UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported) January 3, 2013
| INNOTRAC CORPORATION |
| (Exact Name of Registrant as Specified in Charter) |
| Georgia |
| (State or Other Jurisdiction of Incorporation) |
| 000-23741 | 58-1592285 |
| (Commission File Number) | (IRS Employer Identification No.) |
|
6465 East Johns Crossing Johns Creek, GA |
30097 |
| (Address of Principal Executive Offices) | (Zip Code) |
| (678) 584-4000 |
| (Registrant’s Telephone Number, Including Area Code) |
|
|
| (Former Name or Former Address, if Changed Since Last Report) |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| ITEM 1.01 | ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT |
The information set forth in Item 2.03 of this Current Report on Form 8-K is incorporated herein by reference.
| ITEM 2.01 | COMPLETION OF ACQUISITION OR DISPOSITION OF ASSETS |
On January 6, 2014, Innotrac Corporation, a Georgia corporation (the “Company”), Blue Eagle Acquisition Sub, Inc., a Georgia corporation (“Purchaser”) and a wholly-owned subsidiary of Blue Eagle Holdings L.P., a Delaware limited partnership (“Parent”), and Parent announced the expiration of the offer by Purchaser to purchase (the “Offer”) all of the outstanding shares of common stock, par value $0.10 per share (the “Shares”), of the Company, at a purchase price of $8.20 per Share, in cash, less withholding taxes and without interest (such price per Share, the “Offer Price”), upon the terms and subject to the conditions set forth in the Offer to Purchase, dated December 4, 2013 (as amended or supplemented from time to time, the “Offer to Purchase”), and in the related Letter of Transmittal. The Offer expired at 6:00 p.m., New York City time, on January 3, 2014. Broadridge Corporate Issuer Solutions, Inc., the depositary for the Offer, advised the Purchaser that 6,149,923 Shares were validly tendered in the Offer (excluding Shares tendered by notices of guaranteed delivery), representing approximately 46.4% of the issued and outstanding Shares, with an additional 22,900 Shares tendered by notice of guaranteed delivery. Parent has announced that all Shares that were validly tendered and not properly withdrawn have been accepted for purchase, and will be promptly paid for by Purchaser, in accordance with the terms of the Offer. Shares validly tendered in satisfaction of guaranteed delivery procedures will also be accepted for payment and promptly paid for in accordance with the terms of the Offer. An additional 5,839,462 Shares, representing approximately 44.1% of the total Shares outstanding, owned by Mr. Scott D. Dorfman, the Company’s founder, Chairman, President and Chief Executive Officer, and certain related shareholders were contributed to Parent pursuant to a Contribution and Support Agreement in exchange for 47,883.59 preferred limited partnership units of Parent. As previously disclosed, the Offer was made pursuant to an Agreement and Plan of Merger, dated as of November 14, 2013 (the “Merger Agreement”), by and among the Company, Parent and Purchaser.
As a result of the purchase of Shares in the Offer and the contribution of Shares by Mr. Dorfman and certain related shareholders to Parent pursuant to the Contribution and Support Agreement with Parent, immediately followed by the contribution of such Shares by Parent to Purchaser (collectively, the “Contribution”), Purchaser held greater than 90% of the outstanding Shares. On January 6, 2014, Purchaser, without calling a meeting of the Company’s shareholders, effected a merger in accordance with the “short-form” merger provisions available under Georgia law, whereby Purchaser was merged with and into the Company, with the Company surviving the merger as a wholly-owned subsidiary of Parent (the “Merger”). In the Merger, each Share not previously purchased in the Offer (other than Shares held by shareholders who properly demand and perfect dissenters’ rights under the Georgia Business Corporation Code and Shares directly or indirectly held by the Company, Parent or Purchaser) was converted into the right to receive the Offer Price per Share in cash.
The total amount of consideration payable in the Offer and the Merger is approximately $56.2 million. In addition, Parent issued to Mr. Dorfman and certain related shareholders 47,883.59 preferred limited partnership units in Parent in exchange for the Shares contributed by them to Parent in the Contribution, and Mr. Dorfman and such related shareholders sold 32,883.62 of those preferred limited partnership units in Parent to affiliates of Sterling Partners in exchange for a total of approximately $32.9 million. Parent and the Purchaser will fund the acquisition with a combination of debt financing, using funds borrowed under the Credit Agreement (defined below) entered into in connection with the Offer and the Merger, and equity financing.
