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:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[X] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant toss.240.14a-11(c) orss.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)
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[X] No fee required.
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pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the
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statement number, of the Form or Schedule and the date of its filing.
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2. Form, Schedule or Registration Statement No.:
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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 February 1, 2007
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 Thursday,
February 1, 2007 at the Richardson Renaissance Hotel, 900 E. Lookout Drive,
Richardson, TX 75082, for the following purposes (the "Proposed Amendments"):
1. To approve an amendment to reorganize the capital structure of the
Company by amending the Company's Restated Certificate of Incorporation
which will
(i) effect a one for eight reverse stock split of our Common Stock;
(ii) increase the number of authorized shares from 15,000,000 to
150,000,000, changing the par value of the Common Stock to $0.001 per
share; and
(iii) authorize 2,000,000 shares of preferred stock, par value $0.001
per share, granting the directors the power to establish the rights,
powers, and privileges of a series of preferred stock.
Each of the above matters (the "Capital Restructuring") will be
submitted separately to stockholders for approval but none will be
implemented unless all are approved.
2. To approve an amendment to the Company's Restated Certificate of
Incorporation to change the name of the Company to Acacia Automotive, Inc.
3. 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 December 29,
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
January 16, 2007
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 STATETEMT
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SPECIAL MEETING OF STOCKHOLDERS
to be held on February 1, 2007
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 Company at the direction of the Board of Directors of
proxies for use at a Special Meeting of Stockholders to be held on February 1,
2007 (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 January 18, 2007.
The expense of preparing, printing, and mailing the form of proxy and the
material used in the solicitation thereof will be borne by the Company. In
addition to the use of the mails, proxies may be solicited by personal
interview, telephone, and telegram by directors, officers, and employees of the
Company. Arrangements have been made with brokerage houses and other custodians,
nominees, and fiduciaries for the forwarding of solicitation material to the
beneficial owners of stock held by record by such persons, and the Company will
reimburse them for reasonable out-of-pocket expenses incurred by them in
connection therewith.
Voting Rights and Votes Required
Only stockholders of record at the close of business on December 29, 2007,
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.
1
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
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 December 29, 2006. The last two columns describe
shares assuming all stockholder resolutions described herein are adopted and
related plans implemented:
Percent Number Percent
of All of Shares of All
Number of Shares Outstanding of Common Outstanding
of Common Common Stock to Common Stock
Stock Owned(2) Stock Owned be Owned(1) to be Owned(2)
Beneficial Owner(1) (Pre-Split) (Pre-Split) (Post-Split) (Post-Split)
------------------- ------------------ --------------- ------------- -------------
Steven L. Sample 4,000,000 49.6% 9,142,500(3) 89.4%
1515 East Silver Springs Boulevard
Suite 118.4
Ocala, FL 34470
Danny R. Gibbs 500,000 6.2% 62,500 0.6%
1515 East Silver Springs Boulevard
Suite 118.4
Ocala, FL 34470
Linda M. Myers(4) - -% - -%
1515 East Silver Springs Boulevard
Suite 118.4
Ocala, FL 34470
L. Palmer Sample(5) 500,000 6.2% 62,500 0.6%
3922 SW 103rd Lane
Ocala, FL 34476
C. Scott Sample(5) 500,000 6.2% 62,500 0.6%
6280 Scottsville-Navilleton Road
Floyds Knobs, IN 47119
All executive officers and
directors as a group (four persons) 4,500,000 55.8% 9,205,000 90.0%
(1) The post-split shares assume ratification of the Capital Restructuring
and implementation of the director's resolution to issue shares following the
amendment. The amounts to be issued are 8,117,500 shares of Common Stock to be
issued on a post-split basis to Mr. Sample, 450,000 shares to be issued to the
spouse of Ms. Myers on a post-split basis, and 100,000 shares of Common Stock on
a post-split basis to be issued to a previous creditor of the Company plus an
aggregate of 525,000 shares of preferred stock to be issued to Mr. Sample and
2
the spouse of Ms. Myers with Mr. Sample having the right to vote the shares to
be owned by the spouse of Ms Myers. 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 97.1% of the total number of votes. This
total is based on the 500,000 shares of Common Stock Mr. Sample would own after
the effectiveness of the one for eight reverse split plus the 8,117,500 shares
of Common Stock and the voting rights for 525,000 shares of Common Stock Mr.
