SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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 the 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 to Rule 14a-11(c) or Rule 14a-12
NOBLE INTERNATIONAL, LTD.
________________________________________________________________________________
(Name of Registrant as Specified In Its Charter)
________________________________________________________________________________
(Name of Person(s) Filing Proxy Statement)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[_] Fee computed on table below per Exchange Act Rule 14a-6(i)(1) and 0-11.
1) Title of each class of securities to which transaction applies:
_____________________________________________________________________________
2) Aggregate number of securities to which transaction applies:
_____________________________________________________________________________
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing
fee is calculated and state how it was determined):
_____________________________________________________________________________
4) Proposed maximum aggregate value of transaction:
_____________________________________________________________________________
5) Total fee paid:
_____________________________________________________________________________
/_/ Fee paid previously with preliminary materials.
/_/ Check box if any part of the fee is offset as provided by
Exchange Act Rule 0-11(a)(2) and identify the filing for which
the offsetting fee was paid previously. Identify the previous
filing by registration statement number, or the form or schedule
and the date of its filing.
1) Amount previously paid: _________________________________________________
2) Form, Schedule or Registration No. ______________________________________
3) Filing party: ___________________________________________________________
4) Date filed: _____________________________________________________________
<PAGE>
NOBLE INTERNATIONAL, LTD.
33 Bloomfield Hills Parkway, Suite 155
Bloomfield Hills, Michigan 48304
--------------------
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
April 26, 1999
10:00 a.m.
--------------------
Notice is hereby given that the Annual Meeting of Shareholders of Noble
International, Ltd. will be held at the Management Education Center, 811 W.
Square Lake Rd., Troy, MI 48098, on Monday, April 26, 1999, at 10:00 a.m. to
consider and vote upon:
1. The election of a Board of Directors consisting of nine (9)
directors. The Proxy Statement which accompanies this Notice
includes the names of the nominees to be presented by the
Board of Directors for election;
2. A proposal to change the Company's state of incorporation from
Michigan to Delaware, including changes in the Bylaws of the
Company;
3. In the event that proposal 2 is not approved, a proposal to
amend the Company's Bylaws to provide for the establishment of
a classified Board of Directors;
4. Ratification of Grant Thornton LLP as independent public
accountants of the Company; and
5. The transaction of such other business as may properly come
before the Annual Meeting.
The Board of Directors has fixed the close of business on February 26,
1999 as the record date for determination of shareholders entitled to notice of,
and to vote, at the Annual Meeting. To assure that your shares will be
represented at the Annual Meeting, please mark, sign, date and promptly return
the accompanying proxy card in the enclosed envelope. You may revoke your proxy
at any time before it is voted.
Shareholders are cordially invited to attend the meeting in person.
Please indicate on the enclosed proxy whether you plan to attend the meeting.
Shareholders may vote in person if they attend the meeting even though they have
executed and returned a proxy.
By Order of the Board of Directors,
Michael C. Azar
Secretary
Dated: April 1, 1999
<PAGE>
NOBLE INTERNATIONAL, LTD.
--------------------
PROXY STATEMENT
ANNUAL MEETING OF SHAREHOLDERS
--------------------
INTRODUCTION
This Proxy Statement is furnished by the Board of Directors of Noble
International, Ltd., a Michigan corporation, (the "Company") in connection with
the solicitation of proxies for use at the Annual Meeting of Shareholders to be
held on April 26, 1999 and at any adjournments thereof. The Annual Meeting has
been called to consider and vote upon (1) the election of nine Directors, (2) a
proposal to change the Company's state of incorporation from Michigan to
Delaware (including the establishment of a classified Board of Directors), (3)
an alternative proposal to establish a classified Board of Directors (to be
acted upon only if the reincorporation in Delaware is not approved), (4) the
ratification of Grant Thornton LLP as the Company's independent public
accountants, and (5) such other business as may properly come before the Annual
Meeting. This Proxy Statement and the accompanying Proxy are being sent to
shareholders on or about April 1, 1999.
Persons Making the Solicitation
The Proxy is solicited on behalf of the Board of Directors of the
Company. The original solicitation will be by mail. Following the original
solicitation, the Board of Directors expects that certain individual
shareholders will be further solicited through telephone or other oral
communications from the Board of Directors. The Board of Directors does not
intend to use specially engaged employees or paid solicitors. The Board of
Directors intends to solicit proxies for shares which are held of record by
brokers, dealers, banks or voting trustees, or their nominees, and may pay the
reasonable expenses of such record holders for completing the mailing of
solicitation materials to persons for whom they hold shares. All solicitation
expenses will be borne by the Company.
Terms of the Proxy
The enclosed Proxy indicates the matters to be acted upon at the Annual
Meeting and provides boxes to be marked to indicate the manner in which the
shareholder's shares are to be voted with respect to such matters. By
appropriately marking the boxes, a shareholder may specify whether the proxy
shall vote for or against or shall be without authority to vote the shares
represented by the Proxy. The Proxy also confers upon the proxy discretionary
voting authority with respect to such other business as may properly come before
the Annual Meeting.
If the Proxy is executed properly and is received by the proxy prior to
the Annual Meeting, the shares represented by the Proxy will be voted. Where a
shareholder specifies a choice with respect to the matter to be acted upon, the
shares will be voted in accordance with such specification. Any Proxy which is
executed in such a manner as not to withhold authority to vote for the election
of the specified nominees as Directors (see "Matters To Be Acted Upon -- Item 1:
Election of Directors") shall be deemed to confer such authority. A Proxy may be
revoked at any time prior to its exercise by giving written notice of the
revocation thereof to Michael C. Azar, Secretary, Noble International, Ltd., 33
Bloomfield Hills Parkway, Suite 155, Bloomfield Hills, Michigan 48304, by
attending the meeting and electing to vote in person, or by a duly executed
Proxy bearing a later date.
<PAGE>
VOTING RIGHTS AND REQUIREMENTS
Voting Securities
The securities entitled to vote at the Annual Meeting consist of all of
the issued and outstanding shares of the Company's common stock, no par value
per share ("Common Stock"). The close of business on February 26, 1999 has been
fixed by the Board of Directors of the Company as the record date. Only
shareholders of record as of the record date may vote at the Annual Meeting. As
of the record date, there were 7,158,482 issued and outstanding shares of the
Company's Common Stock entitled to vote at the Annual Meeting and approximately
400 holders of record and approximately 1,900 beneficial owners of the Company's
Common Stock.
Quorum
The presence at the Annual Meeting of the holders of a number of shares
of the Company's Common Stock and Proxies representing the right to vote shares
of the Company's Common Stock in excess of one-half of the number of shares of
the Company's Common Stock outstanding as of the record date will constitute a
quorum for transacting business.
2
<PAGE>
COMMON STOCK OWNERSHIP OF CERTAIN
BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information, as of February 26, 1999,
with respect to the beneficial ownership of the Company's Common Stock by: (i)
each person known by the Company to own more than 5% of the Company's Common
Stock; (ii) each director and nominee for director; (iii) each officer of the
Company named in the Summary Compensation Table; and (iv) all officers and
directors of the Company as a group. Except as otherwise indicated, each
shareholder listed below has sole voting and investment power with respect to
the shares beneficially owned by such person.
Number of Shares Percent of
Name and Address of Beneficial Owner(1) Beneficially Owned Class
- --------------------------------------- ------------------ ----------
Robert J. Skandalaris(2) 3,068,956 42.87%
Richard V. Balgenorth 83,554 1.17%
Michael C. Azar 41,156 0.57%
Richard K. Mastain(3) 34,200 0.49%
Lloyd P. Jones III 22,000 0.31%
Timothy F. Healy(4) 13,000 0.18%
Anthony R. Tersigni(4) 10,000 0.14%
Mark T. Behrman 3,704 0.05%
Daniel J. McEnroe(4) 5,000 0.07%
Michael R. Hottinger 1,250 0.02%
Christopher L. Morin 1,000 0.01%
Daniel W. Sampson 850 0.01%
Jonathan P. Rye 0 0%
All Directors and Officers
as a group (11 persons) 3,246,766 45.26%
- ------------
(1) The address of each named person is 33 Bloomfield Hills Parkway, Suite 155,
Bloomfield Hills, Michigan 48304.
(2) Includes 150,396 shares of Common Stock held by Robert J. Skandalaris as
custodian for his children; and 534,742 shares of Common Stock over which
Mr. Skandalaris exercises voting power pursuant to certain Voting Agreements
and Powers of Attorney.
(3) Includes 34,200 shares of Common Stock held by Twenty First Century Advisors
Domestic Fund, L.L.C., a Delaware limited liability company managed by
Twenty First Century Advisors, L.P., an entity controlled by Mr. Mastain.
(4) Includes options to purchase 5,000 shares of Common Stock at $6.23 per share
expiring in 2003.
3
<PAGE>
MATTERS TO BE ACTED UPON
ITEM 1: ELECTION OF DIRECTORS
Directors
The nominees for the Board of Directors are set forth below. Subject to
the approval of the Reincorporation or, in the alternative, the approval of the
amendment to the Company's Bylaws, the Company will have a classified Board of
Directors that will be divided into three (3) classes, Class I, Class II and
Class III, as such directors are elected at the Annual Meeting. The Company's
Bylaws give the Board the power to set the number of directors at no less than
seven nor more than twelve. Noble Delaware's Bylaws give the Board the power to
set the number of directors at no less than seven nor more than twelve. The size
of the Company's Board is currently set at nine. In the event that the
Reincorporation is approved, the size of Noble Delaware's Board will be set at
nine. Nine directors are to be elected at the Annual Meeting to be held on April
26, 1999.
The initial terms of the Class I Directors elected at the Annual
Meeting will expire at the Company's next Annual Meeting of Shareholders. The
initial terms of the Class II Directors elected at the Annual Meeting will
expire at the 2001 Annual Meeting of Shareholders. The initial terms of the
Class III Directors elected at the Annual Meeting will expire at the 2002 Annual
Meeting of Shareholders. Commencing with the next Annual Meeting of
Shareholders, directors selected by the shareholders will be elected to serve
for three (3) years and until their successors are duly elected and qualified.
If the proposal to reincorporate in the State of Delaware is not approved, or
the alternative proposal to amend the Company's Bylaws to establish a classified
Board is not approved, all nine (9) nominees to serve as directors will be
nominated to serve a one-year term as the Company's Bylaws do not currently
provide for a classified board.
Three (3) persons have been nominated by the Board of Directors to
serve as the Class I Directors until the next Annual Meeting of Shareholders,
three (3) persons have been nominated by the Board of Directors to serve as the
Class II Directors until the 2001 Annual Meeting of Shareholders and three (3)
persons have been nominated by the Board of Directors to serve as the Class III
Directors until the 2002 Annual Meeting of Shareholders. The Board of Directors
recommends that the three (3) nominees to serve as Class I Directors, Daniel W.
Sampson, Jonathan P. Rye and Richard K. Mastain, be elected to serve as the
Class I Directors until the next Annual Meeting of Shareholders, that the three
(3) nominees to serve as Class II Directors, Michael R. Hottinger, Lloyd P.
Jones, III and Daniel J. McEnroe, be elected to serve as the Class II Directors
until the 2001 Annual Meeting of Shareholders, and that the three (3) nominees
to serve as Class III Directors, Mark T. Behrman, Robert J. Skandalaris and
Anthony R. Tersigni, be elected to serve as the Class III Directors until the
2002 Annual Meeting. Timothy F. Healy, a current director of the Company has
declined to stand for reelection due to other business commitments.
The Board knows of no reason why any nominee for director would be
unable to serve as a director. In the event that any of them should become
unavailable prior to the Annual Meeting, the Proxy will be voted for a
substitute nominee or nominees designated by the Board of Directors, or the
number of directors may be reduced accordingly.
4
<PAGE>
The following table sets forth the name and age of each nominee for
director, the year he was first elected a director and his position(s) with the
Company.
<TABLE>
<CAPTION>
Director
Name Age Since Positions Held
- --------------------- -------- ------------ -------------------------------------
<S> <C> <C> <C>
Robert J. Skandalaris 46 1993 Chairman of the Board, Chief
Executive Officer and Director
Lloyd P. Jones III 49 1998 President, Chief Operating Officer
and Director
Daniel W. Sampson 48 1999 Chief Financial Officer and Director
Daniel J. McEnroe 36 1997 Director
Anthony R. Tersigni 49 1997 Director
Michael R. Hottinger 48 1998 Director
Mark T. Behrman 36 1999 Director
Jonathan P. Rye 43 N/A Director nominee
Richard K. Mastain 47 N/A Director nominee
</TABLE>
Robert J. Skandalaris, the Company's founder, currently serves as
Chairman of the Board, Chief Executive Officer and Director. Prior to founding
the Company in 1993, Mr. Skandalaris was Vice Chairman and a shareholder of The
Oxford Investment Group, Inc., a Michigan-based merchant banking firm and served
as Chairman and Chief Executive Officer of Acorn Asset Management, a privately
held investment advisory firm. Mr. Skandalaris began his career as a Certified
Public Accountant with the national accounting firm of Touche Ross & Co.
Lloyd P. Jones, III joined the Company in February 1998 as its
President and Chief Operating Officer. Mr. Jones became a member of the Board of
Directors in February 1998. Prior to joining the Company, Mr. Jones served as
Executive Vice President of A.G. Simpson, a Tier I automotive supplier. From
1993 to 1996, Mr. Jones served as Vice President of Sales for Masco Tech
Stamping Technologies, Inc., a Tier I automotive supplier of a broad range of
products. Mr. Jones also served as Executive Vice President of Sales and
Marketing of Magna International, Inc., a multi-billion dollar Tier I supplier
of a diverse line of automotive parts.
Daniel W. Sampson joined the Company in October 1998 as its Chief
Financial Officer and became a Director in January 1999. Prior to joining the
Company, Mr. Sampson was Chief Financial Officer and group controller of BBA
Nonwovens, a large manufacturer of nonwovens with operations in the United
States, Europe and South America. Mr. Sampson was Vice President-Finance and
group controller for Fasco Motors Group, a large electric motor and blower
manufacturing group with operations in the United States, Canada, Mexico,
Australia and Europe from 1992 to 1996. Mr. Sampson began his career as a
Certified Public Accountant with the national accounting firm of
PricewaterhouseCoopers LLP.
Daniel J. McEnroe joined the Company's Board of Directors in November
1997. Since 1995, Mr. McEnroe has been the Treasurer of Detroit Diesel
Corporation. Mr. McEnroe also serves as a member of the board of directors and
as a representative on the credit committee of Detroit Diesel Capital
Corporation. Prior to joining Detroit Diesel Corporation, Mr. McEnroe served as
Assistant Treasurer of Penske Corporation, a privately held holding company
whose operating entities include Detroit Diesel Corporation. Mr. McEnroe has
been a Certified Public Accountant since 1985 and a Chartered Financial Analyst
since 1991.