On January 6, 2014, the Company, Parent and Purchaser issued two press releases: (1) a press release announcing the expiration and Purchaser’s completion of the Offer pursuant to the Offer to Purchase, and (2) a press release announcing the completion of the Merger pursuant to the Merger Agreement. These press releases are attached hereto as Exhibit 99.1 and Exhibit 99.2, respectively, and incorporated herein by reference.
| ITEM 2.03 | CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION UNDER AN OFF-BALANCE SHEET ARRANGEMENT OF A REGISTRANT |
On January 6, 2014, Purchaser entered into a Credit Agreement with Regions Bank, as lender, administrative agent and collateral agent, and Fifth Third Bank, as lender and syndication agent (the “Credit Agreement”), and the Company became party to the Credit Agreement upon the consummation of the Merger, as the surviving corporation of the Merger. The Credit Agreement provides for a revolving credit facility in the amount of up to $15 million and a term loan in the amount of up to $38.5 million, each with a maturity date of January 6, 2019. The interest rate on borrowings under the Credit Agreement is variable, and the Company can make borrowings with interest rates equal to the base rate (defined in the Credit Agreement) or an adjusted LIBOR rate. The Credit Agreement contains customary reporting obligations and typical affirmative and negative covenants regarding the operation of the Company’s business. The Credit Agreement also contains customary default provisions, including cross-default provisions. Pursuant to such provisions, upon the occurrence of an event of default, the lenders may terminate their loan commitments, accelerate all loans and exercise any of their rights under the Credit Agreement as secured parties.
| ITEM 3.01 | NOTICE OF DELISTING OR FAILURE TO SATISFY A CONTINUED LISTING RULE OR STANDARD; TRANSFER OF LISTING |
In connection with the closing of the Merger, NASDAQ filed a notification of removal from listing on Form 25 with the Securities and Exchange Commission (the “SEC”) with respect to the Shares and suspended trading of the Shares on NASDAQ at market close on January 6, 2014. The Company intends to file a Form 15 with the SEC to effect the termination of registration of the Shares under Section 12(g) of the Securities Exchange Act of 1934, as amended.
| ITEM 3.03 | MATERIAL MODIFICATION TO RIGHTS OF SECURITY HOLDERS |
In the Merger, each Share not previously purchased in the Offer (other than Shares held by shareholders who properly demand and perfect dissenters’ rights under the Georgia Business Corporation Code and Shares directly or indirectly held by the Company, Parent or Purchaser) was converted into the right to receive a price per Share equal to the Offer Price. At the effective time of the Merger and subject to dissenters’ rights under Georgia law, the Company’s shareholders immediately prior to the effective time of the Merger ceased to have any rights as shareholders in the Company (other than their rights to receive the Offer Price) and, accordingly, no longer have any interest in the Company’s future earnings and growth.
The information set forth in Item 2.01 and 5.03 of this Current Report on Form 8-K is incorporated herein by reference.
| ITEM 5.01 | CHANGES IN CONTROL OF REGISTRANT |
The information set forth in Item 2.01 and Item 5.02 of this Current Report on Form 8-K is incorporated herein by reference.
| ITEM 5.02 | DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS |
As of the effective time of the Merger on January 6, 2014, in connection with the transactions contemplated by the Merger Agreement, the following directors resigned from the Company’s board of directors: Tom Marano, Bruce Benator, James Childs and Joel Marks.
As of the effective time of the Merger on January 6, 2014, pursuant to the Merger Agreement, the following individuals became members of the Company’s board of directors: Todd Miller and Merrick Elfman.
| ITEM 5.03 | AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL YEAR |
Pursuant to the Merger Agreement, at the effective time of the Merger, the articles of incorporation of the Company, as the surviving corporation of the Merger, were amended and restated. A copy of the amended and restated certificate of incorporation of the Company is filed as Exhibit 3.1 hereto and is incorporated herein by reference.
Pursuant to the Merger Agreement, at the effective time of the Merger, the bylaws of the Company, as the surviving corporation of the Merger, were amended and restated to be identical to the bylaws of Purchaser, as in effect immediately prior to the effective time of the Merger, except that the name of Purchaser was changed to “Innotrac Corporation.” A copy of the amended and restated bylaws of the Company is filed as Exhibit 3.2 hereto and is incorporated herein by reference.
