SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
(Amendment No. )
Filed by the Registrant [X]
Filed by a Party other than Registrant [ ]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to ss.240.14a-11(c) or ss.240.14a-12
Gibbs Construction, Inc.
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(Name of Registrant as Specified In Its Charter)
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(Name of Person(s) Filing Proxy Statement if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Acts Rules 14a-(6)(i)(1) and 0-11.
1. Title of each class of securities to which transaction applies.
2. Aggregate number of securities to which transaction applied:
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pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the
filing fee is calculated and state how it was determined):
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5. Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-12(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration
statement number, of the Form or Schedule and the date of its filing.
1. Amount Previously Paid.
2. Form, Schedule or Registration Statement No.:
3. Filing Party:
4. Date Filed:
GIBBS CONSTRUCTION, INC.
1515 East Silver Springs Boulevard - Suite 118.4
Ocala, FL 34470
Facsimile (352) 502-4783
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
To Be Held October 25, 2006
TO THE STOCKHOLDERS OF GIBBS CONSTRUCTION, INC.:
Notice is hereby given that a Special Meeting of Stockholders of Gibbs
Construction, Inc. (the "Company") will be held at 10:00 a.m. on Wednesday,
October 25, 2006 at the Richardson Renaissance Hotel, 900 E. Lookout Drive,
Richardson, TX 75082, for the following purposes:
1. To approve a series of amendments to the Company's Restated
Certificate of Incorporation (the "Proposed Amendments") (i) to effect a
one for eight reverse stock split of our Common Stock; (ii) increase the
number of authorized shares to 150,000,000; (iii) authorize 2,000,000
shares of preferred stock, granting the directors the power to establish
the rights, powers, and privileges of a series of preferred stock; and
(iv) change the name of the Corporation to Acacia Automotive, Inc. If
approved, the Board of Directors will have the discretion to effect one of
such Proposed Amendments and abandon the other Proposed Amendments or to
abandon all of the Proposed Amendments as permitted under Section
4.02a.(4) of the Texas Business Corporation Act;
2. To transact such other business as may properly come before the
Special Meeting or at any adjournments or postponements thereof.
The Board of Directors has fixed the close of business on October 2, 2006
as the record date for the determination of the stockholders entitled to notice
of, and to vote at, the Special Meeting of Stockholders and at any adjournments
or postponements thereof.
By Order of the Board of Directors
/s/ Steven L. Sample
Steven L. Sample
Chief Executive Officer
Ocala, Florida
October _, 2006
YOUR VOTE IS IMPORTANT
If you do not expect to attend the Special Meeting, or if you do plan
to attend but wish to vote by proxy, please complete, sign, date and
return promptly the enclosed proxy card in the enclosed postage-paid
envelope.
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GIBBS CONSTRUCTION, INC.
1515 East Silver Springs Boulevard - Suite 118.4
Ocala, FL 34470
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PROXY STATEMENT
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SPECIAL MEETING OF STOCKHOLDERS
to be held on October 25, 2006
General
This Proxy Statement is being furnished to the holders of the common
stock, $0.01 par value per share (the "Common Stock") of Gibbs Construction,
Inc., a Texas corporation (the "Company" or "Gibbs"), in connection with the
solicitation by the Board of Directors of proxies for use at a Special Meeting
of Stockholders to be held on October 25, 2006 (the "Special Meeting")
commencing at 10:00 a.m., at the Richardson Renaissance Hotel, 900 E. Lookout
Drive, Richardson, TX 75082, and at any adjournments or postponements thereof.
The matters to be considered and acted upon at the meeting are described below
in this Proxy Statement.
The principal executive offices of the Company are located at 1515 East
Silver Springs Boulevard - Suite 118.4, Ocala, FL 34470. The approximate mailing
date of this Proxy Statement and the accompanying proxy is October 6, 2006.
