetings

6

4.3

Place of Meetings

6

4.4

Notice of Meetings

6

4.5

Quorum

6

4.6

Vote Required for Action

6

4.7

Participation by Conference Telephone

7

4.8

Action by Directors Without a Meeting

7

 

i


 

4.9

Adjournments

7

4.10

Waiver of Notice

7

 

 

 

ARTICLE FIVE                                                   OFFICERS

8

5.1

Offices

8

5.2

Term

8

5.3

Compensation

8

5.4

Removal

8

5.5

Chairman of the Board

8

5.6

President

8

5.7

Vice Presidents

9

5.8

Secretary

9

5.9

Treasurer

9

 

 

 

ARTICLE SIX                                                            DISTRIBUTIONS AND DIVIDENDS

10

 

 

ARTICLE SEVEN                                       SHARES

10

7.1

Share Certificates

10

7.2

Rights of Corporation with Respect to Registered Owners

10

7.3

Transfers of Shares

10

7.4

Duty of Corporation to Register Transfer

11

7.5

Lost, Stolen, or Destroyed Certificates

11

7.6

Fixing of Record Date

11

7.7

Record Date if None Fixed

11

 

 

 

ARTICLE EIGHT                                       INDEMNIFICATION

12

8.1

Indemnification of Directors

12

8.2

Indemnification of Others

12

8.3

Other Organizations

12

8.4

Determination

13

8.5

Advances

13

8.6

Non-Exclusivity

13

8.7

Insurance

14

8.8

Notice

14

8.9

Security

14

8.10

Amendment

14

8.11

Agreements

15

8.12

Continuing Benefits

15

8.13

Successors

15

8.14

Severability

15

 

 

 

ARTICLE NINE                                                  MISCELLANEOUS

15

9.1

Inspection of Books and Records

15

9.2

Fiscal Year

16

9.3

Corporate Seal

16

 

ii


 

9.4

Annual Statements

16

9.5

Notice

16

 

 

 

ARTICLE TEN                                                       AMENDMENTS

17

 

iii


 

BYLAWS

 

OF

 

HEAD DISTRIBUTING COMPANY

 

ARTICLE ONE

 

Office

 

1.1                               Registered Office and Agent.  The Corporation shall maintain a registered office and shall have a registered agent whose business office is the same as the registered office.

 

1.2                               Principal Office.  The principal office of the Corporation shall be at the place designated in the Corporation’s annual registration with the Georgia Secretary of State.

 

1.3                               Other Offices.  In addition to its registered office and principal office, the Corporation may have offices at other locations either in or outside the State of Georgia.

 

ARTICLE TWO

 

Shareholders’ Meetings

 

2.1                               Place of Meetings.  Meetings of the Corporation’s shareholders may be held at any location inside or outside the State of Georgia designated by the Board of Directors or any other person or persons who properly call the meeting, or if the Board of Directors or such other person or persons do not specify a location, at the Corporation’s principal office.

 

2.2                               Annual Meetings.  The Corporation shall hold an annual meeting of shareholders, at a time determined by the Board of Directors, to elect directors and to transact any business that properly may come before the meeting.  The annual meeting may be combined with any other meeting of shareholders, whether annual or special.

 

2.3                               Special Meetings.  Special meetings of shareholders of one or more classes or series of the Corporation’s shares may be called at any time by the Board of Directors, the Chairman of the Board, or the President, and shall be called by the Corporation upon the written request (in compliance with applicable requirements of the Georgia Business Corporation Code (the “Code”)) of the holders of shares representing fifty percent (50%) or more of the votes entitled to be cast on each issue proposed to be considered at the special meeting.  The business that may be transacted at any special meeting of shareholders shall be limited to that proposed in the notice of the special meeting given in accordance with Section 2.4 (including related or incidental matters that may be necessary or appropriate to effectuate the proposed business).

 

1


 

2.4                               Notice of Meetings.  In accordance with Section 9.5 and subject to waiver by a shareholder pursuant to Section 2.5, the Corporation shall give written notice of the date, time, and place of each annual and special shareholders’ meeting no fewer than 10 days nor more than 60 days before the meeting date to each shareholder of record entitled to vote at the meeting.  The notice of an annual meeting need not state the purpose of the meeting unless these Bylaws require otherwise.  The notice of a special meeting shall state the purpose for which the meeting is called.  If an annual or special shareholders’ meeting is adjourned to a different date, time, or location, the Corporation shall give shareholders notice of the new date, time, or location of the adjourned meeting, unless a quorum of shareholders was present at the meeting and information regarding the adjournment was announced before the meeting was adjourned; provided, however, that if a new record date is or must be fixed in accordance with Section 7.6, the Corporation must give notice of the adjourned meeting to all shareholders of record as of the new record date who are entitled to vote at the adjourned meeting.

 

2.5                               Waiver of Notice.  A shareholder may waive any notice required by the Code, the Articles of Incorporation, or these Bylaws, before or after the date and time of the matter to which the notice relates, by delivering to the Corporation a written waiver of notice signed by the shareholder entitled to the notice.  In addition, a shareholder’s attendance at a meeting shall be (a) a waiver of objection to lack of notice or defective notice of the meeting unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting, and (b) a waiver of objection to consideration of a particular matter at the meeting that is not within the purpose stated in the meeting notice, unless the shareholder objects to considering the matter when it is presented.  Except as otherwise required by the Code, neither the purpose of nor the business transacted at the meeting need be specified in any waiver.

 

2.6                               Voting Group; Quorum; Vote Required to Act.  (a) Unless otherwise required by the Code or the Articles of Incorporation, all classes or series of the Corporation’s shares entitled to vote generally on a matter shall for that purpose be considered a single voting group (a “Voting Group”).  If either the Articles of Incorporation or the Code requires separate voting by two or more Voting Groups on a matter, action on that matter is taken only when voted upon by each such Voting Group separately.  At all meetings of shareholders, any Voting Group entitled to vote on a matter may take action on the matter only if a quorum of that Voting Group exists at the meeting, and if a quorum exists, the Voting Group may take action on the matter notwithstanding the absence of a quorum of any other Voting Group that may be entitled to vote separately on the matter.  Unless the Articles of Incorporation, these Bylaws, or the Code provide otherwise, the presence (in person or by proxy) of shares representing a majority of votes entitled to be cast on a matter by a Voting

 

2


 

Group shall constitute a quorum of that Voting Group with regard to that matter.  Once a share is present at any meeting other than solely to object to holding the meeting or transacting business at the meeting, the share shall be deemed present for quorum purposes for the remainder of the meeting and for any adjournments of that meeting, unless a new record date for the adjourned meeting is or must be set pursuant to Section 7.6 of these Bylaws.

 

(b)                                 Except as provided in Section 3.4, if a quorum exists, action on a matter by a Voting Group is approved by that Voting Group if the votes cast within the Voting Group favoring the action exceed the votes cast opposing the action, unless the Articles of Incorporation, a provision of these Bylaws that has been adopted pursuant to Section 14-2-1021 of the Code (or any successor provision), or the Code requires a greater number of affirmative votes.

 

2.7                               Voting of Shares.  Unless otherwise required by the Code or the Articles of Incorporation, each outstanding share of any class or series having voting rights shall be entitled to one vote on each matter that is submitted to a vote of shareholders.

 

2.8                               Proxies.  A shareholder entitled to vote on a matter may vote in person or by proxy pursuant to an appointment executed in writing by the shareholder or by his or her attorney-in-fact.  An appointment of a proxy shall be valid for 11 months from the date of its execution, unless a longer or shorter period is expressly stated in the proxy.