| ITEM 9.01 | FINANCIAL STATEMENTS AND EXHIBITS |
| (d) | Exhibits. |
| Exhibit No. |
Description | |
| 2.1 | Agreement and Plan of Merger dated November 14, 2013 among Blue Eagle Holdings, L.P., Blue Eagle Acquisition Sub, Inc. and Innotrac Corporation (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K of Innotrac Corporation filed on November 15, 2013). | |
| 3.1 | Amended and Restated Articles of Incorporation of Innotrac Corporation dated January 6, 2014. | |
| 3.2 | Amended and Restated Bylaws of Innotrac Corporation dated January 6, 2014. |
| 99.1 | Press Release dated January 6, 2014 issued by Innotrac Corporation, Parent and Purchaser (incorporated by reference to Exhibit (A)(5)(a) to the Amendment No. 4 to Schedule TO filed on January 6, 2014). | |
| 99.2 | Press Release dated January 6, 2014 issued by Innotrac Corporation, Parent and Purchaser. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| INNOTRAC CORPORATION | ||
| /s/ Scott D. Dorfman | ||
| Date: January 6, 2014 |
Scott D. Dorfman Chief Executive Officer |
Exhibit 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF INNOTRAC CORPORATION
Article 1.
The name of the corporation is Innotrac Corporation.
Article 2.
The corporation is organized pursuant to the provisions of the Georgia Business Corporation Code.
Article 3.
The duration of the corporation shall be perpetual.
Article 4.
The corporation is organized for profit and is organized for the purpose of engaging in any lawful business. The corporation shall have all of the general powers granted to corporations organized under the Georgia Business Corporation Code, whether granted by specific statutory authority or by construction of law.
Article 5.
The corporation is authorized to issue One Thousand (1,000) shares with a par value $0.10 per share.
Article 6.
The street address of the registered office is 40 Technology Pkwy South, #300, Norcross, Georgia 30092, in Gwinnett County. The registered agent at such address is Corporation Service Company.
Article 7.
The principal mailing address of the corporation is 401 N. Michigan Avenue, Suite 3300, Chicago, Illinois 60611.
Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
OF
INNOTRAC CORPORATION
A Georgia Corporation
(as amended January 6, 2014)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of Innotrac Corporation, a Georgia corporation (the “Corporation”) in the State of Georgia is 40 Technology Parkway, #300, City of Norcross, County of Gwinnett, Georgia 30092. The name of the Corporation’s registered agent at such address is Corporation Service Company. The registered office and/or registered agent of the Corporation may be changed from time to time by action of the board of directors.
Section 2. Other Offices. The Corporation may also have offices at such other places, both within and without the State of Georgia, as the board of directors may from time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place and Time of Meetings. An annual meeting of the holders of the shares of the Corporation’s common stock, par value $0.10 (the “Common Stock” and the holders of such Common Stock, the “Stockholders”) shall be held each year within one hundred twenty (120) days after the close of the immediately preceding fiscal year of the Corporation for the purpose of electing directors and conducting such other proper business as may come before the meeting. The date, time and place of the annual meeting shall be determined by the president of the Corporation; provided, that if the president does not act, the board of directors shall determine the date, time and place of such meeting.
Section 2. Special Meetings. Special meetings of Stockholders may be called for any purpose and may be held at such time and place, within or without the State of Georgia, as shall be stated in a notice of meeting or in a duly executed waiver of notice thereof. Such meetings may be called at any time by the chairperson or president and shall be called by the chairperson or president only upon the written request of (i) at least a majority of the directors of the Corporation, or (ii) holders of shares entitled to cast not less than a majority of the votes at the meeting, such written request shall state the purpose or purposes of the meeting and shall be delivered to the president.
Section 3. Place of Meetings. The board of directors may designate any place, either within or without the State of Georgia, as the place of meeting for any annual meeting or for any
special meeting called by the board of directors. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal executive office of the Corporation.
Section 4. Notice. Whenever Stockholders are required or permitted to take action at a meeting, written or printed notice stating the place, date, time, and, in the case of special meetings, the purpose or purposes, of such meeting, shall be given to each Stockholder entitled to vote at such meeting not less than ten (10) nor more than sixty (60) days before the date of the meeting. All such notices shall be delivered, either personally or by mail, by or at the direction of the board of directors, the president or the secretary, and if mailed, such notice shall be deemed to be delivered when deposited in the United States mail, postage prepaid, addressed to the Stockholder at his, her or its address as the same appears on the records of the Corporation. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened.
Section 5. Stockholders List. The officer having charge of the stock ledger of the Corporation shall make, at least ten (10) days before every meeting of the Stockholders, a complete list of the Stockholders entitled to vote at such meeting arranged in alphabetical order, showing the address of each Stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any Stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any Stockholder who is present.
Section 6. Quorum. The holders of a majority of the outstanding shares of Common Stock, present in person or represented by proxy, shall constitute a quorum at all meetings of the Stockholders, except as otherwise provided by statute or by the Articles of Incorporation (as amended from time to time, the “Articles of Incorporation”). If a quorum is not present, the holders of a majority of the shares of Common Stock present in person or represented by proxy at the meeting, and entitled to vote at the meeting, may adjourn the meeting to another time and/or place.