Voting Rights and Votes Required
Only stockholders of record at the close of business on October 2, 2006
will be entitled to notice of, and to vote at, the Special Meeting. As of such
record date, the Company had outstanding 8,060,000 shares of Common Stock. Each
stockholder is entitled to one vote for each share of Common Stock held on the
matters to be considered at the Special Meeting. The holders of a majority of
the outstanding shares of Common Stock will constitute a quorum for the
transaction of business at the meeting. Shares of Common Stock present in
person, or represented by proxy (including shares of Common Stock, which abstain
or do not vote, with respect to one or more of the matters presented for
stockholder approval) will be counted for purposes of determining whether a
quorum exists at the meeting. If a broker or nominee holding stock in "street
name" indicates on the proxy that it does not have discretionary authority to
vote as to a matter, those shares of Common Stock will not be considered as
present and entitled to vote with respect to such matter.
The affirmative vote of the holders of the majority of shares of Common
Stock entitled to vote at the Special Meeting is required for the approval of
the proposals to amend the Restated Certificate of Incorporation of the Company.
Abstentions and "broker non-votes" will have the effect of a vote against the
proposed amendments. A "broker non-vote" occurs when a broker does not have
discretionary authority with respect to a particular proposal (i.e. it is not
considered "routine") and has not received instructions from the beneficial
owner of the shares. Generally, brokers have discretion to vote shares on what
are deemed to be "routine" matters, which, in most cases, include the approval
of reverse stock splits.
The accompanying proxy may be revoked at any time before it is exercised
by giving a later proxy, notifying the Secretary of the Company in writing, or
voting in person at the meeting.
STOCKHOLDERS OF THE COMPANY ARE REQUESTED TO COMPLETE, SIGN, DATE AND PROMPTLY
RETURN THE ACCOMPANYING PROXY CARD IN THE ENCLOSED POSTAGE-PREPAID ENVELOPE.
SHARES OF COMMON STOCK REPRESENTED BY A PROPERLY EXECUTED PROXY RECEIVED PRIOR
TO THE VOTE AT THE SPECIAL MEETING AND NOT REVOKED WILL BE VOTED AT THE SPECIAL
MEETING AS DIRECTED BY THE PROXY. IT IS NOT ANTICIPATED THAT ANY MATTERS OTHER
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THAN THOSE SET FORTH IN THE PROXY STATEMENT WILL BE PRESENTED AT THE SPECIAL
MEETING. IF OTHER MATTERS ARE PRESENTED, PROXIES WILL BE VOTED IN ACCORDANCE
WITH THE DISCRETION OF THE PROXY HOLDERS.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information about the beneficial ownership
of our common stock as of September 29, 2006 except as otherwise noted:
Percent Number Percent
of All of Shares of All
Number of Shares Outstanding of Common Outstanding
of Common Common Stock to Common Stock
Beneficial Owner(1) Stock Owned(2) Stock Owned be Owned(1) to be Owned(2)
- ------------------- --------------- ----------- ----------- --------------
Steven L. Sample 4,000,000 49.6% 9,142,500(3) 90.5%
1515 East Silver Springs Boulevard
Suite 118.4
Ocala, FL 34470
Danny R. Gibbs 1,000,000 12.4% 125,000 1.24%
6209 Chelsea Way
Garland, TX 75044
Tony G. Gibbs 1,000,000 12.4% 125,000 1.24%
2801 Seminary Circle
Garland, TX 75043
Linda M. Myers(4) - -% - -%
1515 East Silver Springs Boulevard
Suite 118.4
Ocala, FL 34470
All executive officers and
directors as a group (two persons) 5,000,000 62.0% 9,267,500 90.5%
(1) With respect to the number of votes held by Mr. Sample following the
adoption of the proposals and the issuance of the Common Stock and Preferred
Stock as described herein, Mr. Sample's percentage would increase to 34,867,500
votes or 97.3% of the total number of votes.
(2) Reflects shares of Common Stock to be issued following the adoption of the
proposals set forth herein as well as Preferred Stock to be similarly issued,
said preferred stock indicated on an as converted basis. See Proposal No. 1 -
General.
(3) Includes 25,000 shares owned by the spouse of Ms. Myers or his affiliates as
to which Ms. Myers denies beneficial ownership but for which Mr. Sample holds an
irrevocable proxy.
(4) Excludes 212,800 shares of Common Stock, 450,000 shares of Common Stock to
be issued following the adoption of these resolutions, and 25,000 shares of
preferred stock presently owned or to be owned by the spouse of Ms. Myers or her
spouse's affiliates as to which Ms. Myers denies beneficial ownership. With
respect to shares that will be issued to Mr. Sample and Ms. Myers's husband or
her husband's affiliates, see Proposal No. 1 - General.