 

2.9                               Presiding Officer.  Except as otherwise provided in this Section 2.9, the Chairman of the Board, and in his or her absence or disability the President, shall preside at every shareholders’ meeting (and any adjournment thereof) as its chairman, if either of them is present and willing to serve.  If neither the Chairman of the Board nor the President is present and willing to serve as chairman of the meeting, and if the Chairman of the Board has not designated another person who is present and willing to serve, then a majority of the Corporation’s directors present at the meeting shall be entitled to designate a person to serve as chairman.  If no director of the Corporation is present at the meeting or if a majority of the directors who are present cannot be established, then a chairman of the meeting shall be selected by a majority vote of (a) the shares present at the meeting that would be entitled to vote in an election of directors, or (b) if no such shares are present at the meeting, then the shares present at the meeting comprising the Voting Group with the largest number of shares present at the meeting and entitled to vote on a matter properly proposed to be considered at the meeting.  The chairman of the meeting may designate other persons to assist with the meeting.

 

2.10                        Adjournments.  At any meeting of shareholders (including an adjourned meeting), a majority of shares of any Voting Group present and entitled to vote at the meeting (whether or not those

 

3


 

shares constitute a quorum) may adjourn the meeting, but only with respect to that Voting Group, to reconvene at a specific time and place.  If more than one Voting Group is present and entitled to vote on a matter at the meeting, then the meeting may be continued with respect to any such Voting Group that does not vote to adjourn as provided above, and such Voting Group may proceed to vote on any matter to which it is otherwise entitled to do so; provided, however, that if (a) more than one Voting Group is required to take action on a matter at the meeting and (b) any one of those Voting Groups votes to adjourn the meeting (in accordance with the preceding sentence), then the action shall not be deemed to have been taken until the requisite vote of any adjourned Voting Group is obtained at its reconvened meeting.  The only business that may be transacted at any reconvened meeting is business that could have been transacted at the meeting that was adjourned, unless further notice of the adjourned meeting has been given in compliance with the requirements for a special meeting that specifies the additional purpose or purposes for which the meeting is called.  Nothing contained in this Section 2.10 shall be deemed or otherwise construed to limit any lawful authority of the chairman of a meeting to adjourn the meeting.

 

2.11                        Conduct of the Meeting.  At any meeting of shareholders, the chairman of the meeting shall be entitled to establish the rules of order governing the conduct of business at the meeting.

 

2.12                        Action of Shareholders Without a Meeting.  Action required or permitted to be taken at a meeting of shareholders may be taken without a meeting if the action is taken by all shareholders entitled to vote on the action or, if permitted by the Articles of Incorporation, by persons who would be entitled to vote at a meeting shares having voting power to cast the requisite number of votes (or numbers, in the case of voting by groups) that would be necessary to authorize or take the action at a meeting at which all shareholders entitled to vote were present and voted.  The action must be evidenced by one or more written consents describing the action taken, signed by shareholders entitled to take action without a meeting, and delivered to the Corporation for inclusion in the minutes or filing with the corporate records.  Where required by Section 14-2-704 or other applicable provision of the Code, the Corporation shall provide shareholders with written notice of actions taken without a meeting.

 

ARTICLE THREE

 

Board of Directors

 

3.1                               General Powers.  All corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be managed by, the Board of Directors, subject to any limitation set forth in the Articles of Incorporation, in

 

4


 

bylaws approved by the shareholders, or in an agreement among all the shareholders (a “Shareholders’ Agreement”).

 

3.2                               Number, Election and Term of Office.  The number of directors of the Corporation shall be fixed by resolution of the Board of Directors or of the shareholders from time to time and, until otherwise determined, shall be five (5); provided, however, that no decrease in the number of directors shall have the effect of shortening the term of an incumbent director.  Except as provided elsewhere in this Section 3.2 and in Section 3.4, the directors shall be elected at each annual meeting of shareholders, or at a special meeting of shareholders called for purposes that include the election of directors, by a plurality of the votes cast by the shares entitled to vote and present at the meeting.  Except in case of death, resignation, disqualification, or removal, the term of each director shall expire at the next succeeding annual meeting of shareholders.  Despite the expiration of a director’s term, he or she shall continue to serve until his or her successor, if there is to be any, has been elected and has qualified.

 

3.3                               Removal of Directors.  The entire Board of Directors or any individual director may be removed, with or without cause, by the shareholders, provided that directors elected by a particular Voting Group may be removed only by the shareholders in that Voting Group.  Removal action may be taken only at a shareholders’ meeting for which notice of the removal action has been given, except as otherwise provided in a Shareholders’ Agreement.  A removed director’s successor, if any, may be elected at the same meeting to serve the unexpired term.

 

3.4                               Vacancies.  A vacancy occurring in the Board of Directors may be filled for the unexpired term, unless the shareholders have elected a successor, by the affirmative vote of a majority of the remaining directors, whether or not the remaining directors constitute a quorum; provided, however, that if the vacant office was held by a director elected by a particular Voting Group, only the holders of shares of that Voting Group or the remaining directors elected by that Voting Group shall be entitled to fill the vacancy; provided further, however, that if the vacant office was held by a director elected by a particular Voting Group and there is no remaining director elected by that Voting Group, the other remaining directors or director (elected by another Voting Group or Groups) may fill the vacancy during an interim period before the shareholders of the vacated director’s Voting Group act to fill the vacancy.  A vacancy or vacancies in the Board of Directors may result from the death, resignation, disqualification, or removal of any director, or from an increase in the number of directors.

 

3.5                               Compensation.  Directors may receive such compensation for their services as directors as may be fixed by the Board of Directors from time to time.  A director may also serve the Corporation in one or more capacities other than that of director

 

5


 

and receive compensation for services rendered in those other capacities.

 

3.6                               Committees of the Board of Directors.  The Board of Directors may designate from among its members an executive committee or one or more other standing or ad hoc committees, each consisting of one or more directors, who serve at the pleasure of the Board of Directors.  Subject to the limitations imposed by the Code, each committee shall have the authority set forth in the resolution establishing the committee or in any other resolution of the Board of Directors specifying, enlarging, or limiting the authority of the committee.

 

3.7                               Qualification of Directors.  No person elected to serve as a director of the Corporation shall assume office and begin serving unless and until duly qualified to serve, as determined by reference to the Code, the Articles of Incorporation, and any further eligibility requirements established in these Bylaws.

 

ARTICLE FOUR

 

Meetings of the Board of Directors

 

4.1                               Regular Meetings.  A regular meeting of the Board of Directors shall be held in conjunction with each annual meeting of shareholders.  In addition, the Board of Directors may, by prior resolution, hold regular meetings at other times.

 

4.2                               Special Meetings.  Special meetings of the Board of Directors may be called by or at the request of the Chairman of the Board, the President, or any director in office at that time.

 

4.3                               Place of Meetings.  Directors may hold their meetings at any place in or outside the State of Georgia that the Board of Directors may establish from time to time.

 

4.4                               Notice of Meetings.  Directors need not be provided with notice of any regular meeting of the Board of Directors.  Unless waived in accordance with Section 4.10, the Corporation shall give at least two days’ notice to each director of the date, time, and place of each special meeting.  Notice of a meeting shall be deemed to have been given to any director in attendance at any prior meeting at which the date, time, and place of the subsequent meeting was announced.

 

4.5                               Quorum.  At meetings of the Board of Directors, a majority of the directors then in office shall constitute a quorum for the transaction of business.

 

4.6                               Vote Required for Action.  If a quorum is present when a vote is taken, the vote of a majority of the directors present at the time of the vote will be the act of the Board of Directors,

 

6


 

unless the vote of a greater number is required by the Code, the Articles of Incorporation, these Bylaws, or a Shareholders’ Agreement.  A director who is present at a meeting of the Board of Directors when corporate action is taken is deemed to have assented to the action taken unless (a) he or she objects at the beginning of the meeting (or promptly upon his or her arrival) to holding the meeting or transacting business at it; (b) his or her dissent or abstention from the action taken is entered in the minutes of the meeting; or (c) he or she delivers written notice of dissent or abstention to the presiding officer of the meeting before its adjournment or to the Corporation immediately after adjournment of the meeting.  The right of dissent or abstention is not available to a director who votes in favor of the action taken.