Sample to be issued to Mr. Sample in consideration of Company expenses paid by
Mr. Sample and upon the effectiveness of the capital restructuring described
under Proposals 1, 2, and 3. See Footnote 3 to this table and Proposal No. 1, 2,
and 3.
(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 General.
(3) The 9,142,500 is determined as follows: (i) the 4,000,000 shares of Common
Stock presently owned by Mr. Sample will become 500,000 shares of Common Stock
upon the effectiveness of the reverse stock split; (ii) upon the effectiveness
of Proposal No. 1, the Company will issue to Mr. Sample 8,117,500 shares of
Common Stock and 500,000 shares of preferred stock which are convertible into
500,000 shares of Common Stock; and (iii) Mr. Sample has a voting agreement for
25,000 shares of preferred stock to be owned under the same circumstances and
restrictions by the spouse of Ms. Myers. See "Proposal No. 1, 2, and 3"
(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 spouse or
her spouse's affiliates. See General.
(5) L. Palmer Sample and C. Scott Sample are the sons of Steven L. Sample.
DESCRIPTION OF CAPITAL STOCK
The Company's capital stock currently consists of 15,000,000 shares of
Common Stock, $0.01 par value per share, of which 8,060,000 shares were issued
and outstanding as of December 29, 2006. Although the bankruptcy court permitted
the Company to amend its articles of incorporation to issue 1,000,000 shares of
preferred stock to a creditor, that amendment was not filed with the Secretary
of State of Texas, and the creditor has agreed to accept 100,000 shares of
Common Stock on a post-split basis in lieu of said preferred stock.
Common Stock
Voting Rights. The holders of our common stock have one vote per share and
are not entitled to vote cumulatively for the election of directors. Generally,
all matters to be voted on by stockholders must be approved by a majority or, in
the case of election of directors, by plurality of the votes cast at a meeting
at which a quorum is present and voting together as a single class, subject to
any voting rights granted to the holders of any then outstanding preferred
stock.
Dividends. Holders of common stock are entitled to receive any dividends
declared by our board of directors, subject to the preferential rights of any
preferred stock then outstanding. Dividends consisting of shares of common stock
may be paid to holders of shares of common stock.
Other Rights. Upon our liquidation, dissolution or winding up, the holders
of common stock are entitled preferential to share ratably in any assets
available for distribution to holders of shares of common stock. No holders of
shares are subject to redemption or have preemptive rights to purchase
additional shares of common stock.
3
Changes in Common Stock upon approval of the proposed restructuring. See
"Proposal No. 2". The number of shares of Common Stock authorized will be
increased from 15,000,000 to 150,000,000 shares and the par value of the Common
Stock will be changed to $0.001 per share.
Preferred Stock
Preferred Stock arising from bankruptcy proceeding. The bankruptcy court
permitted the Company to amend its Certificate of Incorporation to authorize the
issuance of 1,000,000 shares of Preferred Stock, although this amendment was
never filed with the Secretary of State of Texas. Those provisions provided for
a 6% non-cumulative dividend when and if declared and prohibited the Company
from paying any dividend on the Common Stock unless a 6% dividend was made to
the holders of the Preferred Stock. Those provisions prohibited that Preferred
Stock from having any voting rights or powers whatsoever and prevented
conversion into any other class of stock of the Company. It did provide that
upon any voluntary or involuntary liquidation or winding up of the Company, the
holders of said preferred stock were entitled to $0.20 per share, or an
aggregate of $200,000 prior to any distribution to any other class of stock.
Exchange of rights for Preferred Stock. On October 27, 2006, the creditor
entitled to receive said preferred stock agreed to forgo any right thereto upon
the issuance of 100,000 shares of the Company's Common Stock, said 100,000
shares to be upon a post-split basis.
New Preferred Stock. The proposed restructuring of our capital (See
"Proposal No. 3") would authorize the establishment of 2,000,000 shares of
preferred stock. This proposal would permit the board of directors, in its sole
discretion, to establish any series of preferred, so long as the total number of
shares did not exceed 2,000,000 shares, without the consent or other approval of
the Company's stockholders. Accordingly, the stockholders would not be able to
determine the voting, dividend, liquidation and redemption rights of any
additional preferred stock, matters that would be left in the sole discretion of
the board of directors. The board of directors has approved, upon the approval
of the Capital Restructuring summarized under the caption "Proposal No. 3" set
forth herein to establish a new series of preferred stock and issue a total of
525,000 shares.