PROPOSAL NO. 1
APPROVAL OF A SERIES OF AMENDMENTS TO THE COMPANY'S RESTATED CERTIFICATE
OF INCORPORATION (THE "PROPOSED AMENDMENTS") (I) TO EFFECT A ONE FOR EIGHT
REVERSE STOCK SPLIT OF OUR COMMON STOCK; (II) INCREASE THE NUMBER OF AUTHORIZED
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SHARES TO 150,000,000; (III) AUTHORIZE 2,000,000 SHARES OF PREFERRED STOCK,
GRANTING THE DIRECTORS THE POWER TO ESTABLISH THE RIGHTS, POWERS, AND PRIVILEGES
OF A SERIES OF PREFERRED STOCK; AND (IV) CHANGE THE NAME OF THE CORPORATION TO
ACACIA AUTOMOTIVE, INC. IF APPROVED, THE BOARD OF DIRECTORS WILL HAVE THE
DISCRETION TO EFFECT ONE OF SUCH PROPOSED AMENDMENTS AND ABANDON THE OTHER
PROPOSED AMENDMENTS OR TO ABANDON ALL OF THE PROPOSED AMENDMENTS AS PERMITTED
UNDER SECTION 4.02.A(4) OF THE TEXAS BUSINESS CORPORATION ACT;
General
An individual, Steven L. Sample, recently funded several expenses of the
Company, including attorney fees to close the Company's bankruptcy proceeding,
other legal fees, and stock transfer fees. Mr. Sample did so for the purpose of
having a public entity that would acquire operating assets, automobile auctions
in particular, to be placed into the Company. Although Mr. Sample has held no
discussions with any potential automobile auction regarding its possible
acquisition by the Company, the purpose of these amendments is to establish a
corporate structure that will permit Mr. Sample to implement his strategy and
enable the Company to issue Mr. Sample securities for expenses of the Company
Mr. Sample has paid.
The board of directors has adopted a resolution approving, subject to
approval by the Company's stockholders, the Proposed Amendments to the Company's
Restated Certificate of Incorporation, namely, (i) to effect a one for eight
reverse stock split of our Common Stock; (ii) increase the number of authorized
shares of Common Stock to 150,000,000; (iii) authorize 2,000,000 shares of
preferred stock, granting the directors the power to establish the rights,
powers, and privileges of a series of preferred stock; and (iv) change the name
of the Company to Acacia Automotive, Inc. If the Proposed Amendments are
approved by stockholders the Proposed Amendments will be filed with the
Secretary of State of the State of Texas.
For expenses Mr. Sample has advanced for the Company, the Company has,
subject to ratification of these amendments by its stockholders, agreed to issue
8,117,500 shares of Common Stock, on a post split basis, to Mr. Sample and
450,000 shares to the spouse of Ms. Myers. The Company has similarly agreed to
issue 500,000 shares and 25,000 shares, respectively, of Series A Preferred
stock to Mr. Sample and the affiliate.
The purpose for each of the amendments is described below.
Background for the One for Eight Reverse Stock Split and Increasing the Number
of Authorized Shares
The one for eight reverse stock split will reverse the number of shares to
1,007,500 of which 500,000 shares will be owned by Mr. Sample.
The Board of Directors of the Company has adopted a resolution
recommending that the stockholders amend the Certificate of Incorporation to
effect a one for eight reverse split of the Company's outstanding common stock
(the "Reverse Split"). Upon approval of the amendments by the Company's
stockholders, we will immediately file the Amendment with the Secretary of State
of Texas, and it will become effective on the date of such filing (the
"Effective Date").
The Amendment to the Certificate of Incorporation provides that each eight
shares of common stock outstanding on the Effective Date will be exchanged for
one post-Reverse Split share of the Company's common stock ("New Common
Stock"). No fractional shares or scrip will be issued; rather, shareholders who
would otherwise be entitled to a fractional share as a result of the Reverse
Split will be issued one whole share of New Common Stock in lieu of the
fraction.
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Reasons for Approving the One for Eight Reverse Stock Split and Increasing the
Number of Authorized Shares
The Company plans to purchase several automobile auctions using additional
cash obtained through the issuance of Common Stock to acquire those operations.