Anthony R. Tersigni, Ed.D, joined the Company's Board of Directors in
November 1997. Dr. Tersigni is the President and Chief Executive Officer of St.
John Health System, an integrated health delivery system headquartered in
Detroit, Michigan. Prior to joining St. John Health System in 1995, Dr. Tersigni
was President and Chief Executive Officer of Oakland General Health Systems,
Inc., in Madison Heights, Michigan. Dr. Tersigni holds a doctorate in
Organizational Development.
5
<PAGE>
Michael R. Hottinger joined the Company's Board of Directors in
December 1998. Mr. Hottinger is the President and CEO of ACD Tridon, Inc., a
supplier of windshield wiper systems, electronics, and engineered fasteners to
the worldwide automotive industry. Prior to his current position, Mr. Hottinger
served in various management positions at General Motors and Magna
International.
Mark T. Behrman joined the Company's Board of Directors in January
1999. Mr. Behrman is the Managing Director of Corporate Finance and Global
Investment Banking of BlueStone Capital Partners, L.P., an investment and
merchant banking firm. Prior to joining BlueStone Capital, Mr. Behrman served as
Managing Director and Head of Corporate Finance for Commonwealth Associates.
Previously, he was the Chief Financial Officer of Fundamental Brokers, Inc. He
was also employed by Drexel Burnham Lambert, Inc. in various financial
capacities, and began his financial career at Paine Webber, Inc.
Jonathan P. Rye is a nominee for Director of the Company. Mr. Rye is
the Managing Partner of Greenfield Partners, a private investment capital firm
specializing in the acquisition of Michigan based manufacturing and service
companies with revenues between $2.5 million and $25 million. Mr. Rye also
serves as Chairman of Greenfield Commercial Credit, a commercial financing
company established in 1995 to meet the financial needs of Midwest businesses.
Prior thereto, Mr. Rye served as CEO of Lamb Technicon, a leading supplier of
large automated manufacturing systems with annual sales of $400 million until
its sale to Litton Industries in 1987.
Richard K. Mastain is a nominee for Director of the Company. From July
1996 to the present, Mr. Mastain has served as Managing Partner of Twenty First
Century Advisors, a portfolio manager of both a domestic fund and an offshore
fund. Mr. Mastain also currently serves as a partner of Delta Capital
Management, a New York based investment advisor. From January 1993 until July
1997, Mr. Mastain served as Managing Director of Dreman Value Advisors. Prior
thereto, Mr. Mastain served a Co-National Manager for Prudential Asset
Management Company, a subsidiary of the Prudential Insurance Company, which
manages over $100 billion in pension assets.
The executive officer of the Company who is not also a director is as
follows:
Michael C. Azar, Age 35, General Counsel, Vice President-Administration
and Secretary, joined the Company in November 1996. Mr. Azar also served as a
member of the Company's Board of Directors from December 1996 until November
1997. Prior to joining the Company, Mr. Azar was employed as General Counsel to
River Capital, Inc., an investment banking firm, from January through November
1996. From 1988 to 1995, Mr. Azar practiced law with the firm of Mason,
Steinhardt, Jacobs and Perlman in Southfield, Michigan.
Board of Directors Meetings and Committees
During the fiscal year ended December 31, 1998, there were six meetings
of the Board of Directors. Robert J. Skandalaris, Lloyd P. Jones, III, Anthony
R. Tersigni and Michael R. Hottinger served on the Nominating Committee. Daniel
J. McEnroe, Anthony R. Tersigni and James Bronce Henderson, III (succeeded by
Mark T. Behrman in January 1999 following Mr. Henderson's resignation from the
Board), all of whom are outside directors, served on the Company's Audit
Committee. Timothy F. Healy, Daniel J. McEnroe and Anthony R. Tersigni all of
whom are outside directors, served on the Company's Compensation Committee.
Three committee meetings were held during the fiscal year ended December 31,
1998.
6
<PAGE>
EXECUTIVE COMPENSATION AND OTHER INFORMATION
Executive Compensation
The following table sets forth the total compensation earned by the
Chief Executive Officer and all other executive officers who earned in excess of
$100,000 per annum during any of the Company's last three fiscal years.
SUMMARY COMPENSATION TABLE(1)
<TABLE>
<CAPTION>
Annual Compensation Long Term Compensation
-------------------------------- --------------------------
Restricted Securities
Name and Stock Underlying
Principal Award(s) Options/
Position Year Salary ($) Bonus ($) $ SARs (#)
- --------------------------------- ---- ---------- --------- ----------- ----------
<S> <C> <C> <C> <C> <C>
Robert J. Skandalaris, 1998 $ 225,000 $
Chief Executive Officer 1997 $ 174,230 $ --
1996 $ 94,000 $ 960,000(2)
Lloyd P. Jones, III, President 1998 $ 181,875 100,000
and Chief Operating Officer (3)
Christopher L. Morin, 1998 $ 175,000 $ 30,000 50,000
Chief Operating Officer(4)
Richard V. Balgenorth, 1998 $ 150,000 $
Chief Financial Officer(5) 1997 $ 137,500 $ --
Michael C. Azar, 1998 $ 115,000 $ 13,500 10,000
General Counsel
Mark A. Davis, 1996 $ 112,400 $ -- $ 32,000(7)
Former President and
General Counsel(6)
</TABLE>
- -----------
(1) Does not include any value that might be attributable to job-related
personal benefits, the annual value of which has not exceeded the lesser of
10% of annual salary plus bonus or $50,000 for each executive officer.
(2) Mr. Skandalaris agreed to forego any bonus for the year ended December 31,
1997. See "--Employment Agreement."
(3) Mr. Jones joined the Company in February 1998 as its President and also
became Chief Operating Officer in August 1998.
(4) Mr. Morin served as Chief Operating Officer of Noble from June 1997 until
August 1998 when he moved to Noble's subsidiary, Noble Technologies, Inc.
where he currently serves as Chief Executive Officer.
(5) Mr. Balgenorth served as Chief Financial Officer of Noble from May 1996
until October 1998 when he moved to Noble's subsidiary, Noble Technologies,
Inc. where he currently serves as Vice President-Corporate Development.
(6) Mr. Davis served as an officer and director of the Company from July 1996 to
October 1996. Prior thereto Mr. Davis was employed as an officer of
Prestolock International, Ltd. from January 1996 to July 1996. Compensation
set forth in the table includes Mr. Davis' salaries at Prestolock
International, Ltd. and the Company.
(7) Represents the book value of shares of common stock issued to Mr. Davis on
January 1, 1996. These shares were subsequently repurchased from Mr. Davis
when he left the Company in October 1996 by Robert J. Skandalaris, as
assignee of the Company's right to repurchase pursuant to Mr. Davis'
Shareholder's Agreement with the Company.
7
<PAGE>
OPTION/SAR GRANTS IN 1998
<TABLE>
<CAPTION>
Potential Realizable Value
at Assumed Annual Rates of
Stock Price Appreciation
Individual Grants(1) for Option Term
- ------------------------------------------------------------------------------------ --------------------------------
% of Total
Number of Options/
Securities SARs
Underlying Granted to Exercise Market
Name Options/SARs Employees or Base Price on Expiration 0% 5% 10%
Granted (#) In Fiscal Price Date of Date ($) ($) ($)
Year ($/Sh) Grant
- --------------------- ------------ ---------- -------- -------- ---------- --------- -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Lloyd P. Jones, III 50,000 17.9% $6.23 $6.94 02/09/03 $35,500 $131,370 $247,500
50,000 17.9% $6.05 $6.88 10/01/03 $41,000 $136,500 $251,500
Christopher L. Morin 35,000 12.5% $6.23 $6.94 02/09/03 $24,850 $ 92,050 $173,250
15,000 5.4% $6.05 $6.88 10/01/03 $12,450 $ 40,950 $ 75,450
Richard V. Balgenorth 10,000 3.6% $6.23 $6.94 02/09/03 $ 7,100 $ 26,300 $ 49,500
15,000 5.4% $6.05 $6.88 10/01/03 $12,450 $ 40,950 $ 75,450
Michael C. Azar 10,000 3.6% $6.05 $6.88 10/01/03 $ 7,100 $ 27,300 $ 50,300
</TABLE>
- ----------
(1) All options granted in 1998 vest in accordance with the Company's standard
vesting schedule, which provides for vesting of 40% of the options granted
after two years, an additional 30% after three years and the remaining 30%
after four years.
Stock Option Plan
In November 1997, the Board of Directors of the Company adopted, and in
April 1998, the Company's shareholders approved, the Noble International, Ltd.
1997 Stock Option Plan (the "Plan"). The Plan provides for the grant to
employees, officers, directors, consultants and independent contractors of
non-qualified stock options as well as for the grant of stock options to
employees that qualify as incentive stock options under Section 422 of the
Internal Revenue Code of 1986 ("Code"). Although the Company has approximately
1,200 employees technically eligible to participate in the Plan, it is
anticipated the stock options will be granted only to a limited number of
management level personnel. The Plan terminates on November 24, 2007. The
purpose of the 1997 Plan is to enable the Company to attract and retain
qualified persons as employees, officers and directors and others whose services
are required by the Company, and to motivate such persons by providing them with
an equity participation in the Company. The Plan reserved 700,000 shares of the
Company's common stock for issuance, subject to adjustment upon occurrence of
certain events affecting the capitalization of the Company.
The Plan is administered by the Compensation Committee of the Board of
Directors (the "Committee"), which has, subject to specified limitations, the
full authority to grant options and establish the terms and conditions for
vesting and exercise thereof. The exercise price of incentive stock options
granted under the Plan is required to be no less than the fair market value of
the common stock on the date of grant (110% in the case of a greater than 10%
shareholder). The exercise price of non-qualified stock options is required to
be no less than 85% of the fair market value of the common stock on the date of
grant. Options may be granted for terms of up to 10 years (5 years in the case
of incentive stock options granted to greater than 10% shareholders). No
optionee may be granted incentive stock options such that the fair market value
of the options which first become exercisable in any one calendar year exceeds
$100,000. If an optionee ceases to be employed by, or ceases to have a
relationship with the Company, such optionee's options expire six months after
termination of the employment or consulting relationship by reason of death, one
year after termination by reason of permanent disability, immediately upon
termination for cause and three months after termination for any other reason.
8
<PAGE>
In order to exercise an option granted under the Plan, the optionee
must pay the full exercise price of the shares being purchased. Payment may be
made either: (i) in cash; (ii) at the discretion of the Committee, by delivering
shares of common stock already owned by the optionee that have a fair market
value equal to the applicable exercise price; or (iii) in the form of such other
consideration as may be determined by the Committee and permitted by applicable
law.
Subject to the foregoing, the Committee has broad discretion to
describe the terms and conditions applicable to options granted under the Plan.
The Committee may at any time discontinue granting options under the Plan or
otherwise suspend, amend or terminate the Plan and may, with the consent of an
optionee, make such modification of the terms and conditions of such optionee's
option as the Committee shall deem advisable. However, the Committee has no
authority to make any amendment or modifications to the Plan or any outstanding
option which would: (i) increase the maximum number of shares which may be
purchased pursuant to options granted under the Plan, either in the aggregate or
by an optionee, except in connection with certain antidilution adjustments; (ii)
change the designation of the class of employees eligible to receive qualified
options; (iii) extend the term of the 1997 Plan or the maximum option period
thereunder; (iv) decrease the minimum qualified option price or permit
reductions of the price at which shares may be purchased for qualified options
granted under the Plan, except in connection with certain antidilution
adjustments; or (v) cause qualified stock options issued under the Plan to fail
to meet the requirements of incentive stock options under Section 422 of the
Code. Any such amendment or modification shall be effective immediately, subject
to shareholder approval thereof within 12 months before or after the effective
date. No option may be granted during any suspension or after termination of the
Plan.
The Plan is designed to meet the requirements of an incentive stock
option plan as defined in Code Section 422. As a result, an optionee will
realize no taxable income, for federal income tax purposes, upon either the
grant of an incentive stock option under the Plan or its exercise, except that
the difference between the fair market value of the stock on the date of
exercise and the exercise price is included as income for purposes of
calculating Alternative Minimum Tax. If no disposition of the shares acquired
upon exercise is made by the optionee within two years from the date of grant or
within one year from the date the shares are transferred to the optionee, any
gain realized upon the subsequent sale of the shares will be taxable as a
capital gain. In such case, the Company will be entitled to no deduction for
federal income tax purposes in connection with either the grant or the exercise
of the option. If, however, the optionee disposes of the shares within either of
the periods mentioned above, the optionee will realize earned income in an
amount equal to the excess of the fair market value of the shares on the date of
exercise (or the amount realized on disposition if less) over the exercise
price, and the Company will be allowed a deduction for a corresponding amount.
Director Compensation
Directors who are employees of the Company receive no compensation, as
such, for their service as members of the Board. Directors who are not employees
of the Company receive an attendance fee of $1,000 for each Board meeting or
committee meeting attended in person by that director and $250 for each
telephonic Board meeting or committee meeting in which such director
participated; however, fees for in-person meetings of the Board and committees
may not exceed $1,000 per day. All directors are reimbursed for expenses
incurred in connection with attendance at meetings. In addition, directors are
eligible to participate in the Company's 1997 Stock Option Plan.
Employment Agreement
The Company entered into an employment agreement with Robert J.
Skandalaris, its Chief Executive Officer, on April 2, 1997 (the "Employment
Agreement"). The Employment Agreement provides for an initial term of three
years, with an unlimited number of successive three-year renewals subject to the
election by either party not to renew the Employment Agreement. The Employment
Agreement provides for a base salary of $225,000 per annum commencing May 1,
1997 and continuing for the remainder of the term of employment. Mr. Skandalaris
is also entitled to an incentive bonus for each fiscal year in an amount to be
determined by the Compensation Committee of the Board (other than for 1997,
9
<PAGE>
for which year Mr. Skandalaris agreed to forego any bonus) as well as to
participate in any executive bonus or other incentive compensation program
adopted by the Company. In the event Mr. Skandalaris' employment is terminated
by the Company, without cause, or by reason of his death or disability, or in
the event the Employment Agreement is not renewed, the Company is obligated to
pay to Mr. Skandalaris, as severance and/or liquidated damages, an amount equal
to three times his annual base salary at the time of termination plus any
incentive bonus due under the Employment Agreement. Prior to April 1, 1997, the
Company did not have an employment agreement with Mr. Skandalaris.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934, as amended,
requires the Company's officers, directors and persons who beneficially own more
than 10% of a registered class of the Company's equity securities to file
reports of securities ownership and changes in such ownership with the
Securities and Exchange Commission (the "SEC"). Officers, directors and greater
than 10% beneficial owners are also required by rules promulgated by the SEC to
furnish the Company with copies of all Section 16(a) forms they file.
Based solely upon a review of the copies of such forms furnished to the
Company, or written representations that no Form 5 filings were required, the
Company believes that during the period from January 1, 1998 through December
31, 1998, all Section 16(a) filing requirements applicable to its officers,
directors and greater than 10% beneficial owners were complied with except Mr.