 

4.7                               Participation by Conference Telephone.  Members of the Board of Directors may participate in a meeting of the Board by means of conference telephone or similar communications equipment through which all persons participating may hear and speak to each other.  Participation in a meeting pursuant to this Section 4.7 shall constitute presence in person at the meeting.

 

4.8                               Action by Directors Without a Meeting.                   Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if a written consent, describing the action taken, is signed by each director and delivered to the Corporation.  The consent may be executed in counterparts, and shall have the same force and effect as a unanimous vote of the Board of Directors at a duly convened meeting.

 

4.9                               Adjournments.  A meeting of the Board of Directors, whether or not a quorum is present, may be adjourned by a majority of the directors present to reconvene at a specific time and place.  It shall not be necessary to give notice to the directors of the reconvened meeting or of the business to be transacted, other than by announcement at the meeting that was adjourned, unless a quorum was not present at the meeting that was adjourned, in which case notice shall be given to directors in the same manner as for a special meeting.  At any such reconvened meeting at which a quorum is present, any business may be transacted that could have been transacted at the meeting that was adjourned.

 

4.10                        Waiver of Notice.  A director may waive any notice required by the Code, the Articles of Incorporation, or these Bylaws before or after the date and time of the matter to which the notice relates, by a written waiver signed by the director and delivered to the Corporation.  Attendance by a director at a meeting shall constitute waiver of notice of the meeting, except where a director at the beginning of the meeting (or promptly upon his or her arrival) objects to holding the meeting or to transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting.

 

7


 

ARTICLE FIVE

 

Officers

 

5.1                               Offices.  The officers of the Corporation shall consist of a President, a Secretary, and a Treasurer, each of whom shall be elected or appointed by the Board of Directors.  The Board of Directors may also elect a Chairman of the Board from among its members.  The Board of Directors from time to time may create and establish the duties of other offices and may elect or appoint, or authorize specific senior officers to appoint, the persons who shall hold such other offices, including one or more Vice Presidents (including Executive Vice Presidents, Senior Vice Presidents, Assistant Vice Presidents, and the like), one or more Assistant Secretaries, and one or more Assistant Treasurers.  Whether or not so provided by the Board of Directors, the Chairman of the Board may appoint one or more Assistant Secretaries and one or more Assistant Treasurers.  Any two or more offices may be held by the same person.

 

5.2                               Term.  Each officer shall serve at the pleasure of the Board of Directors (or, if appointed by a senior officer pursuant to this Article Five, at the pleasure of the Board of Directors or any senior officer authorized to have appointed the officer) until his or her death, resignation, or removal, or until his or her replacement is elected or appointed in accordance with this Article Five.

 

5.3                               Compensation.  The compensation of all officers of the Corporation shall be fixed by the Board of Directors or by a committee or officer appointed by the Board of Directors.  Officers may serve without compensation.

 

5.4                               Removal.  All officers (regardless of how elected or appointed) may be removed, with or without cause, by the Board of Directors, and any officer appointed by another officer may also be removed, with or without cause, by any senior officer authorized to have appointed the officer to be removed.  Removal will be without prejudice to the contract rights, if any, of the person removed, but shall be effective notwithstanding any damage claim that may result from infringement of such contract rights.

 

5.5                               Chairman of the Board.  The Chairman of the Board (if there be one) shall preside at and serve as chairman of meetings of the shareholders and of the Board of Directors (unless another person is selected under Section 2.9 to act as chairman).  The Chairman of the Board shall perform other duties and have other authority as may from time to time be delegated by the Board of Directors.

 

5.6                               President.  Unless otherwise provided in these Bylaws or by resolution of the Board of Directors, the President shall be the chief executive officer of the Corporation, shall be charged with

 

8


 

the general and active management of the business of the Corporation, shall see that all orders and resolutions of the Board of Directors are carried into effect, shall have the authority to select and appoint employees and agents of the Corporation, and shall, in the absence or disability of the Chairman of the Board, perform the duties and exercise the powers of the Chairman of the Board.  The President shall perform any other duties and have any other authority as may be delegated from time to time by the Board of Directors, and shall be subject to the limitations fixed from time to time by the Board of Directors.

 

5.7                               Vice Presidents.  The Vice President (if there be one) shall, in the absence or disability of the President, or at the direction of the President, perform the duties and exercise the powers of the President, whether the duties and powers are specified in these Bylaws or otherwise.  If the Corporation has more than one Vice President, the one designated by the Board of Directors or the President (in that order of precedence) shall act in the event of the absence or disability of the President.  Vice Presidents shall perform any other duties and have any other authority as from time to time may be delegated by the Board of Directors or the President.

 

5.8                               Secretary.  The Secretary shall be responsible for preparing minutes of the meetings of shareholders, directors, and committees of directors and for authenticating records of the Corporation.  The Secretary or any Assistant Secretary shall have authority to give all notices required by law or these Bylaws.  The Secretary shall be responsible for the custody of the corporate books, records, contracts, and other documents.  The Secretary or any Assistant Secretary may affix the corporate seal to any lawfully executed documents requiring it, may attest to the signature of any officer of the Corporation, and shall sign any instrument that requires the Secretary’s signature.  The Secretary or any Assistant Secretary shall perform any other duties and have any other authority as from time to time may be delegated by the Board of Directors or the President.

 

5.9                               Treasurer.  Unless otherwise provided by the Board of Directors, the Treasurer shall be responsible for the custody of all funds and securities belonging to the Corporation and for the receipt, deposit, or disbursement of these funds and securities under the direction of the Board of Directors.  The Treasurer shall cause full and true accounts of all receipts and disbursements to be maintained and shall make reports of these receipts and disbursements to the Board of Directors and President upon request.  The Treasurer or Assistant Treasurer shall perform any other duties and have any other authority as from time to time may be delegated by the Board of Directors or the President.

 

9


 

ARTICLE SIX

 

Distributions and Dividends

 

Unless the Articles of Incorporation provide otherwise, the Board of Directors, from time to time in its discretion, may authorize or declare distributions or share dividends in accordance with the Code.

 

ARTICLE SEVEN

 

Shares

 

7.1                               Share Certificates.  The interest of each shareholder in the Corporation shall be evidenced by a certificate or certificates representing shares of the Corporation, which shall be in such form as the Board of Directors from time to time may adopt in accordance with the Code.  Share certificates shall be in registered form and shall indicate the date of issue, the name of the Corporation, that the Corporation is organized under the laws of the State of Georgia, the name of the shareholder, and the number and class of shares and designation of the series, if any, represented by the certificate.  Each certificate shall be signed by the President or a Vice President (or in lieu thereof, by the Chairman of the Board, if there be one) and may be signed by the Secretary or an Assistant Secretary; provided, however, that where the certificate is signed (either manually or by facsimile) by a transfer agent, or registered by a registrar, the signatures of those officers may be facsimiles.

 

7.2                               Rights of Corporation with Respect to Registered Owners.  Prior to due presentation for transfer of registration of its shares, the Corporation may treat the registered owner of the shares (or the beneficial owner of the shares to the extent of any rights granted by a nominee certificate on file with the Corporation pursuant to any procedure that may be established by the Corporation in accordance with the Code) as the person exclusively entitled to vote the shares, to receive any dividend or other distribution with respect to the shares, and for all other purposes; and the Corporation shall not be bound to recognize any equitable or other claim to or interest in the shares on the part of any other person, whether or not it has express or other notice of such a claim or interest, except as otherwise provided by law.

 

7.3                               Transfers of Shares.  Transfers of shares shall be made upon the books of the Corporation kept by the Corporation or by the transfer agent designated to transfer the shares, only upon direction of the person named in the certificate or by an attorney lawfully constituted in writing.  Before a new certificate is issued, the old certificate shall be surrendered for cancellation or, in the case of a certificate alleged to have been lost, stolen,

 

10


 

or destroyed, the provisions of Section 7.5 of these Bylaws shall have been complied with.