The Company may also use Common Stock as part of the consideration to acquire
operations. Without a reverse stock split and an attendant increase in the
number of authorized shares of the Company's common stock, the board of
directors believes that there would not be a sufficient number of shares
authorized to permit the funding and any possible acquisition utilizing shares,
particularly since Mr. Sample has not been issued any shares by the Company for
the expenses he has provided paid for the Company.
Following the acquisition of operating assets, management of the Company
desires to have a price per share in the trading market of at least $5.00 per
share, largely based upon the possibility of the stock being technically defined
as a penny stock. If a security does not trade on a stock exchange and has a
market price that is less than $5.00 per share, the stock qualifies as a "penny
stock." SEC Rule 15g-9 under the Securities Exchange Act of 1934 imposes
additional sales practice requirements on broker-dealers that recommend the
purchase or sale of penny stocks to persons other than those who qualify as an
"established customer" or an "accredited investor." Most institutional investors
will not invest in penny stocks, and many brokerage firms will discourage their
customers from purchasing penny stocks and will not recommend a penny stock to
their customers. Additionally, the brokerage commissions on the purchase or sale
of stock with a relatively low per share price generally tend to represent a
higher percentage of the sales price than the commission charges on a stock with
a relatively high per share price. The Board of Directors believes these issues
are best addressed by increasing the value per share of the common stock, which
it anticipates will occur as a result of the Reverse Split.
The price of shares of Common Stock that are contemplated being offered is
determined by management's, particularly that of Mr. Sample, judgment about the
potential profitability of an acquired automobile auction and the effect of that
profitability on the price of the stock. Without a reverse stock split,
management of the Company believes that a large number of shares would have to
be issued to raise the capital and, given the large number of shares, would have
to be issued at a low price relative to the earning power of the industry into
which the Company plans to enter.
There can be no assurance that the price of the stock will exceed $5.00
per share if the plan, as contemplated is implemented.
A low stock price can have the effect of reducing the liquidity of a
corporation's stock.
Assuming that the reverse stock split is approved and that the shares of
common and preferred stock are issued and converted, there will be 150,000,000
common shares authorized and approximately 10,100,000 common shares outstanding.
The Board of Directors will be authorized to issue the remaining 139,900,000
shares of Common Stock without having to obtain the approval of the
Corporation's shareholders. The Company plans to issue up to 10,000,000 shares
of Common Stock, on a post split basis, in a capital raising transaction. The
issuance of the additional shares would dilute the proportionate interest of
current shareholders in the Company.
Reasons for the authorization of Preferred Stock
The 2,000,000 shares of Preferred Stock may be issued in series from time
to time with such designations, rights, preferences and limitations as the
Company's Board of Directors may determine by resolution. Any series of
preferred stock may possess voting, dividend, liquidation and redemption rights
superior to those of the Company's Common Stock. The rights of the holders of
Common Stock will be subject to and may be adversely affected by the rights of
the holders of any of the Preferred Stock that may be issued in the future.
Issuance of a series of Preferred Stock, or providing desirable flexibility in
connection with possible acquisitions and other corporate purposes, could make
it more difficult for a third party to acquire, or discourage a third party from
acquiring our outstanding shares of Common Stock and make removal of the Board
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of Directors more difficult. The Company has no shares of Preferred Stock
currently authorized.
As indicated above, the Company does have plans to issue 525,000 shares of
preferred stock. While this stock is convertible into Common Stock on a share
for share basis and would participate in any liquidation on the same basis, each
share of preferred stock has 50 votes on all matters to be voted on by the
shareholders of the Corporation. Of the 525,000 shares to be issued as Series A
Preferred, 500,000 would be issued to Mr. Sample. Accordingly, after the
adoption of the amendments set forth herein and with the irrevocable proxy of
the holder of the remaining votes, Mr. Sample would have 34,867,500 votes of the
total votes of 35,825,000, or 97.3% of the total votes. Accordingly, any third
party would, for the reasonably foreseeable future require Mr. Sample's consent
to acquire the Company or have influence without Mr. Sample's consent.