Michael Hottinger's Form 3 filed November 10, 1998 reporting one transaction,
Mr. Kenneth Pachla's Form 4 filed November 30, 1998 reporting one transaction
and Mr. Christopher Morin's Form 4 filed November 12, 1998 reporting one
transaction.
Certain Relationships and Related Transactions
Monroe Acquisition
Effective January 1, 1996, the Company acquired Monroe Engineering
Products, Inc. ("Monroe") (the "Monroe Acquisition") from Richard J. Reason,
individually and as trustee of a revocable trust, and from an irrevocable trust
for the benefit of Mr. Reason's children. Mr. Reason was a member of the
Company's Board of Directors and served as the President and a director of
Monroe until his death in August 1998. The aggregate consideration was $6.85
million, including: (i) a stock purchase price of $6.35 million, payable in
installments over 16 months; and (ii) a real estate purchase price of $500,000,
payable pursuant to a Land Contract which provides for monthly interest payments
at the rate of 12% per annum and a principal balloon payment on April 30, 1998.
The obligations of the Company under the Land Contract were guaranteed by Robert
J. Skandalaris, the Company's Chief Executive Officer. Concurrent with the
Monroe Acquisition, Monroe entered into a 28-month employment agreement with Mr.
Reason, which provides for an annual salary of $200,004, as well as guaranteed
payments of $2,000 per month, for a three-year period commencing May 1, 1998.
NMP Acquisition
On April 7, 1997, the Company entered into a Stock Purchase Agreement
providing for the acquisition of all of the outstanding capital stock of Noble
Metal Processing, Inc. ("NMP") (the "NMP Acquisition"). The NMP Acquisition was
consummated concurrently with the Company's initial public offering of Common
Stock on November 24, 1998. The Stock Purchase Agreement provided for a purchase
price of $8.2 million in cash and the delivery of promissory notes in four
series (the "NMP Notes") in the aggregate original principal amount of $10.1
million due 2001. On December 18, 1998, the Company entered into an agreement
with DCT, Inc. and John K. Baysore, a former shareholder and current officer of
NMP, for the discounted prepayment of the NMP Notes. The NMP Notes were prepaid
through an offering of 7% Junior Subordinated Notes due 2003, a loan to the
Company from Robert J. Skandalaris, in the principal amount of $6.0 million and
Noble's line of credit. The Company paid $9.67 million for the Notes, resulting
in an immediate discount of approximately $1.2 million, which included all
principal and accrued interest.
10
<PAGE>
In connection with the NMP Acquisition Mr. Henderson also received
$200,000 in exchange for his covenant not to compete with NMP for the longer of
seven years from the closing of the NMP Acquisition or two years from the date
he ceased to be a director of the Company.
NMP leases an approximately 210,000 square foot facility in Detroit,
Michigan from an entity controlled by Mr. Henderson pursuant to a five-year
lease expiring April 30, 2002. Pursuant to the terms of the lease, NMP acquired
occupancy of the larger building in stages, with one-half having been acquired
in August 1997 and the balance acquired in April 1998.
Other Matters
Certain shareholders of the Company have entered into voting agreements
and powers of attorney with the Company granting to Robert J. Skandalaris an
irrevocable proxy to vote their shares of Common Stock on all matters. These
voting agreements also bind after-acquired shares and shares transferred to
third parties. An aggregate of 534,742 shares, representing 7.5% of the
outstanding shares, are subject to such voting agreements. These shares are
owned by James D. Skandalaris, Richard G. Skandalaris, George J. Skandalaris,
Joseph J. Skandalaris and Robert J. Skandalaris as trustee for his minor
children. In July 1997, Shareholders Agreements were entered into between the
Company and certain employee-shareholders, including Richard V. Balgenorth and
Michael C. Azar, the former Chief Financial Officer and current General Counsel
of the Company, respectively, which provide the Company with the option to
repurchase their shares of Common Stock upon death or termination of employment,
based upon a book value formula.
On January 15, 1996, the Company received a loan of $300,000 from James
D. Skandalaris, the father of Robert J. Skandalaris, evidenced by an unsecured
promissory note with interest at 10% per annum, payable monthly, with the
principal balance due upon demand. In addition, on March 1, 1994, James D.
Skandalaris made a loan of $90,000 to Prestolock International, Ltd.
("Prestolock"), a wholly-owned subsidiary of the Company, evidenced by an
unsecured demand note with interest only payments due monthly at a rate of 10%
per annum. Effective June 30, 1997, James D. Skandalaris entered into a letter
agreement with the Company and Prestolock providing that no demand for repayment
of the principal balance of either the January 15, 1996 or March 1, 1994 notes
would be made until after December 30, 1998.
On April 30, 1996, Robert J. Skandalaris made a loan of $1 million to
the Company evidenced by an unsecured promissory note due on April 30, 2000,
bearing interest at the rate of 7% per annum with interest only payable monthly.
The note was repaid by the Company in July 1998.
On December 17, 1998, Robert J. Skandalaris made a loan of $6 million
to the Company evidenced by an unsecured promissory note due on December 31,
2000, bearing interest at the rate of 12% per annum with principal payments of
$250,000 due quarterly. In connection with the $6 million loan, the Company
agreed to register for resale under the Securities Act of 1933 an aggregate of
2,313,018 shares of Common Stock held by Mr. Skandalaris.
From January 1 to December 31, 1998, Richard K. Mastain, a nominee for
director, served as a consultant to the Company, providing advice to executive
management on financial and investor relations matters. Mr. Mastain received an
aggregate of $70,000 in consulting fees during 1998. Mr. Mastain no longer
serves as a consultant to the Company.
11
<PAGE>
REPORT OF THE COMPENSATION COMMITTEE ON EXECUTIVE COMPENSATION
The Compensation Committee report shall not be deemed incorporated by
reference by any general statement incorporating by reference this Proxy
Statement into any filing under the Securities Act of 1933 or under the
Securities Exchange Act of 1934, except to the extent that the Company
specifically incorporates this information by reference, and shall not otherwise
be deemed filed under such Acts.
Compensation Philosophy
The Compensation Committee, is responsible for developing and
recommending the Company's executive compensation policies to the Board of
Directors. The executive compensation philosophy of the Company is to (i)
attract and retain qualified management to run the business efficiently and
guide the Company's growth in both existing and new markets, (ii) establish a
link between management compensation and the achievement of the Company's annual
and long-term performance goals, and (iii) recognize and reward individual
initiative and achievement.
Base Salaries
Base salaries for management employees are based primarily on the
responsibilities of the position and the experience of the individual, with
reference to the competitive marketplace for management talent, measured in
terms of executive compensation offered by comparable companies in related
businesses. Increases in base salaries are based upon the performance of the
executive officers as compared to pre-established goals.
Cash Bonuses
Cash bonuses are awarded, at the discretion of the Compensation
Committee, to executive officers based in part on the overall financial
performance of the Company and in part on the performance of the executive
officer. The financial performance of the Company is measured by revenue and
operating income growth and actual performance against budgeted performance.
Stock Options
The Company grants stock options under the 1997 Plan as part of its
strategy to attract and retain qualified persons as executive officers and to
motivate such persons by providing them with an equity participation in the
Company. During 1998, options to purchase an aggregate of 280,000 shares were
granted to executives of the Company and its subsidiaries.
CEO Compensation
Mr. Skandalaris' compensation for fiscal 1998 was $225,000 in
accordance with the terms of his Employment Agreement with the Company.
Sincerely,
Timothy F. Healy
Daniel J. McEnroe
Anthony R. Tersigni
COMPENSATION COMMITTEE
12
<PAGE>
PERFORMANCE GRAPH
The following graph demonstrates the cumulative total return, on an
indexed basis, to the shareholders of the Company's Common Stock in comparison
with the Russell 2000 Index, an industry index of ten publicly traded companies
operating primarily in Standard Industrial Classification 371 ("Industry Index")
and a Company compiled index based upon a Standard & Poor's Auto-Parts Industry
list ("S&P Auto-Parts Index"). The Industry Index was selected by the Company in
1998 because the companies included therein engaged in the manufacturing of
motor vehicles and related parts, accessories and equipment with market
capitalizations similar to that of the Company. The Industry Index consists of:
Walbro Corp., Autocam Corp., R&B, Inc., IMPCO Technologies, Inc., Defiance,
Inc., Safety Components International, Inc., Newcor, Inc., Williams Controls,
Inc., Hilite Industries, Inc. and Secom General Corp. The S&P Auto-Parts Index
was chosen this year to replace the Industry Index because it more closely
approximates Noble's current and future peer group both in range of products
provided and market capitalization. The Auto-Parts Index is divided into four
groups representing auto manufacturers, recreational vehicle manufacturers,
truck and other vehicle manufacturers and auto parts manufacturers.
The graph assumes $10,000 invested on November 18, 1997 (the date the
Common Stock commenced trading on AMEX) in the Common Stock, in the Russell 2000
Index, the Industry Index and the Auto-Parts Index. The historical stock
performance shown on the graph is not necessarily indicative of future price
performance.
[OBJECT OMITTED]
<TABLE>
<CAPTION>
November 16, 1997 December 31, 1997 December 31, 1998
----------------- ----------------- -----------------
<S> <C> <C> <C>
The Company 10,000 9,792 10,000
Russell 2000 Index 10,000 10,150 9,797
S&P Auto-Parts Index 10,000 9,837 9,118
Industry Index 10,000 9,306 8,806
</TABLE>
13
<PAGE>
ITEM 2: APPROVAL OF REINCORPORATION IN DELAWARE
For the reasons set forth below, the Board of Directors believes that
it is in the best interests of the Company and its shareholders to change the
state of incorporation of the Company from Michigan to Delaware (the
"Reincorporation Proposal" or the "Proposed Reincorporation"). SHAREHOLDERS ARE
URGED TO READ CAREFULLY THIS SECTION OF THE PROXY STATEMENT, INCLUDING THE
RELATED EXHIBITS REFERENCED BELOW AND ATTACHED HERETO, BEFORE VOTING ON THE
REINCORPORATION PROPOSAL. Throughout this Proxy Statement, the term "Noble
Michigan" or the "Company" refers to Noble International, Ltd., the existing
Michigan corporation, and the term "Noble Delaware" refers to a new Delaware
corporation which is a wholly-owned subsidiary of Noble Michigan, which is the
proposed successor to Noble Michigan in the Proposed Reincorporation.
As discussed below, the principal reasons for the Proposed
Reincorporation are the greater flexibility of Delaware corporate law and the
substantial body of case law interpreting that law. The Company believes that
its shareholders will benefit from the well established principles of corporate
governance that Delaware law affords. The Delaware Certificate of Incorporation
and Bylaws are substantially similar to those currently in effect for Noble
Michigan, with the exception that Noble Delaware's Bylaws provides for a
staggered Board of Directors. The Reincorporation Proposal is not being proposed
in order to prevent an unsolicited takeover attempt, and the Board of Directors
is not aware of any present attempt by any person to acquire control of the
Company, obtain representation on the Board of Directors or take any action that
would materially affect the governance of the Company.
The Reincorporation Proposal will be effected by merging Noble Michigan
into Noble Delaware (the "Merger"). Upon consummation of the Merger, Noble
Michigan, as a corporate entity, will cease to exist and Noble Delaware will
continue to operate the business of the Company under its current name, Noble
International, Ltd.
Pursuant to the Agreement and Plan of Merger, in substantially the form
attached hereto as Appendix A (the "Merger Agreement"), each outstanding share
of Noble Michigan Common Stock, no par value per share, will be automatically
converted into one share of Noble Delaware Common Stock, par value $.001 per
share, upon the effective date of the Merger. Each stock certificate
representing issued and outstanding shares of Noble Michigan Common Stock will
continue to represent the same number of shares of Common Stock of Noble
Delaware. IT WILL NOT BE NECESSARY FOR SHAREHOLDERS TO EXCHANGE THEIR EXISTING
STOCK CERTIFICATES FOR STOCK CERTIFICATES OF NOBLE DELAWARE. However,
shareholders may exchange their certificates if they so choose. The Common Stock
of Noble Michigan is listed for trading on the American Stock Exchange and,
after the Merger, Noble Delaware's Common Stock will continue to be traded on
the American Stock Exchange without interruption, under the same symbol ("NIL")
as the shares of Noble Michigan Common Stock are currently traded.
Under Michigan law, the affirmative vote of a majority of the
outstanding shares of Common Stock of Noble Michigan is required for the
approval of the Merger Agreement and the other terms of the Proposed
Reincorporation. See "Vote Required for the Reincorporation Proposal." The
Proposed Reincorporation has been unanimously approved by the Company's Board of
Directors. If approved by the shareholders, it is anticipated that the Merger
will become effective as soon as practicable (the "Effective Date") following
the Annual Meeting of Shareholders. However, pursuant to the Merger Agreement,
the Merger may be abandoned or the Merger Agreement may be amended by the Board
of Directors (except that the principal terms may not be amended without
shareholder approval) either before or after shareholder approval has been
obtained and prior to the Effective Date if, in the opinion of the Board of
Directors of the Company, circumstances arise which make it inadvisable to
proceed under the original terms of the Merger Agreement. Shareholders of Noble
Michigan will have no appraisal rights with respect to the Merger.
14
<PAGE>
The discussion set forth below is qualified in its entirety by
reference to the Merger Agreement, the Certificate of Incorporation of Noble
Delaware and the Bylaws of Noble Delaware, copies of which are attached hereto
as Appendices A, B and C, respectively.
APPROVAL BY SHAREHOLDERS OF THE PROPOSED REINCORPORATION WILL
CONSTITUTE APPROVAL OF THE MERGER AGREEMENT, THE CERTIFICATE OF INCORPORATION
AND THE BYLAWS OF NOBLE DELAWARE AND ALL PROVISIONS THEREOF.
Vote Required For The Reincorporation Proposal
Approval of the Reincorporation Proposal, which will also constitute
approval of (i) the Merger Agreement, the Certificate of Incorporation and the
Bylaws of Noble Delaware, and (ii) the assumption of Noble Michigan's employee
benefit plans and stock option plan by Noble Delaware, will require the
affirmative vote of the holders of a majority of the outstanding shares of
Common Stock of Noble Michigan entitled to vote.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE FOR THE PROPOSED
REINCORPORATION. THE EFFECT OF AN ABSTENTION OR A BROKER NON-VOTE IS THE SAME AS
THAT OF A VOTE AGAINST THE REINCORPORATION PROPOSAL.
Principal Reason For The Proposed Reincorporation
As the Company plans for the future, the Board of Directors and
management believe that it is essential to be able to draw upon well established
principles of corporate governance in making legal and business decisions. The
prominence and predictability of Delaware corporate law provide a reliable
foundation on which the Company's governance decisions can be based, and the
Company believes that shareholders will benefit from the responsiveness of
Delaware corporate law to their needs and to those of the corporation they own.