Voting Rights of the Preferred to be Issued. The shares of preferred
stock, to be identified as Series A Preferred Stock, will be entitled to 50
votes for each share held and the holders of the Series A Preferred Stock are
entitled to vote on each matter to be voted on by the stockholders of the
Company.
Restrictions on Transfer of the Series A Preferred Stock. Holders of the
Series A Preferred Stock may not transfer any shares of Series A Preferred
Stock, whether by sale, assignment, exchange, gift, bequest, appointment or
otherwise, except to a permitted transferee, as defined, said permitted
transferee being one who holds the shares for estate planning purposes. If any
person other than the original holder and a permitted transferee of the Series A
Preferred Stock acquires, the Series A Preferred Stock automatically converts,
on a one for one basis, into Common Stock.
Automatic Conversion of the Series A Preferred Stock. Each share of Series
A Preferred Stock automatically converts into one share of Common Stock upon the
death of the original holder or upon the transfer of the shares to any person
other than for estate planning purposes.
Other provisions of the Series A Preferred Stock. The Series A Preferred
Stock may not be redeemed, participates ratably on a share for share basis in
any dividend paid on Common Stock and participates ratably with Common Stock on
a share for share basis in the event of any liquidation of the Company.
Shares Reserved for Issuance
The Company has not established any stock option plan although it
anticipates proposing one to the Company's shareholders at the Company's next
annual meeting. It anticipates reserving 100,000 shares to be issued pursuant to
warrants for Automotive Properties, LLC. See "Change of Control."
4
CHANGE OF CONTROL
On August 15, 2006, Steven L. Sample entered into an agreement with
Thacker Asset Management, LLC to acquire 4,000,000 shares of the Company's
Common Stock for $50,000 cash which represents 49.6% of the issued and
outstanding shares of the Company's Common Stock as of December 29, 2006. The
$50,000, as well as other expenses of the Company, expenses that were in excess
of $110,000 as of September 30, 2006, paid by Mr. Sample came from the personal
funds of Mr. Sample as well as a loan to Mr. Sample in the amount of $125,000
from Automotive Properties, LLC. Mr. Sample paid a total of $25,000 of the
Company's obligations to its former stock transfer agent and its bankruptcy
counsel for which the Company agreed to issue the 8,117,500 shares pf Common
Stock (post-split) and 500,000 shares of preferred upon the effectiveness of
Proposal No. 1. See "Proposal No. 1".
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, expenses that exceeded $110,000 as of
September 30, 2006. 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.
To reflect the new business purpose of the Company, the board of directors
has recommended that the Company's stockholders approve a resolution to amend
the Company's Restated Certificate of Incorporation that will change the name of
the Company to Acacia Automotive, Inc. The board of directors has also approved,
subject to approval by the Company's stockholders, an amendment to the Company's
Restated Certificate of Incorporation that will change the Company's capital
structure. This proposed amendment would (i) effect a one for eight reverse
stock split of our Common Stock; (ii) increase the number of authorized shares
of Common Stock to from 15,000,000 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.
While each part of the proposed amendment reorganizing the Company's
capital structure is to be voted on separately, this amendment will not be filed
unless all three parts are adopted. 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").
If the Proposed Amendments are approved by stockholders the Proposed
Amendments will be filed with the Secretary of State of the State of Texas,
subject to the right to abandon the amendments as permitted under Section
4.02a.(4) of the Texas Business Corporation Act.
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 spouse of Ms. Myers.
Because the Company lacks a sufficient number of shares of Common Stock
authorized, currently 15,000,000 shares, to meet the commitment to issue the
Common Stock or Preferred Stock to Mr. Sample, the Company's Chief Executive
Officer, Mr. Sample has a direct interest in having the number of shares of
Common Stock authorized increased to 150,000,000 and to the authorization of the
Preferred Stock which permits the directors to establish the Series described
herein. Similarly, the spouse of Ms. Myers will receive 450,000 shares of Common
Stock and 25,000 shares of Series A Preferred and said spouse has a direct
interest in the approval of the proposals described herein.