The purpose of the issuance of the preferred stock to Mr. Sample is that
the success or failure of the Company will be with Mr. Sample and his
initiative. The voting provisions of the proposed stock would assure Mr.
Sample's control to effect the business plan. Nonetheless, the provision would
significantly inhibit the ability of any stockholder or group of stockholders to
implement a plan other than that contemplated or approved by Mr. Sample.
In addition, the Company has reserved 1,000,000 shares of preferred stock
for issuance pursuant to its understanding of the proceedings in the bankruptcy
court. One creditor was granted the right to obtain 1,000,000 shares of
preferred stock, neither the amendment to the articles of incorporation
permitting the establishment of that series nor the resolution establishing the
series was filed with the Secretary of State of Texas. While the Company is
attempting to negotiate with the creditor to extinguish this right, the Company
wishes to have the power to issue the shares in the event such negotiations are
not successful.
A copy of the proposed designations of rights and preferences is attached
hereto.
General Effect of The Reverse Stock Split On Capital Stock
The New Common Stock will not be different from the common stock held by
the Company's stockholders prior to the Reverse Split. The stockholders will
have the same relative rights following the Effective Date as they had prior to
the Effective Date, except to the extent the proportion of shares that they own
is affected by the issuance of fractional shares.
Reasons for amending the Articles of Incorporation to change the name.
The Board of Directors of the Company has adopted a resolution to change
the name of the corporation from Gibbs Construction, Inc. to "Acacia Automotive,
Inc." The primary purpose of the name change is to better represent the
corporation's anticipated business, the owning and operation of automobile
auctions. The Board of Directors has determined to change the corporation's name
to better indicate the nature of the corporation's business.
Previous compensation to officers of the Company
For the last three fiscal years, the Company has been inactive, without a
Chief Executive Officer. No officer or director of the Company has received
compensation and, except as described herein, there are no plans to issue stock
or other compensation to officers of the Company. Upon funding of a private
placement, the Company anticipates paying to Mr. Sample a base salary of
$150,000.
EXCHANGE OF STOCK CERTIFICATE
Certificates for the corporation's common stock that recite the name
"Gibbs Construction, Inc." will continue to represent shares of the corporation
after the Effective Date. If, however, a shareholder wishes to exchange his
certificate for a certificate reciting the name "Acacia Automotive, Inc." after
the Effective Date, he may do so by surrendering his certificate to the
corporation's Transfer Agent with a request for a replacement certificate and
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the appropriate stock transfer fee. Gibbs Construction, Inc.'s Transfer Agent
is:
Pacific Stock Transfer Company
500 E. Warm Springs Road - Suite 240
Lax Vegas, NV 89119
Phone: (702) 361-3033
Fax: (702) 433-1979
NO DISSENTERS RIGHTS
Under Texas law, shareholders are not entitled to dissenters' rights with
respect to any of the transactions described in this Proxy Statement.
October _, 2006
By Order of the Board of Directors
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EXHIBIT A - RESOLUTIONS AMENDMENTING ARTICLES OF INCORPORATION
RESOLVED, that ARTICLE ONE be, and it hereby is
deleted in its entirety and a new ARTICLE ONE be, and it
hereby is, adopted to read as follows:
ARTICLE ONE
The name of the Corporation is Acacia Automotive, Inc.
RESOLVED, that ARTICLE FOUR be, and it hereby is,
deleted in its entirety and a new ARTICLE FOUR be, and it
hereby is, adopted to read as follows:
ARTICLE FOUR
The corporation shall be authorized to issue two
classes of shares of stock to be designated, respectively,
"Preferred Stock" and Common Stock"; the total number of
shares of stock which the corporation shall have authority to
issue is One hundred fifty two million (152,000,000); the
total number of shares of Preferred Stock shall be Two
Million (2,000,000) with a par value of One Tenth of a Cent
($0.001); the total number of shares of Common Stock shall be
One Hundred Fifty Million (150,000,000) with a par value of
One Tenth of a Cent ($0.001).
Shares of Preferred Stock may be issued from time to
time in one or more series. The Board of Directors is hereby
authorized to fix the voting rights, designations, powers,
preferences, and the relative, participating, optional or
other rights, if any, and the qualifications, limitations or
restrictions thereof, of any wholly unissued series of
Preferred Stock; and to fix the number of shares constituting
such series, and to increase or decrease the number of shares
of any such series (but not below the number of shares
thereof then outstanding).