Prominence, Predictability and Flexibility of Delaware Law. For many
years Delaware has followed a policy of encouraging incorporation in that state
and, in furtherance of that policy, has been a leader in adopting, construing
and implementing comprehensive, flexible corporate laws responsive to the legal
and business needs of corporations organized under its laws. Many corporations
have chosen Delaware initially as a state of incorporation or have subsequently
changed corporate domicile to Delaware in a manner similar to that proposed by
the Company. Because of Delaware's prominence as the state of incorporation for
many major corporations, both the legislature and courts in Delaware have
demonstrated an ability and a willingness to act quickly and effectively to meet
changing business needs. The Delaware courts have developed considerable
expertise in dealing with corporate issues, and a substantial body of case law
has developed construing Delaware law and establishing public policies with
respect to corporate legal affairs.
Increased Ability to Attract and Retain Qualified Directors. Both
Michigan and Delaware law permit a corporation to include a provision in its
certificate of incorporation which reduces or limits the monetary liability of
directors for breaches of fiduciary duty in certain circumstances. The
increasing frequency of claims and litigation directed against directors and
officers has greatly expanded the risks facing directors and officers of
corporations in exercising their respective duties. The amount of time and money
required to respond to such claims and to defend such litigation can be
substantial. It is the Company's desire to reduce these risks to its directors
and officers and to limit situations in which monetary damages can be recovered
against directors so that the Company may continue to attract and retain
qualified directors who otherwise might be unwilling to serve because of the
risks involved. The Company believes that, in general, Delaware law provides
greater protection to directors than Michigan law and that Delaware case law
regarding a corporation's ability to limit director liability is more developed
and provides more guidance than Michigan law.
Well Established Principles of Corporate Governance. There is
substantial judicial precedent in the Delaware courts as to the legal principles
applicable to measures that may be taken by a corporation
15
<PAGE>
and as to the conduct of the Board of Directors such as under the business
judgment rule and other standards. The Company believes that its shareholders
will benefit from the well established principles of corporate governance that
Delaware law affords.
NO CHANGE IN THE NAME, BOARD MEMBERS, BUSINESS, MANAGEMENT, EMPLOYEE BENEFIT
PLANS OR LOCATION OF PRINCIPAL FACILITIES OF THE COMPANY.
The Reincorporation Proposal will effect only a change in the legal
domicile of the Company and certain other changes of a legal nature which are
described in this Proxy Statement. The Proposed Reincorporation will NOT result
in any change in the name, business, management, fiscal year, assets or
liabilities or location of the principal facilities of the Company. The nine (9)
directors who will be elected at the Annual Meeting of Shareholders will become
the directors of Noble Delaware. All employee benefit, and stock option and
plans of Noble Michigan will be assumed and continued by Noble Delaware, and
each option or right issued pursuant to such plans will automatically be
converted into an option or right to purchase the same number of shares of Noble
Delaware Common Stock, at the same price per share, upon the same terms, and
subject to the same conditions. Shareholders should note that approval of the
Reincorporation Proposal will also constitute approval of the assumption of
these plans by Noble Delaware. Other employee benefit arrangements of Noble
Michigan will also be continued by Noble Delaware upon the terms and subject to
the conditions currently in effect. As noted above, after the Merger the shares
of Common Stock of Noble Delaware will continue to be traded, without
interruption, on the same exchange (the American Stock Exchange) and under the
same symbol ("NIL") as the shares of Common Stock of Noble Michigan are
currently traded. The Company believes that the Proposed Reincorporation will
not affect any of its material contracts with any third parties and that Noble
Michigan's rights and obligations under such material contractual arrangements
will continue and be assumed by Noble Delaware.
Anti-takeover Implications
Delaware, like many other states, permits a corporation to adopt a
number of measures designed to reduce a corporation's vulnerability to
unsolicited takeover attempts through amendment of the corporate charter or
bylaws or otherwise. The Reincorporation Proposal is NOT being proposed in order
to prevent such a change in control and the Board of Directors is not aware of
any present attempt to acquire control of the Company or to obtain
representation on the Board of Directors.
In the discharge of its fiduciary obligations to its shareholders, the
Board of Directors has evaluated the Company's vulnerability to potential
unsolicited bidders. In the course of such evaluation, the Board of Directors of
the Company has considered or may consider in the future certain defensive
strategies designed to enhance the Board's ability to negotiate with an
unsolicited bidder. These strategies include, but are not limited to, the
adoption of a severance plan for its management and key employees which becomes
effective upon the occurrence of a change in control of the Company, the
establishment of a staggered board of directors, the elimination of the right to
remove a director other than for cause and the authorization of preferred stock,
the rights and preferences of which may be determined by the Board of Directors.
Other than the authorization of preferred stock (which will continue in Noble
Delaware following the Proposed Reincorporation), and the establishment of a
staggered Board of Directors none of these measures has been previously adopted
by Noble Michigan and none is contemplated as part of the Proposed
Reincorporation. It should also be noted that the establishment of a classified
board of directors also can be undertaken under Michigan law in certain
circumstances. For a detailed discussion of all of the changes which will be
implemented as part of the Proposed Reincorporation, see "The Charters and
Bylaws of Noble Michigan and Noble Delaware" and "Significant Difference Between
the Corporation Laws of Michigan and Delaware -- Indemnification and Limitation
of Liability" below.
Certain effects of the Reincorporation Proposal may be considered to
have anti-takeover implications. Section 203 of the Delaware General Corporation
Law, from which Noble Delaware does not intend to opt out, restricts certain
"business combinations" with "interested stockholders" for three years following
the date that a person becomes an interested stockholder, unless the Board of
Directors
16
<PAGE>
approves the business combination. See "Significant Differences Between the
Corporation Laws of Michigan and Delaware -- Stockholder Approval of Certain
Business Combinations".
The Board of Directors believes that unsolicited takeover attempts may
be unfair or disadvantageous to the Company and its shareholders because, among
other reasons: (i) a non-negotiated takeover bid may be timed to take advantage
of temporarily depressed stock prices; (ii) a non-negotiated takeover bid may be
designed to foreclose or minimize the possibility of more favorable competing
bids or alternative transactions; (iii) a non-negotiated takeover bid may
involve the acquisition of only a controlling interest in the corporation's
stock without affording all shareholders the opportunity to receive the same
economic benefits; and (iv) certain of the Company's contractual arrangements
provide that they may not be assigned pursuant to a transaction which results in
a "change of control" of the Company without the prior written consent of the
licensor or other contracting party.
By contrast, in a transaction in which a potential acquirer must
negotiate with an independent board of directors, the board can and should take
account of the underlying and long-term values of the Company's business,
technology and other assets, the possibilities for alternative transactions on
more favorable terms, possible advantages from a tax-free reorganization,
anticipated favorable developments in the Company's business not yet reflected
in the stock price and equality of treatment of all shareholders.
Despite the belief of the Board of Directors as to the benefits to
shareholders of the Reincorporation Proposal, it may be disadvantageous to the
extent that it has the effect of discouraging a future takeover attempt which is
not approved by the Board of Directors, but which a majority of the shareholders
may deem to be in their best interests or in which shareholders may receive
substantial premium for their shares over the then current market value or over
their cost basis in such shares. As a result of such effects of the
Reincorporation Proposal, shareholders who might wish to participate in an
unsolicited tender offer may not have an opportunity to do so. In addition, to
the extent that provisions of Delaware law enable the Board of Directors to
resist a takeover or a change in control of the Company, such provisions could
make it more difficult to change the existing Board of Directors and management.
The Charters and Bylaws of Noble Michigan and Noble Delaware
The provisions of the Noble Delaware Certificate of Incorporation and
Bylaws are similar to those of the Noble Michigan Articles of Incorporation and
Bylaws in almost all respects. The only material difference is the establishment
of a staggered Board of Directors. The Company is also separately seeking
shareholder approval to create a classified board of directors, see "Proposal
No. 3 -- Approval of a Classified Board of directors" below. However, while the
Company has no present intention to do so, Noble Delaware could in the future
implement certain other changes by amendment of its Certificate of Incorporation
or Bylaws. For a discussion of such changes, see "Significant Differences
Between the Corporation Laws of Michigan and Delaware". This discussion of the
Certificate of Incorporation and Bylaws of Noble Delaware is qualified by
reference to Appendices B and C hereto, respectively.
Authorized Capital Stock. The Articles of Incorporation of Noble
Michigan currently authorize the Company to issue up to 20,000,000 shares of
Common Stock and 150,000 shares of Preferred Stock. The Certificate of
Incorporation of Noble Delaware provides for 20,000,000 authorized shares of
Common Stock, par value $.001 per share, and 150,000 shares of Preferred Stock,
par value $10.00 per share. Like Noble Michigan's Articles of Incorporation,
Noble Delaware's Certificate of Incorporation provides that the Board of
Directors is entitled to determine the powers, preferences and rights, and the
qualifications, limitations or restrictions, of the authorized and unissued
Preferred Stock.
Monetary Liability of Directors. The Articles of Incorporation of Noble
Michigan and the Certificate of Incorporation of Noble Delaware both provide for
the elimination of personal monetary liability of directors to the fullest
extent permissible under the law of the respective states. For a more detailed
explanation of the foregoing, see "Significant Differences Between the
Corporation Laws of Michigan and Delaware -- Indemnification and Limitation of
Liability."
17
<PAGE>
Power to Call Special Shareholders' Meetings. Under Michigan law, a
special meeting of shareholders may be called by the Board of Directors, or by
officers, directors or shareholders as provided in the bylaws. Under Noble
Michigan's Bylaws, a special meeting of shareholders may be called only by the
Board of Directors. Under Delaware law, a special meeting of shareholders may be
called by the board of directors or any other person authorized to do so in the
certificate of incorporation or the bylaws. The Bylaws of Noble Delaware
authorize the Board of Directors, the Chairman of the Board or the President to
call a special meeting of shareholders. Holders of 10% or more of the voting
shares of the Company will not be able to call a special meeting of
shareholders. The Company believes that maintaining this power is a prudent
corporate governance measure to prevent an inappropriately small number of
shareholders from prematurely forcing shareholder consideration of a proposal
over the opposition of the Board of Directors by calling a special shareholders'
meeting before (i) the time that the Board believes such consideration to be
appropriate or (ii) the next annual meeting (provided that the holders meet the
notice requirements for consideration of a proposal). Such special meetings
would involve substantial expense and diversion of board and management time
which the Company believes to be inappropriate for an enterprise the size of the
Company. No change is contemplated on the procedures to call a special
shareholders' meeting, although in the future the Board of Directors could amend
the Bylaws of Noble Delaware without shareholder approval.
Actions By Written Consent of Shareholders. Under Michigan and Delaware
law, shareholders may execute an action by written consent in lieu of a
shareholder meeting. Both Michigan and Delaware law permit a corporation to
eliminate such action by written consent in its charter or bylaws. The Company's
Bylaws eliminate shareholders actions by written consent. Noble Delaware's
Bylaws have also eliminated the ability of shareholders to act by written
consent.
Filling Vacancies on the Board of Directors. Under Michigan law, any
vacancy on the Board of Directors may be filled by the Board. If the number of
directors is less than a quorum, a vacancy may be filled by the unanimous
written consent of the directors then in office, by the affirmative vote of a
majority of the directors at a meeting held pursuant to notice or waivers of
notice or by a sole remaining director. Under Delaware law, vacancies and newly
created directorships may be filled by a majority of the directors then in
office (even though less than a quorum) or by a sole remaining director, unless
otherwise provided in the certificate of incorporation or bylaws (or unless the
certificate of incorporation directs that a particular class of stock is to
elect such director(s), in which case a majority of the directors elected by
class, or a sole remaining director so elected, shall fill such vacancy or newly
created directorship). The Bylaws of Noble Delaware provide, consistent with the
Bylaws of Noble Michigan, that any vacancy created by the removal of a director
by the shareholders of Noble Delaware may be filled by the remaining directors
or by the shareholders.
Nominations of Director Candidates and Introduction of Business at
Shareholder Meetings. The Bylaws of Noble Delaware include an advance notice
procedure similar to that included in the Bylaws of Noble Michigan with regard
to the nomination, other than by or at the direction of the Board of Directors,
of candidates for election as directors (the "Nomination Procedure") and with
regard to certain matters to be brought before an annual meeting or special
meeting of shareholders (the "Business Procedure").
The Nomination Procedure provides that only persons nominated by or at
the direction of the Board of Directors or by a shareholder who has given timely
written notice to the Company prior to the meeting will be eligible for election
as directors. The Business Procedure provides that at an annual or special
meeting, and subject to any other applicable requirements, only such business
may be conducted as has been brought before the meeting by or at the direction
of the Board of Directors or by a shareholder who has given timely written
notice to the Company of such shareholder's intention to bring such business
before the meeting. In all cases, to be timely, notice must be received by the
Company not fewer than 120 days prior to the meeting.
Under the Nomination Procedure, a shareholder's notice to the Company
must contain certain information about the nominee, including name, address, the
consent to be nominated and such other information as would be required to be
included in a proxy statement soliciting proxies for the election of
18
<PAGE>
the proposed nominee, and certain information about the shareholder proposing to
nominate that person, including name, address, representation that the
shareholder is a holder of record of stock entitled to vote at the meeting and a
description of all arrangements or understandings between the shareholder and
each nominee. Under the Business Procedure, notice relating to the conduct of
business at a meeting other than the nomination of directors must contain
certain information about the business and about the shareholder who proposes to
bring the business before the meeting. If the chairman or other officer
presiding at the meeting determines that a person was not nominated in
accordance with the Nomination Procedure, such person will not be eligible for
election as a director. Nothing in the Nomination Procedure or the Business
Procedure will preclude discussion by any shareholder of any nomination or
business properly made or brought before an annual or special meeting in
accordance with the above-described procedures.
By requiring advance notice of nominations by shareholders, the
Nomination Procedure affords the Board of Directors an opportunity to consider
the qualifications of the proposed nominees and, to the extent deemed necessary
or desirable by the Board, to inform the shareholders about such qualifications.
By requiring advance notice of proposed business, the Business Procedure
provides the Board with an opportunity to inform shareholders of any business
proposed to be conducted at a meeting and the Board's position on any such
proposal, enabling shareholders to better determine whether they desire to
attend the meeting or grant a proxy to the Board of Directors as to the
disposition of such business. Although the Noble Delaware Bylaws like the Noble
Michigan Bylaws do not give the Board any power to approve or disapprove
shareholder nominations for the election of directors or any other business
desired by shareholders to be conducted at a meeting, the Noble Delaware Bylaws,
like the Noble Michigan Bylaws, may have the effect of precluding a nomination
for the election of directors or of precluding any other business at a
particular meeting if the proper procedures are not followed. In addition, the
procedures may discourage or deter a third party from conducting a solicitation
of proxies to elect its own slate of directors or otherwise attempting to obtain
control of the Company, even if the conduct of such business or such attempt
might be deemed to be beneficial to the Company and its shareholders.