Section 7. Adjourned Meetings. When a meeting is adjourned to another time and place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than one hundred twenty (120) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
Section 8. Vote Required. Except as otherwise provided in the Articles of Incorporation, when a quorum is present, the affirmative vote of the majority of shares of Common Stock present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the Stockholders, unless the question is one upon which by
| 2 |
express provisions of an applicable law or of the Articles of Incorporation a different vote is required, in which case such express provision shall govern and control the decision of such question.
Section 9. Voting Rights. Except as otherwise provided by the Georgia Business Corporation Code of the State of Georgia or by the Articles of Incorporation of the Corporation or any amendments thereto and subject to Section 3 of Article VI hereof, at every meeting of the Stockholders, every Common Stockholder shall be entitled to one (1) vote in person or by proxy for each share of Common Stock held thereby.
Section 10. Proxies. Each Stockholder entitled to vote at a meeting of Stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for him or her by proxy, but no such proxy shall be voted or acted upon after eleven (11) months from its date, unless the proxy provides for a longer period. To be valid, the proxy must be received by the inspector of election or the officer or agent of the Corporation authorized to tabulate votes. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the Corporation generally. Any proxy is suspended when the person executing the proxy is present at a meeting of Stockholders and elects to vote, except that when such proxy is coupled with an interest and the fact of the interest appears on the face of the proxy, the agent named in the proxy shall have all voting and other rights referred to in the proxy, notwithstanding the presence of the person executing the proxy. At each meeting of the Stockholders, and before any voting commences, all proxies filed at or before the meeting shall be submitted to and examined by the secretary or a person designated by the secretary, and no shares may be represented or voted under a proxy that has been found to be invalid or irregular.
Section 11. Action by Written Consent. Unless otherwise provided in the Articles of Incorporation, any action required to be taken at any annual or special meeting of Stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such Stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken and bearing the dates of signature of the Stockholders who signed the consent or consents, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in the state of Georgia, or the Corporation’s principal place of business, or an officer or agent of the Corporation having custody of the book or books in which proceedings of meetings of the Stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested provided, however, that no consent or consents delivered by certified or registered mail shall be deemed delivered until such consent or consents are actually received at the registered office. All consents properly delivered in accordance with this section shall be deemed to be recorded when so delivered. No written consent shall be effective to take the corporate action referred to therein unless, within sixty (60) days of the earliest dated consent delivered to the Corporation as required by this section, written consents signed by the holders of a sufficient number of shares to take such corporate action are
| 3 |
so recorded. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those Stockholders who have not consented in writing. Any action taken pursuant to such written consent or consents of the Stockholders shall have the same force and effect as if taken by the Stockholders at a meeting thereof.
ARTICLE III
DIRECTORS
Section 1. General Powers. The business and affairs of the Corporation shall be managed by or under the direction of the board of directors.
Section 2. Number, Election and Term of Office. Directors shall be elected the annual meeting of the Stockholders and will consist of not less than three (3) directors, nor more than eleven (11) directors, as determined by the Stockholders. Each director shall serve until the next annual meeting of the Stockholders following his or her election or until his or her successor is elected and qualified.
Section 3. Removal and Resignation. A director, whether elected by the Stockholders or directors, may be removed from office with or without cause at any annual or a special meeting of Stockholders called for that purpose by vote of the Stockholders owning stock of the Corporation having a majority of the voting power of the stock entitled to vote in the election of such directors. Any director may resign at any time upon written notice to the Corporation.
Section 4. Vacancies. Any vacancy in the board of directors, however occurring, including a vacancy resulting from the enlargement of the board of directors, may be filled by the Stockholders or by the directors then in office or by a sole remaining director. Each director so chosen shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as herein provided.
Section 5. Annual Meetings. The annual meeting of each newly elected board of directors shall be held without other notice than this by-law immediately after, and at the same place as, the annual meeting of Stockholders.
Section 6. Other Meetings and Notice. Regular meetings, other than the annual meeting, of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by resolution of the board. Special meetings of the board of directors may be called by or at the request of the president on at least twenty-four (24) hours notice to each director, either personally, by telephone, by overnight courier, or by facsimile.
Section 7. Quorum, Required Vote and Adjournment. A majority of the total number of directors shall constitute a quorum for the transaction of business. The vote of a majority of directors present at a meeting at which a quorum is present shall be the act of the board of directors. If a quorum shall not be present at any meeting of the board of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
| 4 |
Section 8. Committees. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation, which to the extent provided in such resolution or these by-laws shall have and may exercise the powers of the board of directors in the management and affairs of the Corporation except as otherwise limited by law. The board of directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required.