5
Assuming that the Capital Restructuring is approved, that is, the reverse
stock and that the shares of common and preferred stock are issued and
converted, there will be 150,000,000 common shares authorized and approximately
10,200,000 common shares outstanding. The Board of Directors will be authorized
to issue the remaining 139,800,000 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.
The purpose for each part of the amendments is described below.
PROPOSAL NO. 1
APPROVAL OF THAT PORTION OF THE PROPOSED AMENDMENT TO THE COMPANY'S
RESTATED CERTIFICATE OF INCORPORATION REORGANIZING THE CAPITAL STRUCTURE THAT
WILL EFFECT A ONE FOR EIGHT REVERSE STOCK SPLIT OF OUR COMMON STOCK.
The Amendment to the Restated 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.
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.
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.
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.
6
THE AFFIRMATIVE VOTE OF THE MAJORITY OF THE SHARES THAT ARE ISSUED AND
OUTSTANDING IS REQUIRED TO AMEND THE COMPANY'S RESTATED CERTIFICATE OF
INCORPORATION. THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THAT PORTION OF
THE CAPITAL RESTRUCTURING, PART OF WHICH WILL EFFECT A ONE FOR EIGHT REVERSE
STOCK SPLIT OF OUR COMMON STOCK. ALL PROXIES SOLICITED ON BEHALF OF THE COMPANY
BY THE BOARD OF DIRECTORS WILL BE VOTED IN ACCORDANCE WITH THE SPECIFICATIONS ON
THE FORM OF PROXY. WHERE NO SPECIFICATION IS MADE, PROXIES WILL BE VOTED "FOR"
PROPOSAL NO. 1.
PROPOSAL NO. 2
APPROVAL OF THAT PORTION OF THE PROPOSED AMENDMENT TO THE COMPANY'S
RESTATED CERTIFICATE OF INCORPORATION REORGANIZING THE CAPITAL STRUCTURE THAT
WILL INCREASE THE NUMBER OF AUTHORIZED SHARES TO FROM 15,000,000 TO 150,000,000,
CHANGING THE PAR VALUE OF THE COMMON STOCK FROM $0.01 PER SHARE TO $0.001 PER
SHARE.
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 paid for the Company. Accordingly, the Company seeks to
increase the number of authorized shares to 150,000,000. As an ancillary part of
this increase, the par value of the stock will be decreased from $0.01 per share
to $0.001 per share, a change that will reduce the minimum amount of
consideration that must be paid for a share from $0.01 per share to $0.001 per
share, a difference that the management of the Company does not believe to be
material.
THE AFFIRMATIVE VOTE OF THE MAJORITY OF THE SHARES THAT ARE ISSUED AND
OUTSTANDING IS REQUIRED TO AMEND THE COMPANY'S RESTATED CERTIFICATE OF
INCORPORATION. THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THAT PORTION OF
THE CAPITAL RESTRUCTURING WHICH WILL INCREASE THE NUMBER OF AUTHORIZED SHARES TO
FROM 15,000,000 TO 150,000,000, CHANGING THE PAR VALUE OF THE COMMON STOCK FROM
$0.01 PER SHARE TO $0.001 PER SHARE. ALL PROXIES SOLICITED ON BEHALF OF THE
COMPANY BY THE BOARD OF DIRECTORS WILL BE VOTED IN ACCORDANCE WITH THE
SPECIFICATIONS ON THE FORM OF PROXY. WHERE NO SPECIFICATION IS MADE, PROXIES
WILL BE VOTED "FOR" PROPOSAL NO. 2.
PROPOSAL NO. 3
APPROVAL OF THAT PORTION OF THE PROPOSED AMENDMENT TO THE COMPANY'S
RESTATED CERTIFICATE OF INCORPORATION REORGANIZING THE CAPITAL STRUCTURE THAT
WILL 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.
Presently, the Company may not issue any shares of preferred stock without
Company's stockholders authorization. This portion of the Capital Restructuring
would authorize the establishment of 2,000,000 shares of preferred stock. This
proposal would permit the board of directors, in its sole discretion, to
establish any series of preferred, so long as the total number of shares did not
exceed 2,000,000 shares, without the consent or other approval of the Company's
stockholders. Accordingly, the stockholders would not be able to determine the
voting, dividend, liquidation and redemption rights of any additional preferred
stock, matters that would be left in the sole discretion of the board of
directors.