Significant Differences Between the Corporation Laws of Michigan and Delaware
The following provides a summary of the major substantive differences
between the corporation laws of Michigan and Delaware. It is not an exhaustive
description of all differences between the two states' laws.
Stockholder Approval of Certain Business Combinations
Delaware. Under Section 203 of the Delaware General Corporation Law
("DGCL"), a Delaware corporation is prohibited from engaging in a "business
combination" with an "interested stockholder" for three years following the date
that such person or entity becomes an interested stockholder. With certain
exceptions, an interested stockholder is a person or entity who or which owns,
individually or with or through certain other persons or entities, fifteen
percent (15%) or more of the corporation's outstanding voting stock (including
any rights to acquire stock pursuant to an option, warrant, agreement,
arrangement or understanding, or upon the exercise of conversion or exchange
rights, and stock with respect to which the person has voting rights only). The
three-year moratorium imposed by Section 203 on business combinations does not
apply if (i) prior to the date on which such stockholder becomes an interested
stockholder the Board of Directors of the subject corporation approves either
the business combination or the transaction that resulted in the person or
entity becoming an interested stockholder; (ii) upon consummation of the
transaction that made him or her an interested stockholder, the interested
stockholder owns at least eighty-five percent (85%) of the corporation's voting
stock outstanding at the time the transaction commenced (excluding for purposes
of determining the number of shares outstanding those shares owned by directors
who are also officers of the subject corporation and shares held by employee
stock plans that do not give employee participants the right to decide
confidentially whether to accept a tender or exchange offer); or (iii) on or
after the date such person or entity becomes an interested stockholder, the
Board of Directors approves the business combination and it is also approved at
a stockholder meeting by sixty-six and two-thirds percent (66 2/3%) of the
outstanding voting stock not owned by the interested stockholder. Although a
Delaware corporation to which Section 203
19
<PAGE>
applies may elect not to be governed by Section 203, the Board of Directors of
the Company intends that the Company be governed by Section 203. The Company
believes that most Delaware corporations have availed themselves of this statute
and have not opted out of Section 203.
The Company believes that Section 203 will encourage any potential
acquirer to negotiate with the Company's Board of Directors. Section 203 also
might have the effect of limiting the ability of a potential acquirer to make a
two-tiered bid for Noble Delaware in which all shareholders would not be treated
equally. Shareholders should note, however, that the application of Section 203
to Noble Delaware will confer upon the Board of Directors the power to reject a
proposed business combination in certain circumstances, even though a potential
acquirer may be offering a substantial premium for Noble Delaware's shares over
the then-current market price. Section 203 would also discourage certain
potential acquirers unwilling to comply with its provisions.
Michigan. The Company is currently governed by Chapters 7A and 7B of
the Michigan Business Corporation Act ("MBCA"). Chapter 7A of the MBCA provides
that business combinations between a Michigan corporation which is subject to
Chapter 7A and a beneficial owner of 10% or more of the voting power of such
corporation require an advisory statement from the board of directors and the
approval by an affirmative vote of at least 90% of the votes of each class of
stock entitled to be cast and at least 2/3 of the votes of each class of stock
entitled to be cast other than shares owned by such 10% owner. Such requirements
will not apply if (i) the corporation's board of directors approves the
transaction prior to the time that the 10% owner becomes such or (ii) the
transaction satisfies certain fairness standards, certain other conditions are
met and the 10% owner has been such for at least five years.
Chapter 7B of the MBCA provides that, "control shares" of a corporation
subject to Chapter 7B that are acquired in a control share acquisition have no
voting rights except as granted by the corporation. "Control shares" are shares
that, when added to all shares previously owned by a shareholder, increase such
shareholder's voting stock to 20% or more, 33-1/3% or more or a majority of the
outstanding voting power of the corporation. A control share acquisition must be
approved by a majority of the votes cast by the corporation's shareholders
entitled to vote, excluding shares owned by the acquirer and certain officers
and directors. Delaware law has no similar provision.
Classified Board of Directors.
A classified board of directors is one on which a certain number, but
not all, of the directors are elected on a rotating basis each year.
Delaware. Delaware law permits, but does not require, a classified
board of directors, pursuant to which the directors can be divided into as many
as three (3) classes with staggered terms of office, with only one class of
directors standing for election each year. The Noble Delaware Certificate of
Incorporation and Bylaws provide for a classified Board of Directors with three
(3) classes of directors (the "Classified Board Provision").
Under the Classified Board Provision, the Board of Directors would be
divided into three (3) classes, designated Class I, Class II and Class III. All
directors in Class I would hold office until the first annual meeting of
shareholders following the implementation of the Classified Board Provision upon
the filing of the Certificate of Incorporation; all directors in Class II would
hold office until the second annual meeting of shareholders following such
implementation of the Classified Board Provision; and all directors in Class III
would hold office until the third annual meeting of the shareholders following
such implementation of the Classified Board Provision and, in each case, until
their successors are duly elected and qualified or until their earlier
resignation, removal from office or death. As a result, only one class of
directors will be elected at each annual meeting of shareholders, with the
remaining classes continuing their two-year and three-year terms until the
successors are duly elected and qualified or until earlier resignation, removal
from office or death.
If the Reincorporation Proposal is adopted, the directors of Noble
Delaware who are also the current directors of the Company will be divided into
classes as follows:
20
<PAGE>
Name Class
--------------------- ---------
Daniel W. Sampson Class I
Jonathan P. Rye Class I
Richard K. Mastain Class I
Michael R. Hottinger Class II
Lloyd P. Jones, III Class II
Daniel J. McEnroe Class II
Mark T. Behrman Class III
Robert J. Skandalaris Class III
Anthony R. Tersigni Class III
By approving the Reincorporation Proposal, shareholders will be
approving the Classified Board Provision, the election of the same directors as
would be elected to the Board of Directors of the Company in the event that
Proposal Three is approved by the shareholders, and the initial classification
of directors set forth above.
Classification of directors is likely to provide the Board of Directors
with greater continuity and experience, since normally at least one member of
the Board of Directors would be in such member's second year of service and at
least one member of the Board of Directors would be in such member's third year
of service. Although the Board of Directors is not aware of any problems
experienced by the Company in the past with respect to continuity of and
stability of leadership and policy, the Board of Directors believes that a
classified Board of Directors could decrease the likelihood of such problems
arising in the future.
Adoption of the Classified Board Provisions may significantly extend
the time required to elect a new majority to the Board of Directors. Presently,
the Company's Bylaws allows a change in control of the Board of Directors by a
majority of the Company's shareholders at a single annual meeting or special
meeting of shareholders. With the Classified Board Provision, unless directors
are removed, it will require at least two annual meetings of shareholders for a
majority of shareholders that is less than a two-thirds majority to make a
change in control of the Board of Directors, since only a minority of the
directors will be elected at each meeting. A significant effect of a classified
Board of Directors may be to deter hostile takeover attempts because an acquirer
would experience delay in replacing a majority of the directors. However, a
classified Board of Directors will also make it more difficult for shareholders
to effect a change in control of the Board of Directors, even if such change in
control is sought due to dissatisfaction with the performance of the Company's
directors.
The existence of a classified Board may deter so-called "creeping
acquisitions" in which a person or group seeks to acquire: (i) a controlling
position without paying a normal control premium to the selling shareholders;
(ii) a position sufficient to exert control over the Company through a proxy
contest or otherwise; or (iii) a block of stock with a view toward attempting to
promote a sale or liquidation or a repurchase by the Company of the block at a
premium, or an exchange of the block for assets of the Company. Faced with a
classified Board of Directors, such a person or group would have to assess
carefully its ability to control or influence the Company. If free of the
necessity to act in response to an immediately threatened change in control, the
Board of Directors can act in a more careful and deliberative manner to make and
implement appropriate business judgments in response to a creeping acquisition.
Michigan. Under the MBCA, a corporation generally may provide for a
classified board of directors by adopting amendments to its articles of
incorporation or bylaws, which amendments must be approved by the shareholders.
The Noble Michigan Articles of Incorporation and Bylaws do not currently provide
for a classified board.
Removal of Directors.
Under both Delaware and Michigan law, any director or the entire board
of directors of a corporation that does not have a classified board of directors
or cumulative voting may be removed with or without cause with the approval of a
majority of the outstanding shares entitled to vote at an election of
21
<PAGE>
directors. In the case of a Delaware or Michigan corporation having cumulative
voting, if less than the entire board is to be removed, a director may not be
removed without cause if the number of shares voted against such removal would
be sufficient to elect the director under cumulative voting.
Noble Delaware's Certificate of Incorporation and Bylaws provide that
the Company's directors can be removed for cause by the affirmative vote of the
holders of a majority of the combined voting power of the then outstanding
shares of capital stock of the Company entitled to vote generally in the
election of directors voting as a single class. The term "cause" with respect to
the removal of directors is not defined in the DGCL and its meaning has not been
precisely delineated by the Delaware courts. Noble Delaware's Certificate of
Incorporation and Bylaws provide that the Company's directors may not be removed
without cause.
Indemnification and Limitation of Liability
Michigan and Delaware have similar laws respecting indemnification by a
corporation of its officers, directors, employees and other agents. The laws of
both states also permit, with certain exceptions, a corporation to adopt charter
provisions eliminating the liability of a director to the corporation or its
shareholders for monetary damages for breach of the director's fiduciary duty.
There are nonetheless certain differences between the laws of the two states
respecting indemnification and limitation of liability which are summarized
below.
Delaware. The Noble Delaware Certificate of Incorporation would
eliminate the liability of directors to the corporation or its shareholders for
monetary damages for breach of fiduciary duty as a director to the fullest
extent permissible under Delaware law, as such law exists currently and as it
may be amended in the future. Under Delaware law, such provision may not
eliminate or limit director monetary liability for: (a) any breach of the
director's duty of loyalty to the corporation or its shareholders; (b) acts or
omissions not in good faith or involving intentional misconduct or knowing
violations of law; (c) the payment of unlawful dividends or unlawful stock
repurchases or redemptions; or (d) any transactions in which the director
received an improper personal benefit. Such limitation of liability provisions
also may not limit a director's liability for violation of, or otherwise relieve
the Company or its directors from the necessity of complying with federal or
state securities laws, or affect the availability of nonmonetary remedies such
as injunctive relief or rescission.
Michigan. The Articles of Incorporation of the Company currently limit
the liability of directors to the corporation or its shareholders to the fullest
extent permitted by Michigan law. Directors are not personally liable to the
Company or its shareholders for monetary damages for breach of fiduciary duty as
a director, except for: (i) the amount of a financial benefit received by a
director to which he or she is not entitled; (ii) intentional infliction of harm
on the corporation or the shareholders; (iii) the payment of unlawful dividends
or unlawful stock repurchases or redemptions or loans to directors, officers or
employees contrary to Michigan law; or (iv) an intentional criminal act. A
Michigan corporation, unlike a Delaware corporation, can reimburse expenses
incurred in and amounts paid in settlement of a derivative action. Only expenses
can be reimbursed for a settled derivative lawsuit in Delaware.
Indemnification Compared and Contrasted.
Michigan law requires indemnification when the individual has defended
successfully the action on the merits while Delaware law requires
indemnification whether there has been a successful or unsuccessful defense on
the merits or otherwise. Delaware law generally permits indemnification of
expenses, including attorneys' fees, actually and reasonably incurred in the
defense or settlement of a derivative or third-party action, provided there is a
determination by a majority vote of a disinterested quorum of the directors, by
independent legal counsel or by a majority of the shareholders that the person
seeking indemnification acted in good faith and in a manner reasonably believed
to be in the best interests of the corporation. Without court approval, however,
no indemnification may be made in respect of any derivative action in which such
person is adjudged liable for negligence or misconduct in the performance of his
or her duty to the corporation. Delaware law requires indemnification of
expenses when the individual being indemnified has successfully defended any
action, claim, issue or matter therein, on the
22
<PAGE>
merits or otherwise.
Expenses incurred by an officer or director in defending an action may
be paid in advance, under Delaware law and Michigan law, if such director or
officer undertakes to repay such amounts if it is ultimately determined that he
or she is not entitled to indemnification. In addition, the laws of both states
authorize a corporation's purchase of indemnity insurance for the benefit of its
officers, directors, employees and agents whether or not the corporation would
have the power to indemnify against the liability covered by the policy.
Michigan law permits a Michigan corporation to provide rights to
indemnification beyond those provided therein to the extent such additional
indemnification is authorized in the corporation's articles of incorporation.
Thus, if so authorized, rights to indemnification may be provided pursuant to
agreements or bylaw provisions which make mandatory the permissive
indemnification provided by Michigan law. Noble Michigan's Bylaws permit
indemnification beyond that expressly mandated by Michigan law and limit
director monetary liability to the extent permitted by Michigan law.
Delaware law also permits a Delaware corporation to provide
indemnification in excess of that provided by statute. By contrast to Michigan
law, Delaware law does not require authorizing provisions in the certificate of
incorporation and does not contain express prohibitions on indemnification in
certain circumstances. Limitations on indemnification may be imposed by a court,
however, based on principles of public policy.
Inspection of Shareholder List.
Delaware law allows any shareholder to inspect the shareholder list for
a purpose reasonably related to such person's interest as a shareholder.
Delaware law provides for inspection rights as to a list of shareholders
entitled to vote at a meeting within a ten day period preceding a shareholders'
meeting for any purpose germane to the meeting. Under the MBCA, the
shareholders' list need only be prepared in time for, and be available for
inspection at, the relevant shareholders' meeting.
Dividends and Repurchases of Shares.
Michigan law dispenses with the concepts of par value of shares as well
as statutory definitions of capital, surplus and the like. The concepts of par
value, capital and surplus exist under Delaware law.
Delaware. Delaware law permits a corporation to declare and pay
dividends out of surplus or, if there is no surplus, out of the net profits for
the fiscal year in which the dividend is declared and/or for the preceding
fiscal year as long as the amount of capital of the corporation following the
declaration and payment of the dividend is not less than the aggregate amount of
the capital represented by the issued and outstanding stock of all classes
having a preference upon the distribution of assets. In addition, Delaware law
generally provides that a corporation may redeem or repurchase its shares only
if the capital of the corporation is not impaired and such redemption or
repurchase would not impair the capital of the corporation.
Michigan. A Michigan corporation may not pay dividends or make any
other distribution to its shareholders if, after giving effect to the payment,
the corporation would not be able to pay its debts as they become due in the
usual course of business, or the corporation's assets would be less than its
liabilities plus, unless the articles of incorporation permit otherwise, the
amount required, if the corporation were to be dissolved at the time of
distribution, to satisfy preferential rights upon dissolution of shareholders
whose preferential rights are superior to those receiving the distribution.
Shareholder Voting.
Both Delaware and Michigan law generally require that a majority of the
shareholders of both acquiring and target corporations approve statutory
mergers.