Effective on the filing of this Certificate of
Amendment of Restated Certificate of Incorporation (the
"Effective Time"), a one-for-eight reverse stock split of the
Corporation's Common Stock shall become effective, pursuant
to which each eight shares of Common Stock outstanding and
held of record by each stockholder of the Corporation
(including treasury shares) immediately prior to the
Effective Time (the "Old Common Stock") shall be reclassified
and combined (the "Reverse Split") into one share of Common
Stock automatically and without any action by the holder
thereof upon the Effective Time and shall represent one share
of Common Stock from and after the Effective Time (the "New
Common Stock"). No fractional shares of Common Stock shall be
issued as a result of such reclassification and combination.
In lieu of any fractional share to which the stockholder
would otherwise be entitled, the Corporation shall issue such
additional fraction of a share as is necessary to increase
the fractional share to a full share. Whether or not
fractional shares are issuable upon such reclassification and
combination shall be determined on the basis of the total
number of shares of Old Common Stock held by a holder and the
total number of shares of New Common Stock issuable to such
holder as a result of the Reverse Split.
EXHIBIT B - PROSPOSED DESIGNATION OF RIGHTS AND PREFERENCES OF SERIES A
PREFERRED STOCK
The Series A Preferred Stock shall consist of 525,000 shares. The powers,
preferences, rights, restrictions, and other matters relating to the Series A
Preferred Stock are as follows:
1. Dividends
(a) Dividends may be paid on either or both the Common Stock and the
Series A Preferred Stock as and when declared by the Board of
Directors of the Corporation out of funds of the Corporation
legally available for the payment of dividends, except that so
long as any shares of Series A Preferred Stock are outstanding:
(i) No dividend (other than a dividend payable in shares of the
Corporation in the manner provided in paragraph 1(a)(ii)
below) shall be declared or paid upon either the Common
Stock or the Series A Preferred Stock unless such dividend
is simultaneously declared and paid upon both Common Stock
and Series A Preferred Stock, the dividend on the Series A
Preferred Stock being paid on an as converted basis.
(ii) Stock dividends declared and paid on the Common Stock shall
be payable solely in shares of Common Stock and stock
dividends declared and paid on the Series A Preferred Stock
shall be paid solely in shares of Series A Preferred Stock.
No stock dividend may be declared or paid on the Common
Stock unless a stock dividend payable in shares of Series A
Preferred Stock, proportionately on a per share basis, is
simultaneously declared and paid on the Series A Preferred
Stock. No stock dividend may be declared or paid on the
Series A Preferred Stock unless a stock dividend payable in
shares of Common Stock, proportionately on a per share
basis, is simultaneously declared and paid on the Common
Stock.
(b) In the event the Corporation shall declare a distribution (other
than any distribution described in Section 2 or Section 3)
payable in securities of other persons, evidences of indebtedness
issued by the Corporation or other persons, assets (excluding
cash dividends) or options or rights to purchase any such
securities or evidences of indebtedness, then, in each such case
the holders of the Series A Preferred Stock shall be entitled to
a proportionate share of any such distribution as though the
holders of the Series A Preferred Stock of the number of shares
of Common Stock of the Corporation into which their respective
shares of Series A Preferred Stock are convertible as of the
record date fixed for the determination of the holders of Common
Stock of the Corporation entitled to receive such distribution.
2. Liquidation
(a) In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of the
Common Stock and Series A Preferred Stock shall participate
ratably in proportion to the shares of Common Stock then held by
them and the shares of Common Stock which they then have the
right to acquire upon conversion of the shares of Series A
Preferred Stock then held by them.
(b) For purposes of this Section 2, (i) any acquisition of the
Corporation by means of merger or other form of corporate
reorganization in which outstanding shares of the Corporation are
exchanged for securities or other consideration issued, or caused
to be issued, by the acquiring corporation or its subsidiary
(other than a mere reincorporation transaction) or (ii) a sale of
all or substantially all of the assets of the Corporation, shall
be treated as a liquidation, dissolution or winding up of the
Corporation and shall entitle the holders of Series A Preferred
Stock and Common Stock to receive at the closing in cash,
securities or other property amounts as specified in Sections
2(a) above.