7
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 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 and 25,000 shares to the spouse
of Ms. Myers. 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 35,924,000, or 97.2% 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.
A copy of the proposed designations of rights and preferences is attached
hereto.
THE AFFIRMATIVE VOTE OF THE MAJORITY OF THE SHARES THAT ARE ISSUED AND
OUTSTANDING IS REQUIRED TO AMEND THE COMPANY'S RESTATED CERTIFICATE OF
INCORPORATION. THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THAT PORTION OF
THE CAPITAL RESTRUCTURING WHICH WILL 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. ALL PROXIES SOLICITED ON BEHALF OF
THE COMPANY BY THE BOARD OF DIRECTORS WILL BE VOTED IN ACCORDANCE WITH THE
SPECIFICATIONS ON THE FORM OF PROXY. WHERE NO SPECIFICATION IS MADE, PROXIES
WILL BE VOTED "FOR" PROPOSAL NO. 3.
PROPOSAL NO. 4
APPROVAL OF AN AMENDMENT TO THE COMPANY'S RESTATED CERTIFICATE OF INCORPORATION
TO CHANGE THE COMPANY'S NAME TO ACACIA AUTOMOTIVE, INC.
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.
THE AFFIRMATIVE VOTE OF THE MAJORITY OF THE SHARES THAT ARE ISSUED AND
OUTSTANDING IS REQUIRED TO AMEND THE COMPANY'S RESTATED CERTIFICATE OF
INCORPORATION. THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE PROPOSAL TO
CHANGE THE COMPANY'S NAME TO ACACIA AUTOMOTIVE, INC. ALL PROXIES SOLICITED ON
8
BEHALF OF THE COMPANY BY THE BOARD OF DIRECTORS WILL BE VOTED IN ACCORDANCE WITH
THE SPECIFICATIONS ON THE FORM OF PROXY. WHERE NO SPECIFICATION IS MADE, PROXIES
WILL BE VOTED "FOR" PROPOSAL NO. 2.
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
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
OTHER MATTERS
The Company has not held an annual meeting of stockholders for several
years. It anticipates holding such meeting in the Spring of 2007. Any
stockholder desiring to submit a proposal for consideration at that meeting
should submit it at a time reasonably in advance of the Spring of 2007.
Certain information set forth in the Company's Form 10-K for the fiscal
year ended December 31, 2005, is set forth on the immediately following pages.
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.
January 17, 2007
By Order of the Board of Directors
9
Item 6. Management's Discussion and Analysis or Plan of Operations.
For each of the fiscal years ended December 31, 2003, 2004, and 2005, the
Company had no operations, income, expenses, assets or liabilities or other
activity. With the funding by Mr. Sample of the costs of completing the
Company's bankruptcy proceeding, which was completed in June 2006, Mr. Sample
commenced a plan to revive the Company by acquiring automobile auctions. This
plan required the funding by Mr. Sample of certain Company debts which, although
discharged in the bankruptcy proceeding, required payment to commence operating
as a public entity. Further, the revival of the Company as a public entity
required substantial expenditures for legal and accounting fees, among other
costs.
The implementation of Mr. Sample's plan required the reorganizing of the
Company's capital structure, a plan that is anticipated to be completed in the
early Winter of 2006, 2007. Simultaneously, it required the raising of
additional capital, a process which is anticipated to be completed in early
2007. With the additional capital, the Company will attempt to acquire
automobile auctions. The plan for an acquired auction or auctions will depend
upon the auction or auctions acquired. The Company will not hold any discussions
with any potential auction to be acquired until the Company has completed the
reorganizing of its capital structure. See Item 1. - Description of Business.
Without a successful raising of additional capital of at least $1,000,000, the
Company will not be able to commence operations
Item 8. Changes in and Disagreements With Accountants on Accounting and
Financial Disclosure.
None
ACACIA AUTOMOTIVE, INC.
(FORMERLY GIBBS CONSTRUCTION, INC.)