23
<PAGE>
Delaware. Delaware law does not require a shareholder vote of the
surviving corporation in a merger (unless the corporation provides otherwise in
its certificate of incorporation) if: (a) the merger agreement does not amend
the existing certificate of incorporation; (b) each share of stock of the
surviving corporation outstanding immediately before the effective date of the
merger is an identical outstanding share after the merger; and, (c) either no
shares of common stock of the surviving corporation and no shares, securities or
obligations convertible into such stock are to be issued or delivered under the
plan of merger, or the authorized unissued shares or shares of common stock of
the surviving corporation to be issued or delivered under the plan of merger
plus those initially issuable upon conversion of any other shares, securities or
obligations to be issued or delivered under such plan do not exceed twenty
percent (20%) of the shares of common stock of such constituent corporation
outstanding immediately prior to the effective date of the merger.
Michigan. Michigan law contains a similar exception to its voting
requirements for reorganizations. Unless required by the articles of
incorporation or the transfer of assets is not in the usual and regular course
of business as conducted by the corporation, action by shareholders of the
surviving corporation on a plan of merger is not required if: (i) the articles
of incorporation of the surviving corporation will not differ from its articles
of incorporation before the merger; and, (ii) each shareholder of the surviving
corporation whose shares were outstanding immediately before the effective date
of the merger will hold the same number of shares, with identical designations,
preferences, limitations, and relative rights, immediately after the merger.
Appraisal Rights.
Under both Michigan and Delaware law, a shareholder of a corporation
participating in certain major corporate transactions may, under varying
circumstances, be entitled to appraisal rights pursuant to which such
shareholder may receive cash in the amount of the fair market value of his or
her shares in lieu of the consideration he or she would otherwise receive in the
transaction.
Delaware. Under Delaware law, such fair market value is determined
exclusive of any element of value arising from the accomplishment or expectation
of the merger or consolidation, and such appraisal rights are not available: (a)
with respect to the sale, lease or exchange of all or substantially all of the
assets of a corporation; (b) with respect to a merger or consolidation by a
corporation the shares of which are either listed on a national securities
exchange or are held of record by more 2,000 holders if such shareholders
receive only shares of the surviving corporation or shares of any other
corporation that are either listed on a national securities exchange or held of
record by more than 2,000 holders, plus cash in lieu of fractional shares of
such corporation; or (c) to shareholders of a corporation surviving a merger if
no vote of the shareholders of the surviving corporation is required to approve
the merger under Delaware law.
Michigan. Michigan law excludes appraisal rights for certain corporate
actions (i) where the shares are listed on a national securities exchange or
designated as national market system securities on an interdealer quotation
system by the National Association of Securities Dealers, Inc. and (ii) in
certain transactions where shareholders receive cash or shares that satisfy the
requirements of (i).
Dissolution.
Under Michigan law, shareholders holding fifty percent (50%) or more of
the total voting power may authorize a corporation's dissolution. Under Delaware
law, unless the Board of Directors approves the proposal to dissolve, the
dissolution must be unanimously approved by all the shareholders entitled to
vote thereon. Only if the dissolution is initially approved by the Board of
Directors may the dissolution be approved by a simple majority of the
outstanding shares of the corporation's stock entitled to vote. In the event of
such a board-initiated dissolution, Delaware law allows a Delaware corporation
to include in its certificate of incorporation a supermajority (greater than a
simply majority) voting requirement in connection with dissolutions. Noble
Delaware's Certificate of Incorporation contains no such supermajority voting
requirement.
24
<PAGE>
Interested Director Transactions.
Under both Michigan and Delaware law, certain contracts or transactions
in which one or more of a corporation's directors has an interest are not void
or voidable because of such interest, provided that certain conditions, such as
obtaining the required approval and fulfilling the requirements of good faith
and full disclosure, are met. With certain minor exceptions, the conditions are
similar under Michigan and Delaware law.
Shareholder Derivative Suits.
Under both Michigan and Delaware law, a shareholder may bring a
derivative action on behalf of the corporation only if the shareholder was a
shareholder of the corporation at the time of the transaction in question or if
his or her stock thereafter devolved upon him or her by operation of law.
Certain Federal Income Tax Consequences
Following is a summary of the federal income tax consequences resulting
from the Merger. The Company and Noble Delaware have not requested a private
letter ruling from the Internal Revenue Service as to the federal income tax
consequences of the Merger and, thus, there can be no assurance that the
transaction would constitute a tax-free exchange for federal income tax
purposes.
The Company has been advised, however, that the Merger provided for in
the Merger Agreement would constitute a tax-free reorganization under the
Internal Revenue Code of 1986, as amended (the "Code") and, no gain or loss will
be recognized by the holders of the Company's Common Stock upon conversion of
their shares into Noble Delaware Common Stock. The basis of Noble Delaware
Common Stock received by the Company's shareholders will be the same as the
basis of the Company's Common Stock converted into Noble Delaware Common Stock.
The holding period of the Noble Delaware's Common Stock will include the period
during which the Company's Common Stock converted into Noble Delaware Common
Stock was held, provided that the Company's Common Stock was held as a capital
asset at the time of the Merger.
THE DISCUSSION OF FEDERAL INCOME TAX CONSEQUENCES SET FORTH ABOVE IS
INCLUDED HEREIN FOR INFORMATIONAL PURPOSES ONLY. THE DISCUSSION IS BASED ON
CURRENTLY EXISTING PROVISIONS OF THE CODE, EXISTING OR PROPOSED TREASURY
REGULATIONS THEREUNDER AND CURRENT ADMINISTRATIVE RULINGS AND COURT DECISIONS.
ALL OF THE FOREGOING ARE SUBJECT TO CHANGE AND ANY SUCH CHANGE COULD AFFECT THE
CONTINUING VALIDITY OF THIS DISCUSSION. EACH SHAREHOLDER SHOULD CONSULT HIS OR
HER TAX ADVISER REGARDING THE SPECIFIC TAX CONSEQUENCES OF THE MERGER, INCLUDING
THE APPLICATION AND EFFECT OF STATE AND LOCAL TAX LAWS.
Securities Act Consequences
The shares of Noble Delaware to be issued in exchange for shares of the
Company are not being registered under the Securities Act of 1933, as amended
(the "1933 Act"). In that respect, Noble Delaware is relying on Rule 145(a)(2)
of the Securities Exchange Commission (the "SEC") under the 1933 Act, which
provides that a merger which has as its sole purpose a change in the domicile of
the corporation does not involve the sale of the securities for purposes of the
1933 Act. After the Merger, Noble Delaware will be a publicly held company, its
Common Stock will be traded and it will file with the SEC and provide to its
shareholders the same type of information that the Company has previously filed
and provided. Shareholders whose stock in the Company is freely tradable before
the Merger will continue to have freely tradable shares of Noble Delaware.
Shareholders holding restricted securities of the Company will be subject to the
same restrictions on transfer as those to which their present shares of stock in
the Company are subject. In summary, Noble Delaware and its shareholders will be
in the same respective positions under the federal securities laws after the
Merger as were the Company and its shareholders prior to the Merger.
25
<PAGE>
No Appraisal Rights
Under Section 762 of the MBCA, shareholders of the Company will not be
entitled to dissent and obtain payment of the fair value of their shares from
the Company in connection with the Proposed Reincorporation because the
Company's shares are listed on the American Stock Exchange at the time of the
record date fixed to determine the shareholders entitled to receive notice of
and to vote at the meeting of shareholders held to act upon the Merger
Agreement.
Abandonment
Notwithstanding a favorable vote of the shareholders, the Company
reserves the right by action of the Board of Directors to abandon the Proposed
Reincorporation prior to effectiveness of the Merger if it determines that such
abandonment is in the best interests of the Company. The Board of Directors has
made no determination as to any circumstances which may prompt a decision to
abandon the Proposed Reincorporation.
Required Vote
The affirmative vote of a majority of the Company's issued and
outstanding common stock is required to approve the Reincorporation Proposal.
THE BOARD OF DIRECTORS RECOMMENDS SHAREHOLDERS VOTE FOR APPROVAL OF THIS
PROPOSAL. PROXIES WILL BE VOTED FOR THE APPROVAL OF THE REINCORPORATION PROPOSAL
UNLESS THE SPECIFICATION IS MARKED ON THE PROXY INDICATING THAT AUTHORITY TO DO
SO IS WITHHELD.
26
<PAGE>
ITEM 3: APPROVAL OF A CLASSIFIED BOARD OF DIRECTORS
In the event that the proposal to reincorporate the Company in the
State of Delaware is not approved, the Company's Board of Directors has approved
and recommended that the shareholders of the Company approve an amendment to the
Company's Bylaws to provide for the classification of the Board of Directors
into three classes of Directors with staggered terms of office.
Michigan law permits the Company to amend its Bylaws to provide for a
classified board of directors. The proposed classified board amendment to the
Company's Bylaws would provide that Directors will be classified into three (3)
classes, as nearly equal in number as possible. One class would hold office
initially for a term expiring at the next Annual Meeting of Shareholders; a
second class would hold office initially for a term expiring at the 2001 Annual
Meeting of Shareholders; and another class would hold office initially for a
term expiring at the 2002 Annual Meeting of Shareholders. At each Annual Meeting
following this initial classification and election, the successors to the class
of directors whose terms expire at that meeting would be elected for a term of
office to expire at the third succeeding Annual Meeting after their election,
and until their successors have been duly elected and qualified. Under Michigan
law, directors chosen to fill vacancies on the classified board would hold
office until the next shareholders' meeting at which directors were elected,
even if a new director was filling an unexpired term in a class with more than
one year remaining in its term.
In addition, the proposed amendment provides that directors elected by
the shareholders may only be removed by shareholders for cause. Michigan law
provides that directors may be removed by shareholders with or without cause,
unless the articles of incorporation or bylaws provide that directors may be
removed only with cause. See "Item 1: Election of Directors" for information
regarding the nominees for Directors and the composition of each class of
Directors if this proposal is adopted. If the proposed amendment to the
Company's Bylaws is not approved, or the Reincorporation Proposal is not
approved, the nine nominees to serve as directors will be nominated to serve a
one-year term until the next Annual Meeting of Shareholders and until their
successors are elected and qualified.
Shareholders should be aware that the proposed classified board will
extend the time required to effect a change in control of the Board of Directors
and may discourage hostile takeover bids for the Company. If the Company
implements a classified board of directors, it will take at least three annual
meetings for a majority of shareholders to make a change in control of the Board
of Directors because only one-third of the Directors will be elected at each
annual meeting.
Advantages. The Company's Board of Directors has observed that certain
tactics, including the accumulation of substantial stock positions as a prelude
to an attempted takeover or significant corporate restructuring, have become
relatively common in corporate takeover practice. The Board of Directors is of
the opinion that such tactics can be highly disruptive to a company and can
result in dissimilar treatment of a company's shareholders. The Board of
Directors believes that the classified board proposal will assist the Board of
directors in protecting the interests of the Company's shareholders in the event
of an unsolicited offer to acquire control of the Company. The Board also
believes that making directors removable only for cause will ensure that the
purpose of having a classified board as an anti-takeover measure will not be
circumvented by removing directors without cause. The classified board proposal
is also designed to assure continuity and stability in the Board of Directors'
leadership and policies. Although the Board may review other possible
anti-takeover programs, the Board has no present intention of proposing
additional amendment to the Articles of Incorporation or Bylaws that would
affect the ability of a third party to change control of the Company.
Disadvantages. Because of the additional time required to change
control of the Board of Directors, and the requirement that directors be removed
only for cause, the classified board proposal will tend to perpetuate present
management. In addition, because the classified board proposal will increase the
amount of time required for a takeover bidder to obtain control of the Company
without the cooperation of the Board of Directors, even if the takeover bidder
were to acquire a majority of the Company's outstanding stock, it will tend to
discourage certain tender offers, including some tender offers that shareholders
may feel would be in their best interests. However, the proposal is not intended
as a
27
<PAGE>
takeover-resistive measure in response to a specific threat. The classified
board proposal will also make it more difficult for the Company's shareholders
to change the composition of the Board of Directors even if the shareholders
believe such a change would be desirable. A copy of the proposed amendment to
the Company's Bylaws is attached to this Proxy Statement as Appendix E. THE
BOARD OF DIRECTORS RECOMMENDS A VOTE FOR APPROVAL OF THE PROPOSED AMENDMENT TO
THE COMPANY'S BYLAWS TO CREATE A CLASSIFIED BOARD OF DIRECTORS.
28
<PAGE>
ITEM 4: RATIFICATION OF APPOINTMENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors, upon recommendation of the Audit Committee, has
appointed Grant Thornton LLP as independent public accountants, to audit the
consolidated financial statements of the Company for the year ending December
31, 1999 and to perform other appropriate services as directed by the Company's
management and Board of Directors.
A proposal will be presented at the meeting to ratify the appointment
of Grant Thornton LLP as the Company's independent public accountants. It is
expected that a representative of Grant Thornton LLP will be present at the
Annual Meeting to respond to appropriate questions or to make a statement if he
or she so desires. If the shareholders do not ratify this appointment by the
affirmative vote of a majority of the shares represented in person or by proxy
at the meeting, other independent public accountants will be considered by the
Board of Directors upon recommendation of the Audit Committee.
Vote Required
The ratification of Grant Thornton LLP as the Company's independent
public accountants will require the affirmative vote of the holders of at least
a majority of the outstanding shares of the Company's Common Stock present or
represented at the meeting. The Board of Directors recommends a vote "FOR"
ratification of the appointment of Grant Thornton LLP as the Company's
independent public accountants.
29
<PAGE>
ITEM 5: OTHER MATTERS
Except for the matters referred to in the accompanying Notice of Annual
Meeting, management does not intend to present any matter for action at the
Annual Meeting and knows of no matter to be presented at the meeting that is a
proper subject for action by the shareholders. However, if any other matters
should properly come before the meeting, it is intended that votes will be cast
pursuant to the authority granted by the enclosed Proxy in accordance with the
best judgment of the person or persons acting under the Proxy.
ANNUAL REPORT
The Annual Report to Shareholders covering the Company's fiscal year
ended December 31, 1998 is being mailed to shareholders with this Proxy
Statement. The Company's annual report on Form 10-K under the Securities
Exchange Act of 1934 for the year ended December 31, 1998, including the
financial statements and schedules thereto, which the Company will file with the
Securities and Exchange Commission will be made available to beneficial owners
of the Company's securities upon request. The annual report does not form any
part of the material for the solicitation of the Proxy.
SHAREHOLDER PROPOSALS
Shareholder who intend to have a proposal considered for inclusion in
the Company's proxy materials for presentation at the 2000 Annual Meeting of
Shareholders must submit the proposal to the Company no later than December 6,
1999. Shareholders who intend to present a proposal at the 2000 Annual Meeting
of Shareholders without inclusion of such proposal in the Company's proxy
materials are required to provide notice of such proposal to the Company no
later than February 19, 2000. The Company reserves the right to reject, rule out
of order, or take other appropriate action with respect to any proposal that
does not comply with these and other applicable requirements.