 

7.4                               Duty of Corporation to Register Transfer.  Notwithstanding any of the provisions of Section 7.3 of these Bylaws, the Corporation is under a duty to register the transfer of its shares only if:  (a) the share certificate is endorsed by the appropriate person or persons; (b) reasonable assurance is given that each required endorsement is genuine and effective; (c) the Corporation has no duty to inquire into adverse claims or has discharged any such duty; (d) any applicable law relating to the collection of taxes has been complied with; (e) the transfer is in fact rightful or is to a bona fide purchaser; and (f) the transfer is in compliance with applicable provisions of any transfer restrictions of which the Corporation shall have notice.

 

7.5                               Lost, Stolen, or Destroyed Certificates.  Any person claiming a share certificate to be lost, stolen, or destroyed shall make an affidavit or affirmation of this claim in such a manner as the Corporation may require and shall, if the Corporation requires, give the Corporation a bond of indemnity in form and amount, and with one or more sureties satisfactory to the Corporation, as the Corporation may require, whereupon an appropriate new certificate may be issued in lieu of the one alleged to have been lost, stolen or destroyed.

 

7.6                               Fixing of Record Date.  For the purpose of determining shareholders (a) entitled to notice of or to vote at any meeting of shareholders or, if necessary, any adjournment thereof, (b) entitled to receive payment of any distribution or dividend, or (c) for any other proper purpose, the Board of Directors may fix in advance a date as the record date.  The record date may not be more than 70 days (and, in the case of a notice to shareholders of a shareholders’ meeting, not less than 10 days) prior to the date on which the particular action, requiring the determination of shareholders, is to be taken.  A separate record date may be established for each Voting, Group entitled to vote separately on a matter at a meeting.  A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting, unless the Board of Directors shall fix a new record date for the reconvened meeting, which it must do if the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting.

 

7.7                               Record Date if None Fixed.  If no record date is fixed as provided in Section 7.6, then the record date for any determination of shareholders that may be proper or required by law shall be, as appropriate, the date on which notice of a shareholders’ meeting is mailed, the date on which the Board of Directors adopts a resolution declaring a dividend or authorizing a distribution, or the date on which any other action is taken that requires a determination of shareholders.

 

11


 

ARTICLE EIGHT

 

Indemnification

 

8.1                               Indemnification of Directors.  The Corporation shall indemnify and hold harmless any director of the Corporation (an “Indemnified Person”) who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, whether formal or informal, including any action or suit by or in the right of the Corporation (for purposes of this Article Eight, collectively, a “Proceeding”) because he or she is or was a director, officer, employee, or agent of the Corporation, against any judgment, settlement, penalty, fine, or reasonable expenses (including, but not limited to, attorneys’ fees and disbursements, court costs, and expert witness fees) incurred with respect to the Proceeding (for purposes of this Article Eight, a “Liability”), if he or she acted in a manner he or she believed in good faith to be in or not opposed to the best interests of the Corporation, and, in the case of any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful.  The Corporation may not indemnify a director:  (1) in connection with a Proceeding in which the director is adjudged liable to the Corporation; or (2) in connection with any other proceeding in which the director is adjudged liable on the basis that he or she improperly received personal benefit. Indemnification in  connection with a Proceeding brought by or in the right of the Corporation is limited to reasonable expenses incurred in connection with the Proceeding.

 

8.2                               Indemnification of Others.  The Board of Directors shall have the power to cause the Corporation to provide to officers, employees, and agents of the Corporation all or any part of the right to indemnification permitted for such persons by appropriate provisions of the Code.  Persons to be indemnified may be identified by position or name, and the right of indemnification may be different for each of the persons identified.  Each officer, employee, or agent of the Corporation so identified shall be an “Indemnified Person” for purposes of the provisions of this Article Eight.

 

8.3                               Other Organizations.  The Corporation shall provide to each director, and the Board of Directors shall have the power to cause the Corporation to provide to any officer, employee, or agent, of the Corporation who is or was serving at the Corporation’s request as a director, officer, partner, trustee, employee, or agent of another corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise all or any part of the right to indemnification and other rights of the type provided under Sections 8.1, 8.2, 8.5, and 8.11 of this Article Eight (subject to the conditions, limitations, and obligations specified in those Sections) permitted for such persons by appropriate provisions of the Code.  Persons to be indemnified

 

12


 

may be identified by position or name, and the right of indemnification may be different for each of the persons identified.  Each person so identified shall be an “Indemnified Person” for purposes of the provisions of this Article Eight.

 

8.4                               Determination.  Notwithstanding any judgment, order, settlement, conviction, or plea in any Proceeding, an Indemnified Person shall be entitled to indemnification as provided in Section 8.1 if a determination that such Indemnified Person is entitled to such indemnification shall be made (a) by the Board of Directors by a majority vote of a quorum consisting of directors who are not at the time parties to the Proceeding; (b) if a quorum cannot be obtained under (a) above, by majority vote of a committee duly designated by the Board of Directors (in which designation directors who are parties may participate), consisting solely of two or more directors who are not at the time parties to the Proceeding; (c) in a written opinion by special legal counsel selected as required by the Code; or (d) by the shareholders; provided, however, that shares owned by or voted under the control of directors who are at the time parties to the Proceeding may not be voted on the determination.

 

8.5                               Advances.  Expenses (including, but not limited to, attorneys’ fees and disbursements, court costs, and expert witness fees) incurred by an Indemnified Person in defending any Proceeding of the kind described in Sections 8.1 or 8.3, as to an Indemnified Person who is a director of the Corporation, or in Sections 8.2 or 8.3, as to other Indemnified Persons, if the Board of Directors has specified that advancement of expenses be made available to any such Indemnified Person, shall be paid by the Corporation in advance of the final disposition of such Proceeding as set forth herein.  The Corporation shall promptly pay the amount of such expenses to the Indemnified Person, but in no event later than 10 days following the Indemnified Person’s delivery to the Corporation of a written request for an advance pursuant to this Section 8.5, together with a reasonable accounting of such expenses; provided, however, that the Indemnified Person shall furnish the Corporation a written affirmation of his or her good faith belief that he or she has met the applicable standard of conduct and a written undertaking and agreement to repay to the Corporation any advances made pursuant to this Section 8.5 if it shall be determined that the Indemnified Person is not entitled to be indemnified by the Corporation for such amounts.  The Corporation may make the  advances contemplated by this Section 8.5 regardless of the Indemnified Person’s financial ability to make repayment.  Any advances and undertakings to repay pursuant to this Section 8.5 may be unsecured and interest-free.

 

8.6                               Non-Exclusivity.  Subject to any applicable limitation imposed by the Code or the Articles of Incorporation, the indemnification and advancement of

 

13


 

expenses provided by or granted pursuant to this Article Eight shall not be exclusive of any other rights to which a person seeking indemnification or advancement of expenses may be entitled under any provision of the Articles of Incorporation, or any Bylaw, resolution, or agreement specifically or in general terms approved or ratified by the affirmative vote of holders of a majority of the shares entitled to be voted thereon.

 

8.7                               Insurance.  The Corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee, or agent of the Corporation, or who, while serving in such a capacity, is also or was also serving at the request of the Corporation as a director, officer, trustee, partner, employee, or agent of any corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against any Liability that may be asserted against or incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him or her against such liability under the provisions of this Article Eight.

 

8.8                               Notice.  If the Corporation indemnifies or advances expenses to a director under any of Sections 14-2-851 through 14-2¬854 of the Code (or any equivalent provision of these Bylaws) in connection with a Proceeding by or in the right of the Corporation, the Corporation shall, to the extent required by Section 14-2-1621 or any other applicable provision of the Code, report the indemnification or advance in writing to the shareholders with or before the notice of the next shareholders’ meeting.