Section 9. Communications Equipment. Members of the board of directors or any committee thereof may participate in and act at any meeting of such board or committee through the use of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in the meeting pursuant to this section shall constitute presence in person at the meeting.
Section 10. Waiver of Notice and Presumption of Assent. Any member of the board of directors or any committee thereof who is present at a meeting shall be conclusively presumed to have waived notice of such meeting except when such member attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Such member shall be conclusively presumed to have assented to any action taken unless his or her dissent shall be entered in the minutes of the meeting or unless his or her written dissent to such action shall be filed with the person acting as the secretary of the meeting before the adjournment thereof or shall be forwarded by registered mail to the secretary of the Corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to any member who voted in favor of such action.
Section 11. Action by Written Consent. Unless otherwise restricted by the Articles of Incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors, or of any committee thereof, may be taken without a meeting if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the Corporation shall be elected by the board of directors and shall consist of a president, chief executive officer, chief financial officer, one or more vice-presidents, secretary, a treasurer, and such other officers and assistant officers as may be deemed necessary or desirable by the board of directors. Any number of offices may be held by the same person. In its discretion, the board of directors may choose not to fill any office for any period as it may deem advisable.
Section 2. Election and Term of Office. The officers of the Corporation shall be elected annually by the board of directors at its first meeting held after each annual meeting of Stockholders or as soon thereafter as conveniently may be. The president shall be elected
| 5 |
annually by the board of directors at the first meeting of the board of directors held after each annual meeting of Stockholders or as soon thereafter as conveniently may be. The president shall appoint other officers to serve for such terms as he or she deems desirable. Vacancies may be filled or new offices created and filled at any meeting of the board of directors. Each officer shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.
Section 3. Removal. Any officer or agent elected by the board of directors may be removed by the board of directors whenever in its judgment the best interests of the Corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed.
Section 4. Vacancies. Any vacancy occurring in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the board of directors for the unexpired portion of the term by the board of directors then in office.
Section 5. Compensation. Compensation of all officers shall be fixed by the board of directors.
Section 6. Chairman of the Board. The chairman of the board shall have the powers and perform the duties incident to that position. Subject to the powers of the board of directors, he shall be in the general and active charge of the entire business and affairs of the Corporation. He shall preside at all meetings of the board of directors and Stockholders and shall have such other powers and perform such other duties as may be prescribed by the board of directors or provided in these by-laws. Whenever the president is unable to serve, by reason of sickness, absence or otherwise, the chairman of the board shall perform all the duties and responsibilities and exercise all the powers of the president.
Section 7. The President. The president shall be the chief executive officer of the Corporation; shall preside at all meetings of the Stockholders and board of directors at which he is present; subject to the powers of the board of directors, shall have general charge of the business, affairs and property of the Corporation, and control over its officers, agents and employees; and shall see that all orders and resolutions of the board of directors are carried into effect. The president shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the Corporation. The president shall have such other powers and perform such other duties as may be prescribed by the board of directors or as may be provided in these by-laws.
Section 8. Chief Financial Officer. The chief financial officer of the Corporation shall, under the direction of the chief executive officer, be responsible for all financial and accounting matters and for the direction of the offices of treasurer and controller. The chief financial officer shall have such other powers and perform such other duties as may be prescribed by the chairman of the board, the chief executive officer or the board of directors or as may be provided in these by-laws.
| 6 |
Section 9. Vice-Presidents. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors or by the president, shall, in the absence or disability of the president, act with all of the powers and be subject to all the restrictions of the president. The vice-presidents shall also perform such other duties and have such other powers as the board of directors, the president or these by-laws may, from time to time, prescribe.
Section 10. The Secretary and Assistant Secretaries. The secretary shall attend all meetings of the board of directors, all meetings of the committees thereof and all meetings of the Stockholders and record all the proceedings of the meetings in a book or books to be kept for that purpose. Under the president’s supervision, the secretary shall give, or cause to be given, all notices required to be given by these by-laws or by law; shall have such powers and perform such duties as the board of directors, the president or these by-laws may, from time to time, prescribe; and shall have custody of the corporate seal of the Corporation. The secretary, or an assistant secretary, shall have authority to affix the corporate seal to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his signature. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors, the president, or secretary may, from time to time, prescribe.