INDEX TO FINANCIAL STATEMENTS
Page
Report of Independent Registered Public Auditing Firm.........F-2
Balance Sheets, December 31, 2003, 2004 and 2005..............F-3
Statement of Stockholders' Equity for the Years Ended
December 31, 2003, 2004 and 2005.........................F-4
Notes to Financial Statements.................................F-5
Killman, Murrell & Company, P.C.
Certified Public Accountants
1931 E. 37th Street, Suite 7 3300 N. A Street, Bldg. 4, Suite 200 2626 Royal Circle
Odessa, Texas 79762 Midland, Texas 79705 Kingwood, Texas 77339
(432) 363-0067 (432) 686-9381 (281) 359-7224
Fax (432) 363-0376 Fax (432) 684-6722 Fax (281) 359-7112
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders
Acacia Automotive, Inc.
(formerly Gibbs Construction, Inc.)
Ocala, Florida
We have audited the accompanying balance sheets of Acacia Automotive, Inc. as of
December 31, 2005, 2004 and 2003 and the related statement of stockholders'
equity for the years then ended. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Acacia Automotive, Inc. as of
December 31, 2005, 2004 and 2003 in conformity with United States generally
accepted accounting principles.
As discussed in Note 3 to the financial statements, the Company has recently
emerged from bankruptcy and has had no operations for three years, has no assets
and does not have financial resources available for its use. The Company is not
a going concern. Management's plans in regard to these matters are described in
Note 3. The financial statements do not include any adjustments that might
result from the outcome of this uncertainty, if any.
/s/ Killman, Murrell & Company, P.C.
KILLMAN, MURRELL & COMPANY, P.C.
November 16, 2006
Odessa, Texas
F-2
ACACIA AUTOMOTIVE, INC.
(FORMERLY GIBBS CONSTRUCTION, INC.)
BALANCE SHEETS
December 31,
--------------------------------------------------------
2003 2004 2005
------------ ---------------- -------------
ASSETS
ASSETS $ - $ - $ -
============= =============== =============
LIABILITIES AND STOCKHOLDERS' EQUITY
LIABILITIES $ - $ - $ -
------------ --------------- -------------
STOCKHOLDERS' EQUITY:
Preferred Stock, no par value, 6%
non-cumulative dividend, 1,000,000
shares authorized; none issued and
outstanding. - - -
Preferred Stock, $0.001 par value 2,000,000
shares authorized; none issued and outstanding - - -
Common Stock, $0.001 par value, 150,000,000
shares authorized; 1,107,500 share issued and
outstanding 1,107 1,107 1,107
Paid-In-Capital 5,042,727 5,042,727 5,042,727
Retained Deficit (5,043,834) (5,043,834) (5,043,834)
-------------- --------------- --------------
Total Stockholders' Equity - - -
-------------- -------------- -------------
Total Liabilities and Stockholder's Equity $ - $ - $ -
============== ============== =============
The accompanying notes are an integral part of these
financial statements.
F-3
ACACIA AUTOMOTIVE, INC.
(FORMERLY GIBBS CONSTRUCTION, INC.)
STATEMENT OF STOCKHOLDERS' EQUITY
YEARS ENDED DECEMBER 31, 2003, 2004 AND 2005
Preferred Stock, Preferred Stock, Common
No Par Value $0.001 Par Value Common Stock Stock
-------------------- ---------------- ---------------- Paid-in Retained Subscription
Shares Amount Shares Amount Shares Par Value Capital Deficit Receivable Total
--------- --------- ------- ---- ---------- -------- ---------- ----------- -------- --------
Balance December 31, 2002 1,000,000 $ 200,000 - $ - 8,561,000 $ 85,610 $4,758,224 $(5,043,834)$ - $ -
2006 Restructuring transactions
Abandonment of Common
Shares held by Creditor Trust - - - - (501,000) (5,010) 5,010 - - -
Change in Par Value - - - - - (72,540) 72,540 - - -
Reverse Stock Split - - - - (7,052,500) (7,053) 7,053 - - -
Preferred Stock Exchange (1,000,000) (200,000) 100,000 100 199,900 - - -
---------- --------- ------- ---- ---------- -------- ---------- ----------- -------- --------
Restated Balance December 31,
2002, 2003, 2004 and 2005 - $ - - $ - 1,107,500 $ 1,107 $5,042,727 $(5,043,834)$ - $ -
========== ========= ======= ==== ========== ======== ========== =========== ========= =========
The accompanying notes are an integral part of these
financial statements.