30
<PAGE>
REQUEST TO RETURN PROXIES PROMPTLY
A Proxy is enclosed for your use. Please mark, date, sign and return
the Proxy at your earliest convenience. The Proxy requires no postage if mailed
in the United States in the postage-paid envelope provided.
A prompt return of your Proxy will be appreciated.
By Order of the Board of Directors,
Michael C. Azar,
Secretary
Bloomfield Hills, Michigan
April 1, 1999
31
<PAGE>
Appendix A
[FORM OF]
AGREEMENT AND PLAN OF MERGER
(Reincorporation in Delaware)
THIS AGREEMENT AND PLAN OF MERGER ("Agreement") dated _______ __, 1999,
is entered into between Noble International, Ltd., a Michigan corporation
("Noble-Michigan"), and Noble International, Ltd., a Delaware corporation
("Noble-Delaware"). Noble-Michigan and Noble-Delaware are hereinafter
collectively referred to as the "Constituent Corporations."
R E C I T A L S
---------------
A. Noble-Michigan is a corporation duly organized and existing under
the laws of the State of Michigan;
B. Noble-Delaware is a corporation duly organized and existing under
the laws of the State of Delaware for the sole purpose of effecting the
reincorporation of Noble-Michigan in Delaware in a tax-free reorganization
pursuant to Section 368(a)(1)(F) of the Internal Revenue Code;
C. On the date of this Agreement, Noble-Michigan has authority to issue
20,000,000 shares of common stock, no par value per share ("Noble Common
Stock"), of which 7,153,482 shares are issued and outstanding, and 150,000
shares of preferred stock, no par value per share ("Noble Preferred Stock"), of
which no shares are issued and outstanding;
D. On the date of this Agreement, Noble-Delaware has authority to issue
20,000,000 shares of common stock, $.001 par value per share ("Delaware Common
Stock"), of which 1,000 shares are issued and outstanding and owned by
Noble-Delaware, and 150,000 shares of preferred stock, $10.00 par value per
share ("Delaware Preferred Stock"), of which no shares are issued and
outstanding;
E. The Boards of Directors of Noble-Michigan and Noble-Delaware have
determined that it is advisable and in the best interest of their respective
corporations that Noble-Michigan merge with and into Noble-Delaware upon the
terms and subject to the conditions set forth in this Agreement for the purpose
of effecting the change of the state of incorporation of Noble-Michigan from
Michigan to Delaware;
F. The respective Boards of Directors of Noble-Michigan and
Noble-Delaware have, by resolutions duly adopted by Unanimous Written Consent,
approved this Agreement; and
G. Noble-Michigan has approved this Agreement as the sole stockholder
of Noble-Delaware and the Board of Directors of Noble-Michigan has directed that
this Agreement be submitted to a vote of its shareholders;
A-1
<PAGE>
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Noble-Michigan and Noble-Delaware hereby agree as follows:
1. Merger. Noble-Michigan shall be merged with and into Noble-Delaware
(the "Merger"), and Noble-Delaware shall be the surviving corporation
(hereinafter sometimes referred to as the "Surviving Corporation"). The Merger
shall become effective upon the date and at the time of filing of an appropriate
certificate of merger, providing for the Merger, with the Secretary of State of
the State of Delaware (the "Effective Time"). Articles of Merger shall also be
filed with the Michigan Department of Consumer and Industry Services,
Corporation, Securities and Land Development Bureau.
2. Governing Documents. The Certificate of Incorporation of
Noble-Delaware, as in effect immediately prior to the Effective Time, shall be
the Certificate of Incorporation of the Surviving Corporation as thereafter
amended in accordance with the provisions thereof and applicable laws. The
bylaws of Noble-Delaware, as in effect immediately prior to the Effective Time,
shall be the bylaws of the Surviving Corporation, without change or amendment
until thereafter amended in accordance with the provisions thereof, the
provisions of the Certificate of Incorporation of the Surviving Corporation and
applicable laws.
3. Succession. At the Effective Time, the separate corporate existence
of Noble-Michigan shall cease, and Noble-Delaware shall possess all the rights,
privileges, powers and franchises both of a public as well as of a private
nature, and shall be subject to all the restrictions, liabilities and duties of
each of the Constituent Corporations; and all singular rights, privileges,
powers and franchises of each of the Constituent Corporations, shall be vested
in the Surviving Corporation and all property, rights, privileges, powers and
franchises, and all and every other interest, shall be transferred to and vested
in the Surviving Corporation, and the title to any real estate vested by deed or
otherwise in either of such Constituent Corporations shall not revert or be in
any way impaired by reason of the Merger, but all rights of creditors and all
liens upon any property of Noble-Michigan shall be preserved unimpaired. To the
extent permitted by law, any claim existing or action or proceeding pending by
or against either of the Constituent Corporations may be prosecuted as if the
Merger had not taken place. All debts, liabilities and duties of the respective
Constituent Corporations shall thenceforth attach to the Surviving Corporation
and may be enforced against it to the same extent as if such debts, liabilities
and duties had been incurred or contracted by it. All corporate acts, plans,
policies, agreements, arrangements, approvals and authorizations of
Noble-Michigan, its shareholders, Board of Directors and committees thereof,
officers and agents which were valid and effective immediately prior to the
Effective Time, shall be taken for all purposes as the acts, plans, policies,
agreements, arrangements, approvals and authorizations of the Surviving
Corporation and shall be as effective and binding thereon as the same were with
respect to Noble-Michigan. The employees and agents of Noble-Michigan shall
become the employees and agents of the Surviving Corporation and continue to be
entitled to the same rights and benefits which they enjoyed as employees and
agents of Noble-Michigan, subject to the same limitations with respect thereto.
The requirements of any plans or agreements of Noble-Michigan involving the
issuance or purchase by Noble-Michigan of certain shares of its capital stock
shall be satisfied by the issuance or purchase of a like number of shares of the
Surviving Corporation.
4. Directors and Officers. The directors and officers of Noble-Michigan
at the Effective Time shall be and become directors and officers, holding the
same titles and positions, of the Surviving Corporation at the Effective Time,
and after the Effective Time shall serve in accordance with the bylaws of the
Surviving Corporation.
5. Further Assurances. From time to time, as and when required by the
Surviving Corporation or by its successors or assigns, there shall be executed
and delivered on behalf of Noble-Michigan such deeds and other instruments, and
there shall be taken or caused to be taken by it all such
A-2
<PAGE>
further and other actions, as shall be appropriate, advisable or necessary in
order to vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation the title to and possession of all property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of
Noble-Michigan, and otherwise to carry out the purposes of this Agreement, and
the officers and directors of the Surviving Corporation are fully authorized in
the name and on behalf of Noble-Michigan or otherwise, to take any and all such
action and to execute and deliver any and all such deeds and other instruments.
6. Conversion of Shares. At the Effective Time, by virtue of the Merger
and without any action on the part of the holder thereof:
(a) each share of Noble Common Stock outstanding immediately
prior to the Effective Time shall be changed and converted into one (1) fully
paid and non-assessable share of Delaware Common Stock; and
(b) the 1,000 shares of Delaware Common Stock presently issued
and outstanding in the name of Noble-Michigan shall be canceled and retired and
resume the status of authorized and unissued shares of Delaware Common Stock,
and no shares of Delaware Common Stock or other securities of Noble-Delaware
shall be issued in respect thereof.
7. Warrants. Each warrant to purchase shares of Noble Common Stock
which is outstanding at the Effective Time shall, by virtue of the Merger and
without any action on the part of the holder thereof, be converted into and
become a warrant to purchase shares of Delaware Common Stock upon the terms and
subject to the conditions and adjustments as set forth in such warrant and in
the resolutions authorizing such warrants, as in effect immediately prior to the
Effective Time. The same number of shares of Delaware Common Stock shall be
reserved for purposes of the warrants as is equal to the number of shares of
Noble Common Stock so reserved as of the Effective Time.
8. Options. Each option to purchase shares of Noble Common Stock which
is outstanding at the Effective Time shall, by virtue of the Merger and without
any action on the part of the holder hereof, be converted into and become an
option to purchase shares of Delaware Common Stock upon the terms and subject to
the same conditions and adjustments as in effect in such option immediately
prior to the Effective Time. The same number of shares of Delaware Common Stock
shall be reserved for purposes of the options as is equal to the number of
shares of Noble Common Stock so reserved as of the Effective Time.
9. Other Employee Benefit Plans. At the Effective Time, the obligations
of Noble-Michigan under or with respect to every plan, trust, program and
benefit then in effect or administered by Noble-Michigan on behalf or for the
benefit of the officers and employees of Noble-Michigan, including plans,
trusts, programs and benefits administered by Noble-Michigan in which
subsidiaries of Noble-Michigan, their officers and employees currently are
permitted to participate (the "Employee Benefit Plans"), shall become the lawful
obligations of Noble-Delaware and shall be implemented and administered in the
same manner and without interruption until the same are amended or otherwise
lawfully altered or terminated. Effective at the Effective Time, Noble-Delaware
hereby expressly adopts and assumes all obligations of Noble-Michigan under and
with respect to all Employee Benefit Plans.
10. Condition to Merger. The Merger shall have received the requisite
approval of the holders of Noble Common Stock pursuant to the Michigan Business
Corporation Act.
11. Stock Certificates. At and after the Effective Time, all of the
outstanding certificates which, immediately prior to the Effective Time,
represented shares of Noble Common Stock shall be deemed for all purposes to
evidence ownership of, and to represent, as the case may be, shares of Delaware
Common Stock into which the shares of Noble Common Stock, formerly represented
by such certificates, have been converted as herein provided.
12. Amendment. Subject to applicable law, this Agreement may be
amended, modified or supplemented by written agreement of the parties hereto at
any time prior to the Effective Time with
A-3
<PAGE>
respect to any of the terms contained herein; provided, however, that no such
amendment, modification or supplement not adopted and approved by the
shareholders of Noble-Michigan and Noble-Delaware shall affect the rights of the
shareholders of either or both such corporations in a manner which is materially
adverse to the shareholders of either or both such corporations.
13. Abandonment. At any time prior to the Effective Time, this
Agreement may be terminated and the Merger may be abandoned by the Boards of
Directors of either Noble-Michigan or Noble-Delaware, notwithstanding approval
of this Agreement by the sole stockholder of Noble-Delaware or by the
shareholders of Noble-Michigan, or both, if in the opinion of such Boards of
Directors, the Merger is for any reason inadvisable.
14. Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the parties and their respective successors and assigns;
provided, however, that this Agreement may not be assigned to any party without
the prior written consent of the other party hereto.
IN WITNESS WHEREOF, Noble-Michigan and Noble-Delaware have caused this
Agreement to be signed by their respective duly authorized officers as of the
date first above written.
NOBLE INTERNATIONAL, LTD.,
a Michigan corporation
By:
-------------------------------
Robert J. Skandalaris,
Chief Executive Officer
ATTEST:
By:
-------------------------------
Michael C. Azar,
Secretary
NOBLE INTERNATIONAL, LTD.,
a Delaware corporation
By:
-------------------------------
Robert J. Skandalaris,
Chief Executive Officer
ATTEST:
By:
-------------------------------
Michael C. Azar,
Secretary
A-4
<PAGE>
Appendix B
[FORM OF]
CERTIFICATE OF INCORPORATION
OF
NOBLE INTERNATIONAL, LTD.
ARTICLE I
Name of Corporation
The name of this corporation is Noble International, Ltd.
ARTICLE II
Registered Office and Agent
The address of the registered office of the corporation in the State of
Delaware is 1013 Centre Road in the City of Wilmington, County of New Castle,
and the name of its registered agent at that address is Corporation Service
Company.
ARTICLE III
Purpose
The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
ARTICLE IV
Authorized Capital Stock
This corporation is authorized to issue two classes of shares
designated respectively "Common Stock" and "Preferred Stock" and referred to
herein as Common Stock or Common Shares and Preferred Stock or Preferred Shares,
respectively. The total number of shares of Common Stock this corporation is
authorized to issue is 20,000,000 and each such share shall have a par value of
$.001, and the total number of shares of Preferred Stock this corporation is
authorized to issue is 150,000 and each such share shall have a par value of
$10.00. The Preferred Shares may be issued from time to time in one or more
series. The board of directors is authorized to fix the number of shares of any
series of Preferred Shares and to determine the designation of any such series.
The board of directors is also authorized to determine or alter the rights,
preferences, privileges and restrictions granted to or imposed upon any
privileges and restrictions granted to or imposed upon any wholly unissued
series of Preferred Shares and, within the limits and restrictions stated in any
resolution or resolutions of the board of directors originally fixing the number
of shares constituting any series, to increase or decrease (but not below the
number of shares of any such series then outstanding) the number of shares of
any series subsequent to the issue of shares of that series.
ARTICLE V
Incorporator
The incorporator is Teresa Tormey Fineman, Esq., 500 Newport Center
Drive, Suite 700, Newport Beach, California 92660.
B-1
<PAGE>
ARTICLE VI
Limitation of Director Liability
To the fullest extent permitted by the Delaware General Corporation Law
as the same exists or may hereafter be amended, a director of this corporation
shall not be liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director.
ARTICLE VII
Perpetual Existence
The corporation is to have perpetual existence.
ARTICLE VIII
Stockholder Meetings
Meetings of stockholders may be held within or without the State of
Delaware, as the bylaws may provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the bylaws of the corporation.
ARTICLE IX
Bylaws
In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, repeal, alter,
amend and rescind the bylaws of this corporation, subject to any limitations
expressed in such bylaws.
ARTICLE X
Amendment of Certificate of Incorporation
The corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred on stockholders
herein are granted subject to this reservation.
I, the undersigned, being the sole incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, do make, file and record this Certificate, hereby
declaring and certifying under penalty of perjury that this is my act and deed
and the facts herein stated are true, and accordingly have hereunto set my hand.
Dated: _________, 1999
-----------------------------------------
Teresa Tormey Fineman, Esq., Incorporator
B-2
<PAGE>
Appendix C
[FORM OF]
BYLAWS
OF
NOBLE INTERNATIONAL, LTD.
A Delaware Corporation
ARTICLE I
OFFICE
1.1 Registered Office. The registered office of Noble International,
Ltd., a Delaware corporation (hereinafter called the "Corporation"), in the
State of Delaware shall be at 1013 Centre Road, City of Wilmington, County of
New Castle, and the name of the registered agent in charge thereof shall be
Corporation Service Company.
1.2 Principal Office. The principal office for the transaction of the
business of the Corporation shall be 33 Bloomfield Hills Parkway, Suite 155,
Bloomfield Hills, Michigan 48304. The Board of Directors (hereinafter called the
"Board") is hereby granted full power and authority to change the principal
office from one location to another.