(c) Whenever the distribution provided for in this Section 2 shall be
payable in securities or property other than cash, the value of
such distribution shall be the fair market value of such
securities or other property as determined in good faith by the
Board of Directors.
3. Redemption - The Series A Preferred Stock may not be redeemed.
4. Voting Rights
Each holder of shares of the Series A Preferred Stock shall be entitled to
50 votes on all matters to be voted on by the shareholders of the
Corporation for each share of Series A Preferred Stock held.
5. Conversion
The holders of the Series A Preferred Stock shall have conversion rights as
follows (the "Conversion Rights"):
(a) Right to Convert. Each share of Series A Preferred Stock shall be
convertible, at the option of the holder thereof, into one share
of Common Stock.
(b) Mandatory Conversion of Series A Preferred Stock. Upon the death
of the Original Holder or the transfer of shares of Series A
Preferred Stock to any person other than a Permitted Transferee,
then, without further act on the part of any person, each share
of Series A Preferred Stock issued and outstanding (in the case
of the Original Holder's death) or each share of Series A
Preferred Stock transferred to a person other than a Permitted
Transferee (in the case of such a transfer) shall be converted to
ten fully paid and nonassessable share of Common Stock. Upon any
such conversion, stock certificates formerly representing
outstanding shares of Series A Preferred Stock shall thereupon
and thereafter be deemed to represent a like number of shares of
Common Stock, and any outstanding right to receive Series A
Preferred Stock shall automatically become the right to receive a
like number of shares of Common Stock.
(c) Mechanics of Conversion. Before any holder of Series A Preferred
Stock shall be entitled to convert the same into shares of Common
Stock, he shall surrender the certificate or certificates
therefore, duly endorsed, at the office of the Corporation or of
any transfer agent for such stock, and shall give written notice
to the Corporation at such office that the holder elects to
convert the same and shall state therein the name or names in
which the holder wishes the certificate or certificates for
shares of Common Stock to be issued. The Corporation shall, as
soon as practicable thereafter, issue and deliver at such office
to such holder of Series A Preferred Stock, a certificate or
certificates for the number of shares of Common Stock to which he
shall be entitled as aforesaid. Such conversion shall be deemed
to have been made immediately prior to the close of business on
the date of surrender of the shares of Series A Preferred Stock
to be converted, and the person or persons entitled to receive
the shares of Common Stock issuable upon such conversion shall be
treated for all purposes as the record holder or holders of such
shares of Common Stock on such date.
(d) Adjustments to Conversion Prices for Stock Dividends and for
Combinations or Subdivision of Common Stock. The shares of Common
Stock and Series A Preferred Stock shall not be subdivided by a
stock split, reclassification or otherwise or combined by reverse
stock split, reclassification or otherwise unless, at the same
time, the shares of Common Stock and Series A Preferred Stock are
proportionately, on a per share basis, so subdivided or combined.
(e) No Impairment. The Corporation will not, by amendment of its
Certificate of Incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek
to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Corporation, but will at
all times in good faith assist in the carrying out of all the
provisions of this Section 5 and in the taking of all such action
as may be necessary or appropriate in order to protect the
Conversion Rights of the holders of the Series A Preferred Stock
against impairment.
(f) Reservation of Stock Issuable Upon Conversion. The Corporation
shall at all times reserve and keep available out if its
authorized but unissued shares of Common Stock, solely for the
purpose of effecting the conversion of the shares of the Series A
Preferred Stock, such number of its shares of Common Stock as
shall from time to time be sufficient to effect the conversion of
all outstanding shares of the Series A Preferred Stock; and if at
any time the number of authorized but unissued shares of Common
Stock shall not be sufficient to effect the conversion of all
then outstanding shares of the Series A Preferred Stock, the
Corporation will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized
but unissued shares of Common Stock to such number of shares as
shall be sufficient for such purpose, including, without
limitation, engaging in best efforts to obtain the requisite
stockholder approval of any necessary amendment to the
Certificate of Incorporation.