Section 11. The Treasurer and Assistant Treasurer. The treasurer shall, subject to the authority of the chief financial officer, have the custody of the corporate funds and securities; shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation; shall deposit all monies and other valuable effects in the name and to the credit of the Corporation as may be ordered by the board of directors; shall cause the funds of the Corporation to be disbursed when such disbursements have been duly authorized, taking proper vouchers for such disbursements; and shall render to the president, chief financial officer and the board of directors, at its regular meeting or when the board of directors so requires, an account of the Corporation; shall have such powers and perform such duties as board of directors, the president, the chief financial officer or these by-laws may, from time to time, prescribe. If required by the board of directors, the treasurer shall give the Corporation a bond (which shall be rendered every six (6) years) in such sums and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of the office of treasurer and for the restoration to the Corporation, in case of death, resignation, retirement, or removal from office, of all books, papers, vouchers, money, and other property of whatever kind in the possession or under the control of the treasurer belonging to the Corporation. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall in the absence or disability of the chief financial officer, treasurer, perform the duties and exercise the powers of the treasurer. The assistant treasurers shall perform such other duties and have such other powers as the board of directors, the president, the chief financial officer or treasurer may, from time to time, prescribe.
Section 12. Other Officers, Assistant Officers and Agents. Officers, assistant officers and agents, if any, other than those whose duties are provided for in these by-laws, shall have
| 7 |
such authority and perform such duties as may from time to time be prescribed by resolution of the board of directors.
Section 13. Absence or Disability of Officers. In the case of the absence or disability of any officer of the Corporation and of any person hereby authorized to act in such officer’s place during such officer’s absence or disability, the board of directors may by resolution delegate the powers and duties of such officer to any other officer or to any director, or to any other person whom it may select.
ARTICLE V
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
Section 1. Indemnification of Directors and Officers. Each person who is or was a director or officer of the Corporation, or who, at the request of the Corporation, is serving or has served as an officer, director, partner, joint venturer or director of another corporation, partnership, joint venture, trust or other enterprise, shall be indemnified by the Corporation, and shall be entitled to advancement of expenses of litigation, to the fullest extent permitted under Georgia law against any expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement which are allowed to be paid, reimbursed or advanced by the Corporation under Georgia law and which are actually and reasonable incurred in connection with any action, suit or proceedings, pending or threatened, whether civil, criminal, administrative or investigative, in which such person may be involved by reason of his or her being or having been a directors or officer of this Corporation or of such other enterprise. Indemnification shall be made in accordance with Georgia law and subject to the conditions thereof. As a condition to any right of indemnification, the Corporation may require that it be permitted to participate in the defense of any such action or proceedings through legal counsel designated by the Corporation and at the expense of the Corporation.
Section 2. Procedure for Indemnification of Directors and Officers. Any indemnification of a director or officer of the Corporation under Section 1 of this Article V or advance of expenses under Section 5 of this Article V shall be made promptly, and in any event within thirty (30) days, upon the written request of the director or office. If a determination by the Corporation that the director or officer is entitled to indemnification pursuant to this Article V is required, and the Corporation fails to respond within sixty (60) days to a written request for indemnity, the Corporation shall be deemed to have approved the request. If the Corporation denies a written request for indemnification or advancing of expenses, in whole or in part, or if payment in full pursuant to such request is not made within thirty (30) days, the right to indemnification or advances as granted by this Article V shall be enforceable by the director or officer in any court of competent jurisdiction. Such person’s costs and expenses incurred in connection with successfully establishing his right to indemnification, in whole or in part, in any such action shall also be indemnified by the Corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any, has been tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible under the Georgia Business Corporation Code of the State of Georgia for the Corporation to indemnify the claimant for the amount claimed, but the burden of such defense shall be on the Corporation. Neither the failure of the Corporation (including its board of directors, independent legal counsel, or its Stockholders) to have made a determination prior to
| 8 |
the commencement of such action that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct set forth in the Georgia Business Corporation Code of the State of Georgia, nor an actual determination by the Corporation (including its board of directors, independent legal counsel, or its Stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
Section 3. Article Not Exclusive. The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article V shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Articles of Incorporation, by-law, agreement, vote of Stockholders or disinterested directors or otherwise.
Section 4. Insurance. The Corporation may purchase and maintain insurance on behalf of any persons described in Section 1 of Article V hereof, whether or not the Corporation would have the power to indemnify such person against any liability under Georgia law. If any expenses or other amounts are paid by way of indemnification other than by court order or by an insurance carrier, the Corporation shall provide notice of such payment to the members of the board of directors in accordance with these by-laws.