F-4
ACACIA AUTOMOTIVE, INC.
(FORMERLY GIBBS CONSTRUCTION, INC.)
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 2003, 2004 AND 2005
NOTE 1: THE COMPANY
Gibbs Construction, Inc. ("Gibbs" or the "Company") was a full service, national
commercial construction company located in Garland, Texas. During 1999, Gibbs
experienced significant losses associated with certain construction projects,
which were bonded by Gibbs' primary bonding surety. In the fourth quarter of
1999, Gibbs' bonding surety notified Gibbs that it would no longer provide
completion and payment bonds for Gibbs' construction projects. Given these
events, Gibbs began a series of negotiations with its bonding surety in December
of 1999, which resulted in a written agreement in January of 2000, whereby the
bonding surety would provide funds to finish certain projects and required Gibbs
to terminate construction on other projects. These events led to Gibbs inability
to satisfy its debts in the ordinary course of business and on April 20, 2000,
Gibbs filed a Petition pursuant to Chapter 11 of the United States Bankruptcy
Code.
On July 28, 2000, Gibbs received permission from its Court of Jurisdiction to
solicit approval of its Plan of Reorganization. Gibbs continued to operate on a
limited basis pending approval of its Plan of Reorganization. On November 10,
2000, Gibbs completed its Plan of Reorganization pursuant to an order of the
court as follows:
a) Gibbs transferred all of its assets and liabilities to the Gibbs
Construction, Inc. Creditor Trust ("Trust").
b) Gibbs issued 501,000 shares of its authorized but previously unissued
common stock to the Trust in settlement of unsecured creditor claims.
c) Gibbs approved issuance of 1,000,000 shares of a newly created
preferred stock, with an aggregate liquidation preference value of
$200,000 and a six percent (6%) non-cumulative dividend, to the bonding
surety.
d) Gibbs issued 4,000,000 shares of its authorized but previously unissued
common stock to Thacker Asset Management, LLC (TAM), a Texas limited
liability company, in exchange for certain operating assets and the
obligation to complete certain construction projects of TAM.
Gibbs did not obtain a court ordered final decree from the bankruptcy court due
to the difficulties encountered with the implementation of the re-organization
plan. All operating activities ceased in 2002. On June 26, 2006, the bankruptcy
trustee requested and received a Order for Final Decree. The 501,000 shares of
common stock issued to the Trust were abandoned and returned to the Company on
October 5, 2006. These shares have been cancelled.
On July 25, 2006, the Board of Directors of the Company met and approved the
following actions:
o Changed the Company's name to Acacia Automotive, Inc.
o Authorized 2,000,000 shares of $0.001 par value preferred stock and
authorized the Board of Directors to:
a.) set the number of shares constituting each series of preferred
stock
b.) establish voting rights, powers, preferences and conversion rights
o Increased the authorized number of common shares to 150,000,000 and
decreased the par value to $0.001.
ACACIA AUTOMOTIVE, INC.
(FORMERLY GIBBS CONSTRUCTION, INC.)
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 2003, 2004 AND 2005
NOTE 1: THE COMPANY (Continued)
o Authorized a one-for-eight reverse stock split of the Company's common
stock.
o Designated 525,000 shares of preferred stock as Series A Preferred
Stock, with the following rights:
a.) Dividends can be paid when declared by the Board of Directors but
must be also simultaneously declared on the common stock.
b.) Series A Preferred Stock may not be redeemed.
c.) Each share of Series A Preferred Stock is convertible into one
share of common stock at the option of the holders.
d.) The holders of Series A Preferred Shares are certified to 50 votes
on all matters to be voted on by the shareholders of the Company for
each share of Series A Preferred Stock held.
o Authorized the issuance of common stock and Series A Preferred Stock
for services rendered and payments of organization expenses on behalf
of the Company:
a.) 8,567,500 shares of common stock.
b.) 525,000 shares of Series A Preferred Stock.
c.) Estimated issuance value is $172,350.
Certain of the actions approved by the Board of Directors on July 25, 2006,
require the approval of the shareholders of the Company; however, since the
Company's management has sufficient common stock ownership to assure approval of
the actions taken, the various authorized stock transactions have been reflected
in the accompanying financial statements.