 

8.9                               Security.  The Corporation may designate certain of its assets as collateral, provide self-insurance, establish one or more indemnification trusts, or otherwise secure or facilitate its ability to meet its obligations under this Article Eight, or under any indemnification agreement or plan of indemnification adopted and entered into in accordance with the provisions of this Article Eight, as the Board of Directors deems appropriate.

 

8.10                        Amendment.  Any amendment to this Article Eight that limits or otherwise adversely affects the right of indemnification, advancement of expenses, or other rights of any Indemnified Person hereunder shall, as to such Indemnified Person, apply only to Proceedings based on actions, events, or omissions (collectively, “Post Amendment Events”) occurring after such amendment and after delivery of notice of such amendment to the Indemnified Person so affected.  Any Indemnified Person shall, as to any Proceeding based on actions, events, or omissions occurring prior to the date of receipt of such notice, be entitled to the right of indemnification, advancement of expenses, and other rights under this Article Eight to the same extent as if such provisions had continued as part of the Bylaws of the Corporation without such amendment.  This Section 8.10 cannot be altered, amended, or repealed in a manner effective as to any Indemnified Person (except as to Post Amendment Events) without the prior written consent of such Indemnified Person.

 

14


 

8.11                        Agreements.  The provisions of this Article Eight shall be deemed to constitute an agreement between the Corporation and each Indemnified Person hereunder.  In addition to the rights provided in this Article Eight, the Corporation shall have the power, upon authorization by the Board of Directors, to enter into an agreement or agreements providing to any Indemnified Person indemnification rights substantially similar to those provided in this Article Eight.

 

8.12                        Continuing Benefits.  The rights of indemnification and advancement of expenses permitted or authorized by this Article Eight shall, unless otherwise provided when such rights are granted or conferred, continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such person.

 

8.13                        Successors.  For purposes of this Article Eight, the term “Corporation” shall include any corporation, joint venture, trust, partnership, or unincorporated business association that is the successor to all or substantially all of the business or assets of this Corporation, as a result of merger, consolidation, sale, liquidation, or otherwise, and any such successor shall be liable to the persons indemnified under this Article Eight on the same terms and conditions and to the same extent as this Corporation.

 

8.14                        Severability.  Each of the Sections of this Article Eight, and each of the clauses set forth herein, shall be deemed separate and independent, and should any part of any such Section or clause be declared invalid or unenforceable by any court of competent jurisdiction, such invalidity or unenforceability shall in no way render invalid or unenforceable any other part thereof or any separate Section or clause of this Article Eight that is not declared invalid or unenforceable.

 

ARTICLE NINE

 

Miscellaneous

 

9.1                               Inspection of Books and Records.  The Board of Directors shall have the power to determine which accounts, books, and records of the Corporation shall be available for shareholders to inspect or copy, except for those books and records required by the Code to be made available upon compliance by a shareholder with applicable requirements, and shall have the power to fix reasonable rules and regulations (including confidentiality restrictions and procedures) not in conflict with applicable law for the inspection and copying of accounts, books, and records that by law or by determination of the Board of Directors are made available.  Unless required by the Code or otherwise provided by the Board of Directors, a shareholder of the Corporation holding less than two percent of the total shares of the Corporation then outstanding

 

15


 

shall have no right to inspect the books and records of the Corporation.

 

9.2                               Fiscal Year.  The Board of Directors is authorized to fix the fiscal year of the Corporation and to change the fiscal year from time to time as it deems appropriate.

 

9.3                               Corporate Seal.  The corporate seal will be in such form as the Board of Directors may from time to time determine.  The Board of Directors may authorize the use of one or more facsimile forms of the corporate seal.  The corporate seal need not be used unless its use is required by law, by these Bylaws, or by the Articles of Incorporation.

 

9.4                               Annual Statements.  Not later than four months after the close of each fiscal year, and in any case prior to the next annual meeting of shareholders, the Corporation shall prepare (a) a balance sheet showing in reasonable detail the financial condition of the Corporation as of the close of its fiscal year, and (b) a profit and loss statement showing the results of its operations during its fiscal year.  Upon receipt of written request, the Corporation promptly shall mail to any shareholder of record a copy of the most recent such balance sheet and profit and loss statement, in such form and with such information as the Code may require.

 

9.5                               Notice.  (a) Whenever these Bylaws require notice to be given to any shareholder or to any director, the notice may be given by mail, in person, by courier delivery, by telephone, or by telecopier, telegraph, or similar electronic means.  Whenever notice is given to a shareholder or director by mail, the notice shall be sent by depositing the notice in a post office or letter box in a postage-prepaid, sealed envelope addressed to the shareholder or director at his or her address as it appears on the books of the Corporation.  Any such written notice given by mail shall be effective:  (i) if given to shareholders, at the time the same is deposited in the United States mail; and (ii) in all other cases, at the earliest of (x) when received or when delivered, properly addressed, to the addressee’s last known principal place of business or residence, (y) five days after its deposit in the mail, as evidenced by the postmark, if mailed with first-class postage prepaid and correctly addressed, or (z) on the date shown on the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee.  Whenever notice is given to a shareholder or director by any means other than mail, the notice shall be deemed given when received.

 

(b)                                 In calculating time periods for notice, when a period of time measured in days, weeks, months, years, or other measurement of time is prescribed for the exercise of any privilege or the discharge of any duty, the first day shall not be counted but the last day shall be counted.

 

16


 

ARTICLE TEN

 

Amendments

 

Except as otherwise provided under the Code, the Board of Directors shall have the power to alter, amend, or repeal these Bylaws or adopt new Bylaws.  Any Bylaws adopted by the Board of Directors may be altered, amended, or repealed, and new Bylaws adopted, by the shareholders.  The shareholders may prescribe in adopting any Bylaw or Bylaws that the Bylaw or Bylaws so adopted shall not be altered, amended, or repealed by the Board of Directors.

 

17




Exhibit 4.16

 

AMENDMENT TO
BYLAWS
OF
HEAD DISTRIBUTING COMPANY

 

Dated November 26, 2002

 

Article II, Section 2 of the Bylaws of Head Distributing Company is hereby amended to read as follows:

 

2.2          Annual Meetings.  The Corporation shall hold an annual meeting of shareholders at 10:00 a.m. on the first Tuesday in October of each year or at such other time as shall be determined by the Board of Directors, to elect directors and to transact any business that properly may come before the meeting. If the day fixed for the annual meeting is a legal holiday, such meeting shall be held on the next succeeding business day. The annual meeting may be combined with any other meeting of shareholders, whether annual or special.

 




Exhibit 4.17

 

HEAD DISTRIBUTING COMPANY

 

Amendment to Bylaws dated June 30, 2003

 

The undersigned, being the duly elected, qualified and acting Secretary of Head Distributing Company, a Georgia corporation (the “Corporation”), does hereby certify that the Bylaws of the Corporation were amended by the Board of Directors of the Corporation by Written Consent of Board of Directors of Head Distributing Company, dated June 30, 2003, in accordance with the Bylaws and Articles of Incorporation of the Corporation and the statutes of the State of Georgia, as follows:

 

The Bylaws of the Corporation were amended to modify Section 3.2 of Article III to provide as follows:

 

3.2          Number, Election and Term of Office.  The number of directors of the Corporation shall be fixed by resolution of the Board of Directors or of the shareholders from time to time and, until otherwise determined, shall not be less than one (1) nor more than six (6).  No decrease in the number of directors shall have the effect of shortening the term of an incumbent director.  Except as provided elsewhere in this Section 3.2 and in Section 3.4, the directors shall be elected at each annual meeting of shareholders, or at a special meeting of shareholders called for purposes that include the election of directors, by a plurality of the votes cast by the shares entitled to vote and present at the meeting.  Except in case of death, resignation, disqualification, or removal, the term of each director shall expire at the next succeeding annual meeting of shareholders.  Despite the expiration of a director’s term, he or she shall continue to serve until his or her successor, if there is to be any, has been elected and has qualified.