Section 5. Contract Rights. The provisions of this Article V shall be deemed to be a contract right between the Corporation and each director or officer who serves in any such capacity at any time while this Article V and the relevant provisions of the Georgia Business Corporation Code of the State of Georgia or other applicable law are in effect, and any repeal or modification of this Article V or any such law shall not affect any rights or obligations then existing with respect to any state of facts or proceeding then existing.
Section 6. Expenses. Expenses incurred by any person described in Section 1 of this Article V in defending a proceeding shall be paid by the Corporation in advance of such proceeding’s final disposition upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Corporation. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the board of directors deems appropriate.
Section 7. Merger or Consolidation. For purposes of this Article V, references to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Article V with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued.
| 9 |
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Form. Every holder of stock in the Corporation shall be entitled to have a certificate, signed by, or in the name of the Corporation by the president or a vice-president and the secretary or an assistant secretary of the Corporation, certifying the number of shares of a specific class or series owned by such holder in the Corporation. If such a certificate is countersigned (1) by a transfer agent or an assistant transfer agent other than the Corporation or its employee or (2) by a registrar, other than the Corporation or its employee, the signature of any such president, vice-president, secretary, or assistant secretary may be facsimiles. In case any officer or officers who have signed, or whose facsimile signature or signatures have been used on, any such certificate or certificates shall cease to be such officer or officers of the Corporation whether because of death, resignation or otherwise before such certificate or certificates have been delivered by the Corporation, such certificate or certificates may nevertheless be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon had not ceased to be such officer or officers of the Corporation. All certificates for shares shall be consecutively numbered or otherwise identified. The name of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the books of the Corporation. Shares of stock of the Corporation shall only be transferred on the books of the Corporation by the holder of record thereof or by such holder’s attorney duly authorized in writing, upon surrender to the Corporation of the certificate or certificates for such shares endorsed by the appropriate person or persons, with such evidence of the authenticity of such endorsement, transfer, authorization, and other matters as the Corporation may reasonably require, and accompanied by all necessary stock transfer stamps. In that event, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate or certificates, and record the transaction on its books. The board of directors may appoint a bank or trust company organized under the laws of the United States or any state thereof to act as its transfer agent or registrar, or both in connection with the transfer of any class or series of securities of the Corporation.
Section 2. Lost Certificates. The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates previously issued by the Corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or destroyed. When authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen, or destroyed certificate or certificates, or his or her legal representative, to give the Corporation a bond sufficient to indemnify the Corporation against any claim that may be made against the Corporation on account of the loss, theft or destruction of any such certificate or the issuance of such new certificate.
Section 3. Fixing a Record Date for Stockholder Meetings. In order that the Corporation may determine the Stockholders entitled to notice of or to vote at any meeting of Stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not be more than sixty (60) nor less than
| 10 |
ten (10) days before the date of such meeting. If no record date is fixed by the board of directors, the record date for determining Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be the close of business on the next day preceding the day on which notice is given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of Stockholders of record entitled to notice of or to vote at a meeting of Stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting.
Section 4. Fixing a Record Date for Action by Written Consent. In order that the Corporation may determine the Stockholders entitled to consent to corporate action in writing without a meeting, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the board of directors. If no record date has been fixed by the board of directors, the record date for determining Stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is required by statute, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in the State of Georgia, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of Stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the board of directors and prior action by the board of directors is required by statute, the record date for determining Stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action.
Section 5. Fixing a Record Date for Other Purposes. In order that the Corporation may determine the Stockholders entitled to receive payment of any dividend or other distribution or allotment or any rights or the Stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purposes of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining Stockholders for any such purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto.
Section 6. Registered Stockholders. Prior to the surrender to the Corporation of the certificate or certificates for a share or shares of stock with a request to record the transfer of such share or shares, the Corporation may treat the registered owner as the person entitled to receive dividends, to vote, to receive notifications, and otherwise to exercise all the rights and powers of an owner. The Corporation shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof.
Section 7. Subscriptions for Stock. Unless otherwise provided for in the subscription agreement, subscriptions for shares shall be paid in full at such time, or in such installments and
| 11 |
at such times, as shall be determined by the board of directors. Any call made by the board of directors for payment on subscriptions shall be uniform as to all shares of the same class or as to all shares of the same series. In case of default in the payment of any installment or call when such payment is due, the Corporation may proceed to collect the amount due in the same manner as any debt due the Corporation.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to the provisions of the Articles of Incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Articles of Incorporation. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or any other purpose and the directors may modify or abolish any such reserve in the manner in which it was created.
Section 2. Checks, Drafts or Orders. All checks, drafts, or other orders for the payment of money by or to the Corporation and all notes and other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or officers, agent or agents of the Corporation, and in such manner, as shall be determined by resolution of the board of directors or a duly authorized committee thereof.