6. Restrictions and Limitations.
(a) Transfer of Series A Preferred Stock. No person holding shares of
Series A Preferred Stock may transfer, and the Corporation shall
not register the transfer of such shares of Series A Preferred
Stock, whether by sale, assignment, exchange, gift, bequest,
appointment or otherwise, except to a "Permitted Transferee." The
term "Permitted Transferee" shall mean any trust that is
established by the holder to whom the shares were initially
issued (the "Original Holder") for estate planning purposes that
provides for distribution to the Original Holder's beneficiaries
of shares of Series A Preferred Stock upon the Original Holder's
death, provided that the Original Holder retains voting control
with respect to such shares of Series A Preferred Stock until his
death.
(i) If any shares of Series A Preferred Stock are acquired by
any person who is not a Permitted Transferee, all shares of
Series A Preferred Stock then held by such person shall be
deemed, without further act on the part of any person, to be
converted into shares of Common Stock, and stock
certificates formerly representing such shares of Series A
Preferred Stock shall thereupon and thereafter be deemed to
represent the like number of shares of Common Stock.
(ii) Notwithstanding anything to the contrary set forth herein,
the Original Holder may pledge his shares of Series A
Preferred Stock to a pledgee pursuant to a bona fide pledge
of such shares as collateral security for indebtedness due
to the pledgee; provided, however, that (i) the Original
Holder at all times retains voting control with respect to
such pledged shares until an event of foreclosure or similar
action, and (ii) such shares shall not be transferred to or
registered in the name of any such pledgee and shall remain
subject to the provisions of this paragraph (b). In the
event of foreclosure or other similar action by the pledgee,
such pledged shares of Series A Preferred Stock shall be
deemed, without further act on the part of any person, to be
converted into shares of Common Stock and transferred to the
pledgee.
(iii) Shares of Series A Preferred Stock shall be registered in
the names of the beneficial owners thereof and not in
"street" or "nominee" name. For this purpose, a "beneficial
owner" of any shares of Series A Preferred Stock shall mean
the Original Holder or a Permitted Transferee. The
Corporation shall note or cause to be noted on the
certificates for shares of Series A Preferred Stock, the
existence of the restrictions on transfer and registration
of transfer imposed by this paragraph 6.
7. No Reissuance of Series A Preferred Stock
No share or shares of Series A Preferred Stock acquired by the Corporation
by reason of redemption, purchase, conversion or otherwise shall be
reissued, and all such shares shall be cancelled, retired and eliminated
from the shares which the Corporation shall be authorized to issue.
PROXY
This Proxy is Solicited on Behalf of the Board of Directors
GIBBS CONSTRUCTION, INC.
SPECIAL MEETING
October 25, 2005
The undersigned hereby appoints Steven L. Sample as proxy to represent the
undersigned, with full power of substitution at the Special Meeting of
Stockholders of Gibbs Construction, Inc, to be held on Wednesday, October 25,
2006, at 10:00 a.m. at Richardson Renaissance Hotel, 900 E. Lookout Drive,
Richardson, TX 75082 and at any and all adjournments thereof:
1. PROPOSAL TO AMEND THE COMPANY'S RESTATED CERTIFICATE OF INCORPORATION TO (I)
EFFECT A ONE FOR EIGHT REVERSE STOCK SPLIT OF OUR COMMON STOCK; (II) INCREASE
THE NUMBER OF AUTHORIZED SHARES TO 150,000,000; (III) AUTHORIZE 2,000,000 SHARES
OF PREFERRED STOCK, GRANTING THE DIRECTORS THE POWER TO ESTABLISH THE RIGHTS,
POWERS, AND PRIVILEGES OF A SERIES OF PREFERRED STOCK; AND (IV) CHANGE THE NAME
OF THE CORPORATION TO ACACIA AUTOMOTIVE, INC.
FOR / / AGAINST / / ABSTAIN / /
In their discretion, the Proxies are authorized to vote upon such other matters
that may properly come before the meeting.
THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED HEREIN BY
THE UNDERSIGNED STOCKHOLDER. UNLESS OTHERWISE SPECIFIED, THE SHARES WILL BE
VOTED FOR PROPOSAL 1.
Signatures of Stockholder(s) ___________________________________
Dated _________________
NOTE: Signature should agree with name on stock certificate. Executors,
administrators, trustees and other fiduciaries should so indicate when signing.