NOTE 2: STOCKHOLDERS' EQUITY
Preferred Stock
In 2000, the bankruptcy court authorized the issuance of 1,000,000 shares of no
par value preferred stock to the Company's bonding surety. These preferred
shares have a liquidation preference value of $0.20 per share and have a six
percent (6%) non-cumulative dividend rate. On October 27, 2006, the bonding
surety agreed to exchange the 1,000,000 shares of no par value preferred stock
for 100,000 shares of the Company's $0.001 par value common stock.
In July 2006 the Company's Board of Directors authorized a 2,000,000 share
series of preferred stock and the Board of Directors were authorized to fix:
o The number of shares constituting each series of preferred stock
o Voting rights, powers, preferences and conversion rights
None of these preferred shares were outstanding at December 31, 2003, 2004 and
2005.
ACACIA AUTOMOTIVE, INC.
(FORMERLY GIBBS CONSTRUCTION, INC.)
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 2003, 2004 AND 2005
NOTE 2: STOCKHOLDERS' EQUITY - (Continued)
Common Stock
Prior to July 25, 2006, the Company had authorized 15,000,000 shares of $0.01
par value common stock and 8,561,000 common shares outstanding. On July 25,
2006, the Company's Board of Directors approved the following actions which have
been retroactively reflected in the Statement of Stockholders' Equity.
o Abandonment of 501,000 shares of common stock issued to the creditor
trust, on October 5, 2006.
o Change in par value for $0.01 to $0.001.
o One (1) for eight (8) reverse stock split.
Retained Deficit
The Company ceased all operations in 2002 and since that time there has been no
operating results.
NOTE 3: GOING CONCERN
On June 26, 2006, the Bankruptcy Court for the Northern District of Texas,
issued its Order for Final Decree related to the Company bankruptcy petition
filed April 20, 2000. The Board of Directors convened its first post bankruptcy
meeting on July 25, 2006, and assumed operating control. On August 15, 2006, the
Company entered into a "Stock Purchase and Subscription Agreement" whereby the
effective control of the Company was transferred to Steven L. Sample, an
individual residing in the State of Florida. Mr. Sample and his assignees
purchased 5,500,000 pre-split shares for an aggregate purchase price of $65,000
plus at least $20,000 to discharge any obligations of the Company and agreed to
provide the capital such that the Company can arrange to have its filings with
the United States Securities and Exchange Commission brought current.
The Company issued 8,567,500 shares of its post reverse split $0.001 par value
common stock and 525,000 shares of its Series A Preferred Stock for services
rendered and expenses paid (estimated total value $172,350).
None of the above described transactions provided the Company with operating
funds.
On September 11, 2006, the Company issued a private placement memorandum for the
sale of 8,000,000 shares of the Company's common stock at $2.00 per share.
Without a successful raising of at least $1,000,000, the Company will not be
able to commence operations.
EXHIBIT A - RESOLUTIONS AMENDMENDING ARTICLES OF INCORPORATION TO CHANGE THE
COMPANY'S CAPITAL STRUCTURE
PROPOSAL NO. 1, 2, and 3
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 - RESOLUTIONS AMENDMENTING ARTICLES OF INCORPORATION
PROPOSAL NO. 4
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.
EXHIBIT C - 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
February 1, 2007
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 Thursday, February 1,
2007, 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
EFFECT A ONE FOR EIGHT REVERSE STOCK SPLIT OF OUR COMMON STOCK;
FOR / / AGAINST / / ABSTAIN / /
2. PROPOSAL TO AMEND THE COMPANY'S RESTATED CERTIFICATE OF INCORPORATION TO
INCREASE THE NUMBER OF AUTHORIZED SHARES TO 150,000,000,
CHANGING THE PAR VALUE FROM $0.01 PER SHARE TO $0.001 PER SHARE;
FOR / / AGAINST / / ABSTAIN / /
3. PROPOSAL TO AMEND THE COMPANY'S RESTATED CERTIFICATE OF INCORPORATION TO
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.
FOR / / AGAINST / / ABSTAIN / /
4. PROPOSAL TO AMEND THE COMPANY'S RESTATED CERTIFICATE OF INCORPORATION TO
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 PROPOSALS 1, 2, 3 and 4.
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.