Section 3. Contracts. The board of directors may authorize any officer or officers, or any agent or agents, of the Corporation to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances.
Section 4. Loans. The Corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the Corporation or of its subsidiary, including any officer or employee who is a director of the Corporation or its subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to benefit the Corporation. The loan, guaranty or other assistance may be with or without interest, and may be unsecured, or secured in such manner as the board of directors shall approve, including, without limitation, a pledge of shares of stock of the Corporation. Nothing in this section contained shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the Corporation at common law or under any statute.
Section 5. Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the board of directors.
Section 6. Corporate Seal. The board of directors shall provide a corporate seal which shall be in the form of a circle and shall have inscribed thereon the name of the Corporation and the words “Corporate Seal, Georgia”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
| 12 |
Section 7. Inspection of Books and Records. Any stockholder of record, in person or by attorney or other agent, shall, upon written demand stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the Corporation’s stock ledger, a list of its Stockholders, and its other books and records, and to make copies or extracts therefrom. A proper purpose shall mean any purpose reasonably related to such person’s interest as a Stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the Stockholder. The demand shall be directed to the Corporation at its registered office in the State of Georgia or at its principal place of business.
Section 8. Section Headings. Section headings in these by-laws are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein.
Section 9. Inconsistent Provisions. In the event that any provision of these by-laws is or becomes inconsistent with any provision of the Articles of Incorporation, the Georgia Business Corporation Code of the State of Georgia or any other applicable law, the provision of these by-laws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect.
ARTICLE VIII
AMENDMENTS
These by-laws may be amended, altered, or repealed and new by-laws adopted at any meeting of the board of directors by a majority vote. The fact that the power to adopt, amend, alter, or repeal the by-laws has been conferred upon the board of directors shall not divest the Stockholders of the same powers.
| 13 |
Exhibit 99.2
STERLING PARTNERS COMPLETES ACQUISITION OF INNOTRAC
Chicago and Atlanta – Jan. 6, 2014 – Innotrac Corporation (NASDAQ: INOC) (“Innotrac”), Blue Eagle Holdings, L.P. (“Parent”), and Blue Eagle Acquisition Sub, Inc., a wholly-owned subsidiary of Parent (“Purchaser”), today announced the successful completion of the previously-announced acquisition by Purchaser and Parent of Innotrac. Parent and Purchaser are affiliates of Sterling Partners, a growth-oriented investment firm with more than $5 billion of assets under management.
Following the completion of the cash tender offer for all of the outstanding shares of common stock of Innotrac at a price per share of $8.20, Purchaser consummated the acquisition of Innotrac through a “short-form” merger. In the merger, Innotrac stockholders that did not tender their shares in the tender offer will receive the same $8.20 price per share.
Innotrac common stock will cease trading on NASDAQ at market close on January 6, 2014, and will no longer be listed.
About Sterling Partners
Sterling Partners is a private equity firm with a distinct point of view on how to build great companies. Founded in 1983, Sterling has invested billions of dollars, guided by the company’s stated purpose, INSPIRED GROWTH™, which describes Sterling’s approach to buying differentiated businesses and growing them in inspired ways. Sterling focuses on investing growth capital in small and mid-market companies in industries with positive, long-term trends – education, healthcare, and business services. Sterling provides valuable support to the management teams of the companies in which the firm invests through a deep and dedicated team of operations and functional experts based in the firm’s offices in Chicago, Baltimore and Miami.
The people at Sterling believe in ideas and ideals, in people and partnerships that drive long-term success. For more information, please visit www.sterlingpartners.com.
About Innotrac
Innotrac Corporation, founded in 1984 and based near Atlanta, Georgia, is a best-in-class commerce provider integrating digital technology, fulfillment, contact center and business intelligence solutions to support global brands. Innotrac’s fulfillment, order management and contact center solutions are integrated with all major web platforms, and seamlessly integrate with any required partner technologies. Innotrac employs sophisticated order processing and warehouse management technology and operates eight fulfillment centers and one call center spanning all time zones across the continental United States. Innotrac Europe GmbH has a network of fulfillment centers, call centers, and returns processing facilities with operations in the UK, Germany, France, Denmark, Sweden, Poland, Austria, Italy, Switzerland, Ireland, Spain and the Netherlands. Connect with Innotrac at www.innotrac.com or http://www.linkedin.com/company/innotrac.
Media Contact
Samantha Nelson, on behalf of Sterling Partners
Samantha.nelson@edelman.com
+1 212-704-4589