 

Executed this 30th day of June, 2003.

 

 

 

/s/ Carlos M. Hernandez

 

Carlos M. Hernandez

 

Secretary

 




Exhibit 4.18

 

AMENDMENT NO. 3 TO
BYLAWS
OF
HEAD DISTRIBUTING CO.

 

Dated August 23, 2004

 

Section 3.2 of Article III of the Bylaws of Head Distributing Co. is hereby amended to read as follows:

 

3.2          Number, Election and Term of Office.  The number of directors of the Corporation constituting the entire Board of Directors shall be two, or such other number as may be fixed by resolutions of the Board of Directors or of the shareholders from time to time and, until otherwise determined, shall not be less than one (1) nor more than six (6).  No decrease in the number of directors shall have the effect of shortening the term of an incumbent director.  Except as provided elsewhere in this Section 3.2 and in Section 3.4, the directors shall be elected at each annual meeting of shareholders, or at a special meeting of shareholders called for purposes that include the election of directors, by a plurality of the votes cast by the shares entitled to vote and present at the meeting.  Except in case of death, resignation, disqualification, or removal, the term of each of director shall expire at the next succeeding annual meeting of shareholders.  Despite the expiration of a director’s term, he or she shall continue to serve until his or her successor, if there is to be any, has been elected and has qualified.

 




Exhibit 4.19

 

-, ) J .. • •ii.. i : j511T1111 ..-:) . , . ,; Ji?t-:.1 0 i>tt l\tbtrt for trtain Jltfinition 150,000,000 SHARES PAR VALUE $.01 EACH COMMON STOCK to ((erttfp tf)at tf)e owner of tt o/tlw o;n4 CYn the o/,the$(}/) nbn-te6 the hhmceo{tn;w(J/)C -0 o{L fb(Y) Wttntiiii, the o/the -tf(J/) dt 1Dattb te6 © 1999 CO RPEX BANKNOTE CO ., BAY SHORE N. Y. I¥IY:juUd and by dtdyujuYn o/d6 duty d·

GRAPHIC

 



Exhibit 4.20

 

 

CORE-MARK HOLDING COMPANY, INC.

 


 

INDENTURE

 

Dated as of                 , 20

 


 

WILMINGTON TRUST, NATIONAL ASSOCIATION,

 

as Trustee

 

 


 

TABLE OF CONTENTS

 

 

 

 

Page

 

 

ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE

1

Section 1.1.

Definitions.

1

Section 1.2.

Other Definitions.

4

Section 1.3.

Incorporation by Reference of Trust Indenture Act.

4

Section 1.4.

Rules of Construction.

5

 

 

 

ARTICLE II. THE SECURITIES

5

Section 2.1.

Issuable in Series.

5

Section 2.2.

Establishment of Terms of Series of Securities.

5

Section 2.3.

Execution and Authentication.

8

Section 2.4.

Registrar and Paying Agent.

9

Section 2.5.

Paying Agent to Hold Money in Trust.

10

Section 2.6.

Securityholder Lists.

10

Section 2.7.

Transfer and Exchange.

10

Section 2.8.

Mutilated, Destroyed, Lost and Stolen Securities.

11

Section 2.9.

Outstanding Securities.

11

Section 2.10.

Treasury Securities.

12

Section 2.11.

Temporary Securities.

12

Section 2.12.

Cancellation.

12

Section 2.13.

Defaulted Interest.

12

Section 2.14.

Global Securities.

13

Section 2.15.

CUSIP Numbers.

14

 

 

 

ARTICLE III. REDEMPTION

15

Section 3.1.

Notice to Trustee.

15

Section 3.2.

Selection of Securities to be Redeemed.

15

Section 3.3.

Notice of Redemption.

15

Section 3.4.

Effect of Notice of Redemption.

16

Section 3.5.

Deposit of Redemption Price.

16

Section 3.6.

Securities Redeemed in Part.

16

 

 

 

ARTICLE IV. COVENANTS

17

Section 4.1.

Payment of Principal and Interest.

17

Section 4.2.

SEC Reports.

17

Section 4.3.

Compliance Certificate.

17

Section 4.4.

Stay, Extension and Usury Laws.

17

 

 

 

ARTICLE V. SUCCESSORS

18

Section 5.1.

When Company May Merge, Etc.

18

Section 5.2.

Successor Corporation Substituted.

18

 

 

 

ARTICLE VI. DEFAULTS AND REMEDIES

19

Section 6.1.

Events of Default.

19

 

i


 

Section 6.2.

Acceleration of Maturity; Rescission and Annulment.

20

Section 6.3.

Collection of Indebtedness and Suits for Enforcement by Trustee.

20

Section 6.4.

Trustee May File Proofs of Claim.

21

Section 6.5.

Trustee May Enforce Claims Without Possession of Securities.

22

Section 6.6.

Application of Money Collected.

22

Section 6.7.

Limitation on Suits.

23

Section 6.8.

Unconditional Right of Holders to Receive Principal and Interest.

23

Section 6.9.

Restoration of Rights and Remedies.

23

Section 6.10.

Rights and Remedies Cumulative.

24

Section 6.11.

Delay or Omission Not Waiver.

24

Section 6.12.

Control by Holders.

24

Section 6.13.

Waiver of Past Defaults.

24

Section 6.14.

Undertaking for Costs.

25

 

 

 

ARTICLE VII. TRUSTEE

25

Section 7.1.

Duties of Trustee.

25

Section 7.2.

Rights of Trustee.

26

Section 7.3.

Individual Rights of Trustee.

28

Section 7.4.

Trustee’s Disclaimer.

28

Section 7.5.

Notice of Defaults.

28

Section 7.6.

Reports by Trustee to Holders.

28

Section 7.7.

Compensation and Indemnity.

28

Section 7.8.

Replacement of Trustee.

29

Section 7.9.

Successor Trustee by Merger, Etc.

30

Section 7.10.

Eligibility; Disqualification.

30

Section 7.11.

Preferential Collection of Claims Against Company.

30

 

 

 

ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE

31

Section 8.1.

Satisfaction and Discharge of Indenture.

31

Section 8.2.

Application of Trust Funds; Indemnification.

32

Section 8.3.

Legal Defeasance of Securities of any Series.

32

Section 8.4.

Covenant Defeasance.

34

Section 8.5.

Repayment to Company.

35

Section 8.6.

Reinstatement.

35

 

 

 

ARTICLE IX. AMENDMENTS AND WAIVERS

36

Section 9.1.

Without Consent of Holders.

36

Section 9.2.

With Consent of Holders.

36

Section 9.3.

Limitations.

37

Section 9.4.

Compliance with Trust Indenture Act.

37

Section 9.5.

Revocation and Effect of Consents.

38

Section 9.6.

Notation on or Exchange of Securities.

38

Section 9.7.

Trustee Protected.

38

 

 

 

ARTICLE X. MISCELLANEOUS

39

Section 10.1.

Trust Indenture Act Controls.

39

Section 10.2.

Notices.

39

 

ii


 

Section 10.3.

Communication by Holders with Other Holders.

40

Section 10.4.

Certificate and Opinion as to Conditions Precedent.

40

Section 10.5.

Statements Required in Certificate or Opinion.

40

Section 10.6.

Rules by Trustee and Agents.

41

Section 10.7.

Legal Holidays.

41

Section 10.8.

No Recourse Against Others.

41

Section 10.9.

Counterparts; Electronic Signatures.

41

Section 10.10.

Governing Law; Waiver of Jury Trial; Consent to Jurisdiction.

42

Section 10.11.

No Adverse Interpretation of Other Agreements.

42

Section 10.12.

Successors.

42

Section 10.13.

Severability; Entire Agreement.

43

Section 10.14.

Table of Contents, Headings, Etc.

43

Section 10.15.

Securities in a Foreign Currency.

43

Section 10.16.

Judgment Currency.

43

Section 10.17.

Force Majeure.

44

Section 10.18.

U.S.A. Patriot Act.

44

 

 

 

ARTICLE XI. SINKING FUNDS

45

Section 11.1.

Applicability of Article.

45

Section 11.2.

Satisfaction of Sinking Fund Payments with Securities.

45

Section 11.3.

Redemption of Securities for Sinking Fund.

45

 

iii


 

CORE-MARK HOLDING COMPANY, INC.

 

Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of                    , 20

 

§ 310(a)(1)

 

7.10

(a)(2)

 

7.10

(a)(3)

 

Not Applicable

(a)(4)

 

Not Applicable

(a)(5)

 

7.10

(b)

 

7.10

§ 311(a)

 

7.11

(b)

 

7.11

(c)

 

Not Applicable

§ 312(a)

 

2.6

(b)

 

10.3

(c)

 

10.3

§ 313(a)

 

7.6

(b)(1)

 

7.6

(b)(2)

 

7.6

(c)(1)

 

7.6

(d)

 

7.6

§ 314(a)

 

4.2, 10.5

(b)

 

Not Applicable

(c)(1)

 

10.4

(c)(2)

 

10.4

(c)(3)

 

Not Applicable

(d)

 

Not Applicable

(e)

 

10.5

(f)

 

Not Applicable

§ 315(a)

 

7.1

(b)

 

7.5

(c)

 

7.1

(d)

 

7.1

(e)

 

6.14

§ 316(a)

 

2.10

(a)(1)(A)

 

6.12

(a)(1)(B)

 

6.13

(b)

 

6.8

§ 317(a)(1)

 

6.3

(a)(2)

 

6.4

(b)

 

2.5

§ 318(a)

 

10.1

 


Note:  This reconciliation and tie shall not, for any purpose, be deemed to be part of the Indenture.

 

iv


 

Indenture dated as of                   , 20       between Core-Mark Holding Company, Inc., Delaware corporation (“Company”), and Wilmington Trust, National Association, a national banking association, as trustee (“Trustee”).

 

Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture.

 

ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.1.           Definitions.

 

Affiliate” of any specified person means any other person directly or indirectly controlling or controlled by or under common control with such specified person.   For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities or by agreement or otherwise.

 

Agent” means any Registrar, Paying Agent or Notice Agent.

 

Board of Directors” means the board of directors of the Company or any duly authorized committee thereof.

 

Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and delivered to the Trustee.

 

Business Day” means any day except a Saturday, Sunday or a legal holiday in The City of New York, New York (or in connection with any payment, the place of payment) on which banking institutions are authorized or required by law, regulation or executive order to close.

 

Capital Stock” means any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock.

 

Company” means the party named as such above until a successor replaces it and thereafter means the successor.

 

Company Order” means a written order signed in the name of the Company by an Officer.

 

Corporate Trust Office” means the office of the Trustee at which at any particular time its corporate trust business related to this Indenture shall be principally administered.

 


 

Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.

 

Depositary” means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities, the person designated as Depositary for such Series by the Company, which Depositary shall be a clearing agency registered under the Exchange Act; and if at any time there is more than one such person, “Depositary” as used with respect to the Securities of any Series shall mean the Depositary with respect to the Securities of such Series.

 

Discount Security” means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.2.

 

Dollars” and “$” means the currency of The United States of America.

 

Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

Foreign Currency” means any currency or currency unit issued by a government other than the government of The United States of America.

 

Foreign Government Obligations” means, with respect to Securities of any Series that are denominated in a Foreign Currency, direct obligations of, or obligations guaranteed by, the government that issued or caused to be issued such currency for the payment of which obligations its full faith and credit is pledged and which are not callable or redeemable at the option of the issuer thereof.

 

“GAAP” means accounting principles generally accepted in the United States of America set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect as of the date of determination.

 

Global Security” or “Global Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2 evidencing all or part of a Series of Securities, issued to the Depositary for such Series or its nominee, and registered in the name of such Depositary or nominee.

 

Holder” or “Securityholder” means a person in whose name a Security is registered.

 

Indenture” means this Indenture as amended or supplemented from time to time and shall include the form and terms of particular Series of Securities established as contemplated hereunder.

 

interest” with respect to any Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.

 

2


 

Maturity,” when used with respect to any Security, means the date on which the principal of such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.

 

Officer” means the Chief Executive Officer, President, the Chief Financial Officer, the Treasurer or any Assistant Treasurer, the Secretary or any Assistant Secretary, and any Vice President of the Company, whether or not designated by a number or numbers or a word or words added before or after the title “Vice President”.

 

Officer’s Certificate” means a certificate signed by any Officer.

 

Opinion of Counsel” means a written opinion of legal counsel who is acceptable to the Trustee.  The counsel may be an employee of or counsel to the Company. The opinion may contain customary limitations, conditions and exceptions.

 

person” means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

 

principal” of a Security means the principal of the Security plus, when appropriate, the premium, if any, on the Security.

 

Responsible Officer” means any officer of the Trustee in its Corporate Trust Office having responsibility for administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with a particular subject who shall have direct responsibility for the administration of this Indenture.

 

SEC” means the Securities and Exchange Commission.

 

Securities” means the debentures, notes or other debt instruments of the Company of any Series authenticated and delivered under this Indenture.

 

Series” or “Series of Securities” means each series of debentures, notes or other debt instruments of the Company created pursuant to Sections 2.1 and 2.2 hereof.

 

Stated Maturity” when used with respect to any Security, means the date specified in such Security as the fixed date on which the principal of such Security or interest is due and payable.

 

Subsidiary” of any specified person means any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such person or one or more of the other Subsidiaries of that person or a combination thereof.

 

TIA” means the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the date of this Indenture; provided, however, that in the event the Trust Indenture

 

3


 

Act of 1939 is amended after such date, “TIA” means, to the extent required by any such amendment, the Trust Indenture Act as so amended.

 

Trustee” means the person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each person who is then a Trustee hereunder, and if at any time there is more than one such person, “Trustee” as used with respect to the Securities of any Series shall mean the Trustee with respect to Securities of that Series, which shall be appointed pursuant to a supplemental indenture.

 

U.S. Government Obligations” means securities which are direct obligations of, or guaranteed by, The United States of America for the payment of which its full faith and credit is pledged and which are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation evidenced by such depositary receipt.

 

Section 1.2.           Other Definitions.

 

 

 

DEFINED IN

TERM

 

SECTION

 

 

 

Bankruptcy Law

 

6.1

Custodian

 

6.1

Event of Default

 

6.1

Judgment Currency

 

10.16

Legal Holiday

 

10.7

mandatory sinking fund payment

 

11.1

New York Banking Day

 

10.16

Notice Agent

 

2.4

optional sinking fund payment

 

11.1

Paying Agent

 

2.4

Registrar

 

2.4

Required Currency

 

10.16

Specified Courts

 

10.10

successor person

 

5.1

 

Section 1.3.           Incorporation by Reference of Trust Indenture Act.

 

Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.  The following TIA terms used in this Indenture have the following meanings:

 

Commission” means the SEC.

 

4


 

indenture securities” means the Securities.

 

indenture security holder” means a Securityholder.

 

indenture to be qualified” means this Indenture.

 

indenture trustee” or “institutional trustee” means the Trustee.

 

obligor” on the indenture securities means the Company and any successor obligor upon the Securities.

 

All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein are used herein as so defined.

 

Section 1.4.           Rules of Construction.

 

Unless the context otherwise requires:

 

(a)           a term has the meaning assigned to it;

 

(b)           an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;

 

(c)           “or” is not exclusive;

 

(d)           words in the singular include the plural, and in the plural include the singular; and

 

(e)           provisions apply to successive events and transactions.

 

ARTICLE II.
THE SECURITIES

 

Section 2.1.           Issuable in Series.

 

The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.  The Securities may be issued in one or more Series. All Securities of a Series shall be identical except as may be set forth or determined in the manner provided in a Board Resolution, a supplemental indenture or an Officer’s Certificate detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution. In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officer’s Certificate or supplemental indenture detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution may provide for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest shall accrue) are to be determined.  Securities may differ between Series in respect of any matters, provided that all Series of Securities shall be equally and ratably entitled to the benefits of the Indenture.

 

5


 

Section 2.2.           Establishment of Terms of Series of Securities.

 

At or prior to the issuance of any Securities within a Series, the following shall be established (as to the Series generally, in the case of Subsection 2.2.1 and either as to such Securities within the Series or as to the Series generally in the case of Subsections 2.2.2 through 2.2.23) by or pursuant to a Board Resolution, and set forth or determined in the manner provided in a Board Resolution, supplemental indenture hereto or Officer’s Certificate:

 

2.2.1.              the title (which shall distinguish the Securities of that particular Series from the Securities of any other Series) and ranking (including the terms of any subordination provisions) of the Series;

 

2.2.2.              the price or prices (expressed as a percentage of the principal amount thereof) at which the Securities of the Series will be issued;

 

2.2.3.              any limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);

 

2.2.4.              the date or dates on which the principal of the Securities of the Series is payable;

 

2.2.5.              the rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including, but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series shall bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date or dates on which such interest, if any, shall commence and be payable and any regular record date for the interest payable on any interest payment date;

 

2.2.6.              the place or places where the principal of and interest, if any, on the Securities of the Series shall be payable, where the Securities of such Series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of such Series and this Indenture may be delivered, and the method of such payment, if by wire transfer, mail or other means;

 

2.2.7.              if applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the Securities of the Series may be redeemed, in whole or in part, at the option of the Company;

 

2.2.8.              the obligation, if any, of the Company to redeem or purchase the Securities of the Series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;

 

6


 

2.2.9.              the dates, if any, on which and the price or prices at which the Securities of the Series will be repurchased by the Company at the option of the Holders thereof and other detailed terms and provisions of such repurchase obligations;

 

2.2.10.            if other than denominations of $1,000 and any integral multiple thereof, the denominations in which the Securities of the Series shall be issuable;

 

2.2.11.            the forms of the Securities of the Series and whether the Securities will be issuable as Global Securities;

 

2.2.12.            if other than the principal amount thereof, the portion of the principal amount of the Securities of the Series that shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.2;

 

2.2.13.            the currency of denomination of the Securities of the Series, which may be Dollars or any Foreign Currency, and if such currency of denomination is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency;

 

2.2.14.            the designation of the currency, currencies or currency units in which payment of the principal of and interest, if any, on the Securities of the Series will be made;

 

2.2.15.            if payments of principal of or interest, if any, on the Securities of the Series are to be made in one or more currencies or currency units other than that or those in which such Securities are denominated, the manner in which the exchange rate with respect to such payments will be determined;

 

2.2.16.            the manner in which the amounts of payment of principal of or interest, if any, on the Securities of the Series will be determined, if such amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index, stock exchange index or financial index;

 

2.2.17.            the provisions, if any, relating to any security provided for the Securities of the Series;

 

2.2.18.            any addition to, deletion of or change in the Events of Default which applies to any Securities of the Series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.2;

 

2.2.19.            any addition to, deletion of or change in the covenants set forth in Articles IV or V which applies to Securities of the Series;

 

2.2.20.            any Depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of such Series if other than those appointed herein;

 

2.2.21.            the provisions, if any, relating to conversion or exchange of any Securities of such Series, including if applicable, the conversion or exchange price, the

 

7


 

conversion or exchange period, provisions as to whether conversion or exchange will be mandatory, at the option of the Holders thereof or at the option of the Company, the events requiring an adjustment of the conversion price or exchange price and provisions affecting conversion or exchange if such Series of Securities are redeemed;

 

2.2.22.            any other terms of the Series (which may supplement, modify or delete any provision of this Indenture insofar as it applies to such Series), including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of Securities of that Series; and

 

2.2.23.            whether any of the Company’s direct or indirect Subsidiaries will guarantee the Securities of that Series, including the terms of subordination, if any, of such guarantees.

 

All Securities of any one Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the Board Resolution, supplemental indenture hereto or Officer’s Certificate referred to above.

 

Section 2.3.           Execution and Authentication.

 

An Officer shall sign the Securities for the Company by manual, electronic or facsimile signature.

 

If an Officer whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.

 

A Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.  The signature shall be conclusive evidence that the Security has been authenticated under this Indenture.

 

The Trustee shall at any time, and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental indenture hereto or Officer’s Certificate, upon receipt by the Trustee of a Company Order.  Each Security shall be dated the date of its authentication.

 

The aggregate principal amount of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set forth in the Board Resolution, supplemental indenture hereto or Officer’s Certificate delivered pursuant to Section 2.2, except as provided in Section 2.8.

 

Prior to the issuance of Securities of any Series, the Trustee shall have received and (subject to Section 7.2) shall be fully protected in relying on:  (a) the Board Resolution, supplemental indenture hereto or Officer’s Certificate establishing the form of the Securities of that Series or of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an Officer’s Certificate complying with Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4.

 

8


 

The Trustee shall have the right to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines that such action may not be taken lawfully; (b) if the Trustee in good faith by its board of directors or trustees, executive committee or a trust committee of directors and/or vice-presidents or a Responsible Officer shall determine that such action would expose the Trustee to personal liability to Holders of any then outstanding Series of Securities, or (c) if the Trustee in good faith shall determine that the terms of any such Securities as set forth in the Board Resolutions or Officer’s Certificate would adversely affect it.

 

The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities.  An authenticating agent may authenticate Securities whenever the Trustee may do so.  Each reference in this Indenture to authentication by the Trustee includes authentication by such agent.  An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate of the Company.

 

Section 2.4.           Registrar and Paying Agent.

 

The Company shall maintain, with respect to each Series of Securities, at the place or places specified with respect to such Series pursuant to Section 2.2, an office or agency where Securities of such Series may be presented or surrendered for payment (“Paying Agent”), where Securities of such Series may be surrendered for registration of transfer or exchange (“Registrar”) and where notices and demands to or upon the Company in respect of the Securities of such Series and this Indenture may be delivered (“Notice Agent”).  The Registrar shall keep a register with respect to each Series of Securities and to their transfer and exchange.  The Company will give prompt written notice to the Trustee of the name and address, and any change in the name or address, of each Registrar, Paying Agent or Notice Agent.  If at any time the Company shall fail to maintain any such required Registrar, Paying Agent or Notice Agent or shall fail to furnish the Trustee with the name and address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands; provided, however, that any appointment of the Trustee as the Notice Agent shall exclude the appointment of the Trustee or any office of the Trustee as an agent to receive the service of legal process on the Company.

 

The Company may also from time to time designate one or more co-registrars, additional paying agents or additional notice agents and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain a Registrar, Paying Agent and Notice Agent in each place so specified pursuant to Section 2.2 for Securities of any Series for such purposes.  The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the name or address of any such co-registrar, additional paying agent or additional notice agent.  The term “Registrar” includes any co-registrar; the term “Paying Agent” includes any additional paying agent; and the term “Notice Agent” includes any additional notice agent.  The Company or any of its Affiliates may serve as Registrar or Paying Agent.

 

9


 

The Company hereby appoints the Trustee the initial Registrar, Paying Agent and Notice Agent for each Series unless another Registrar, Paying Agent or Notice Agent, as the case may be, is appointed prior to the time Securities of that Series are first issued.