1.3 Other Offices. The Corporation may also have an office or offices
at such other place or places, either within or without the State of Delaware,
as the Board may from time to time determine or as the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 Annual Meetings. Annual meetings of the stockholders of the
Corporation for the purpose of electing directors and for the transaction of
such other business as may properly come before such meetings in accordance with
Section 2.11 of these Bylaws may be held at such time, date and place as the
Board shall determine by resolution.
2.2 Special Meetings. A special meeting of the stockholders for the
transaction of any proper business may be called at any time only by the Board.
2.3 Place of Meetings. All meetings of the stockholders shall be held
at such places within or without the State of Delaware, as may from time to time
be designated by the person or persons calling the respective meeting and
specified in the respective notices or waivers of notice thereof.
2.4 Notice of Meetings.
(a) Except as otherwise required by law, written notice of
each meeting of the stockholders, whether annual or special, shall be given not
less than ten (10) nor more than sixty (60) days before the date of the meeting
to each stockholder of record entitled to vote at such meeting. If mailed,
notice is given when deposited in the United States mail, postage prepaid,
directed to the stockholder at his address as it appears on the records of the
Corporation. Except as otherwise expressly required by law, no publication of
any notice of a meeting of the stockholders shall be required. Every notice of a
meeting of the stockholders shall state the place, date and hour of the meeting,
and in the case of a special meeting, shall also state the purpose or purposes
for which the meeting is called. Notice of any meeting of stockholders shall not
be required to be given to any stockholder who shall have waived such notice and
such notice shall be deemed waived by any stockholder who shall attend such
meeting in person or by proxy, except as a stockholder who shall attend such
meeting for the express purpose of
C-1
<PAGE>
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Except as otherwise
expressly required by law, notice of any adjourned meeting of the stockholders
need not be given if the time and place thereof are announced at the meeting at
which the adjournment is taken.
(b) Whenever notice is required to be given to any stockholder
to whom (i) notice of two consecutive annual meetings, and all notices of
meetings or of the taking of action by written consent without a meeting to such
person during the period between such two consecutive annual meetings, or (ii)
all, and at least two, payments (if sent by first class mail) of dividends or
interest on securities during a twelve-month period, have been mailed addressed
to such person at his address as shown on the records of the Corporation and
have been returned undeliverable, the giving of such notice to such person shall
not be required. Any action or meeting which shall be taken or held without
notice to such person shall have the same force and effect as if such notice had
been duly given. If any person shall deliver to the Corporation a written notice
setting forth his then current address, the requirement that notice be given to
such person shall be reinstated. In the event that the action taken by the
Corporation is such as to require the filing of a certificate under any of the
other sections, the certificate need not state that notice was not given to
persons to whom notice was not required to be given pursuant to this section.
2.5 Quorum. Except as provided by law, the holders of record of a
majority in voting interest of the shares of stock of the Corporation entitled
to be voted thereat, present in person or by proxy, shall constitute a quorum
for the transaction of business at any meeting of the stockholders of the
Corporation or any adjournment thereof. The stockholders present at a duly
called or held meeting at which a quorum is present may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum, and by any greater number of shares otherwise required to
take such action by applicable law or the Certificate of Incorporation. In the
absence of a quorum at any meeting or any adjournment thereof, a majority in
voting interest of the stockholders present in person or by proxy and entitled
to vote thereat or, in the absence therefrom of all the stockholders, any
officer entitled to preside at, or to act as secretary of, such meeting may
adjourn such meeting from time to time. At any such adjourned meeting at which a
quorum is present any business may be transacted which might have been
transacted at the meeting as originally called.
2.6 Voting.
(a) Each stockholder shall, at each meeting of the
stockholders, be entitled to vote in person or by proxy each share or fractional
share of the stock of the Corporation having voting rights on the matter in
question and which shall have been held by him and registered in his name on the
books of the Corporation:
(i) on the date fixed pursuant to Section 2.10 of
these Bylaws as the record date for the determination of stockholders entitled
to notice of and to vote at such meeting, or
(ii) if no such record date shall have been so
fixed, then (A) at the close of business on the day next preceding the day on
which notice of the meeting shall be given or (B) if notice of the meeting shall
be waived, at the close of business on the day next preceding the day on which
the meeting shall be held.
(b) Voting shall in all cases be subject to the provisions of
the Delaware General Corporation Law and to the following provisions:
(i) Subject to Section 2.6(b)(vii), shares held by
an administrator, executor, guardian, conservator, custodian or other fiduciary
may be voted by such holder either in person or by proxy, without a transfer of
such shares into the holder's name; and shares standing in the name of a trustee
may be voted by the trustee, either in person or by proxy, but no trustee shall
be entitled to vote shares held by such trustee without a transfer of such
shares into the trustee's name.
C-2
<PAGE>
(ii) Shares standing in the name of a receiver may
be voted by such receiver; and shares held by or under the control of a receiver
may be voted by such receiver without the transfer thereof into the receiver's
name if authority to do so is contained in the order of the court by which such
receiver was appointed.
(iii) Subject to the provisions of the Delaware
General Corporation Law, and except where otherwise agreed in writing between
the parties, a stockholder whose shares are pledged shall be entitled to vote
such shares until the shares have been transferred into the name of the pledgee,
and thereafter the pledgee shall be entitled to vote the shares so transferred.
(iv) Shares standing in the name of a minor may be
voted and the Corporation may treat all rights incident thereto as exercisable
by the minor, in person or by proxy, whether or not the Corporation has notice,
actual or constructive, of the non-age, unless a guardian of the minor's
property has been appointed and written notice of such appointment given to the
Corporation.
(v) Shares standing in the name of another
corporation, domestic or foreign, may be voted by such officer, agent or
proxyholder as the bylaws of such other corporation may prescribe or, in the
absence of such provision, as the board of directors of such other corporation
may determine or, in the absence of such determination, by the chairman of the
board, president or any vice president of such other corporation, or by any
other person authorized to do so by the board, president or any vice president
of such other corporation. Shares which are purported to be executed in the name
of a corporation (whether or not any title of the person signing is indicated)
shall be presumed to be voted or the proxy executed in accordance with the
provisions of this subdivision, unless the contrary is shown.
(vi) Shares of its own stock belonging to the
Corporation or to another corporation, if a majority of the shares entitled to
vote in the election of directors in such other corporation is held, directly or
indirectly, by the Corporation, shall neither be entitled to vote nor be counted
for quorum purposes.
(vii) Shares held by the Corporation in a fiduciary
capacity, and shares of the Corporation held in a fiduciary capacity by any
subsidiary, shall not be entitled to vote on any matter, except to the extent
that the settlor or beneficial owner possesses and exercises a right to vote or
to give the Corporation binding instructions as to how to vote such shares.
(viii) If shares stand of record in the names of two
or more persons, whether fiduciaries, members of a partnership, joint tenants,
tenants in common, husband and wife as community property, tenants by the
entirety, voting trustees, persons entitled to vote under a stockholder voting
agreement or otherwise, or if two or more persons (including proxyholders) have
the same fiduciary relationship respecting the same shares, unless the Secretary
of the Corporation is given written notice to the contrary and is furnished with
a copy of the instrument or order appointing them or creating the relationship
wherein it is so provided, their acts with respect to voting shall have the
following effect:
(A) If only one votes, such act binds all;
(B) If more than one vote, the act of the
majority so voting binds all;
(C) If more than one vote, but the vote is
evenly split on any particular matter, each fraction may vote the securities in
question proportionately. If the instrument so filed or the registration of the
shares shows that any such tenancy is held in unequal interests, a majority or
even split for the purpose of this section shall be a majority or even split in
interest.
(c) Any such voting rights may be exercised by the stockholder
entitled thereto in person or by his proxy appointed by an instrument in
writing, subscribed by such stockholder or by his attorney thereunto authorized
and delivered to the secretary of the meeting. A validly executed proxy which
does not state that it is irrevocable shall continue in full force and effect
unless revoked by the person executing it, prior to the vote pursuant thereto,
by a writing delivered to the Corporation stating that
C-3
<PAGE>
the proxy is revoked or by a subsequent proxy executed by, or attendance at the
meeting and voting in person by the person executing the proxy; provided,
however, that no such proxy shall be valid after the expiration of three (3)
years from the date of such proxy, unless otherwise provided in the proxy. The
revocability of a proxy that states on its face that it is irrevocable shall be
governed by the provisions of the Delaware General Corporation Law.
(d) At any meeting of the stockholders all matters, except as
otherwise provided in the Certificate of Incorporation, in these Bylaws or by
law, shall be decided by the vote of a majority in voting interest of the
stockholders present in person or by proxy and entitled to vote thereat and
thereon, a quorum being present.
(e) The vote at any meeting of the stockholders on any
question need not be written ballot, unless so directed by the chairman of the
meeting; provided, however, that any election of directors at any meeting must
be conducted by written ballot upon demand made by any stockholder or
stockholders present at the meeting before the voting begins. On a vote by
ballot each ballot shall be signed by the stockholder voting, or by his proxy,
if there be such proxy, and it shall state the number of shares voted.
2.7 Action Without a Meeting. Any action which is required to be taken
or which may be taken at any annual or special meeting of 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, is signed by the
holders of outstanding shares having not less than the minimum number of votes
that would be necessary to authorize or take that action at a meeting at which
all shares entitled to vote on that action were present and voted and shall be
delivered to the Corporation by delivery to its registered office in the State
of Delaware, 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.
In the case of election of directors, such a consent shall be effective only if
signed by the holders of all outstanding shares entitled to vote for the
election of directors; provided, however, that a director may be elected at any
time to fill a vacancy on the Board that has not been filled by the directors,
by the written consent of the holders of a majority of the outstanding shares
entitled to vote for the election of directors. All such consents shall be filed
with the Secretary of the Corporation and shall be maintained in the corporate
records.
Every written consent shall bear the date of signature of each
stockholder who signs the consent and 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 in the manner required by this section to
the Corporation, written consents signed by a sufficient number of holders or
members to take action are delivered to the Corporation by delivery to its
registered office in the State of Delaware, 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 a
Corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested.
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. In the event that the action which is consented
to is such as would have required the filing of a certificate under any other
section of this title, if such action had been voted on by stockholders at a
meeting thereof, the certificate filed under such other section shall state, in
lieu of any statement required by such section concerning any vote of
stockholders, that written consent has been given in accordance with this
section, and that written notice has been given as provided in this section.
2.8 List of Stockholders. The Secretary of the Corporation shall
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at
C-4
<PAGE>
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.
2.9 Judges. If at any meeting of the stockholders a vote by written
ballot shall be taken on any question, the chairman of such meeting may appoint
a judge or judges to act with respect to such vote. Each judge so appointed
shall first subscribe an oath faithfully to execute the duties of a judge at
such meeting with strict impartiality and according to the best of his ability.
Such judges shall: (i) decide upon the qualification of the voters; (ii) report
the number of shares represented at the meeting and entitled to vote on such
question; (iii) conduct the voting and accept the votes; and (iv) when the
voting is completed, ascertain and report the number of shares voted
respectively for and against the question. Reports of judges shall be in writing
and subscribed and delivered by them to the Secretary of the Corporation. The
judges need not be stockholders of the Corporation, and any officer of the
Corporation may be a judge on any question other than a vote for or against a
proposal in which he shall have a material interest.
2.10 Fixing Date for Determination of Stockholders of Record.
(a) In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted by the Board,
and which record date shall not be more than sixty (60) nor less than ten (10)
days before the date of such meeting.
(b) In order that the Corporation may determine the
stockholders entitled to consent to corporate action in writing without a
meeting, the Board 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, 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. If no
record date has been fixed by the Board, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board is required, shall be the first date
on which a signed written consent setting forth the action taken or proposed to
be taken is delivered to the Corporation by delivery to its registered office in
the State of Delaware, 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 and prior action by the
Board is required, 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 adopts the resolution taking such
prior action.
(c) In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights or the stockholders entitled to exercise any rights
in respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action, the Board 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 adopts the resolution relating thereto.
If no record date is fixed by the Board, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board may fix a new record date for the adjourned meeting.
C-5
<PAGE>
2.11 Stockholder Proposals at Annual Meetings.
(a) Business may be properly brought before an annual meeting
by a stockholder only upon the stockholder's timely notice thereof in writing to
the Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than thirty (30) days nor more than sixty (60) days prior
to the meeting as originally scheduled; provided, however, that in the event
that less than forty (40) days' notice or prior public disclosure of the date of
the meeting is given or made to stockholders, notice by the stockholder to be
timely must be so received not later than the close of business on the tenth
(10th) day following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure was made. For purposes of this
Section 2.11, any adjournment(s) or postponement(s) of the original meeting
shall be deemed for purposes of notice to be a continuation of the original
meeting and no business may be brought before any reconvened meeting unless such
timely notice of such business was given to the Secretary of the Corporation for
the meeting as originally scheduled. A stockholder's notice to the Secretary
shall set forth as to each matter the stockholder proposes to bring before the
annual meeting (i) a brief description of the business desired to be brought
before the annual meeting, (ii) the name and record address of the stockholder
proposing such business, (iii) the class and number of shares of the Corporation
which are beneficially owned by the stockholder, and (iv) any material interest
of the stockholder in such business. Notwithstanding the foregoing, nothing in
this Section 2.11 shall be interpreted or construed to require the inclusion of
information about any such proposal in any proxy statement distributed by, at
the direction of, or on behalf of the Board.
(b) The chairman of an annual meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting in accordance with the provisions of this Section
2.11, and if the chairman should so determine, the chairman shall so declare to
the meeting and any such business not properly brought before the meeting shall
not be transacted.
2.12 Notice of Stockholder Nominees.
(a) Nominations of persons for election to the Board of the
Corporation shall be made only at a meeting of stockholders and only (i) by or
at the direction of the Board or (ii) by any stockholder of the Corporation
entitled to vote for the election of directors at the meeting who complies with
the notice procedures set forth in this Section 2.12. Such nominations, other
than those made by or at the direction of the Board, shall be made pursuant to
timely notice in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice shall be delivered to or mailed and received at the
principal executive offices of the Corporation not less than thirty (30) days
nor more than sixty (60) days prior to the meeting; provided, however, that in
the event that less than forty (40) days' notice or prior public disclosure of
the date of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be received not later than the close of business
on the tenth (10th) day following the day on which such notice of the date of
the meeting was mailed or such public disclosure was made. For purposes of this
Section 2.12, any adjournment(s) or postponement(s) of the original meeting
shall be deemed for purposes of notice to be a continuation of the original
meeting and no nominations by a stockholder of persons to be elected directors
of the Corporation may be made at any such reconvened meeting unless pursuant to
a notice which was timely for the meeting on the date originally scheduled. Such
stockholder's notice shall set forth: (i) as to each person whom the stockholder
proposes to nominate for election or re-election as a director, all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in each case
pursuant to the Securities Exchange Act of 1934, as amended, (including such
person's written consent to being named in the proxy statement as a nominee and
to serving as a director if elected); and (ii) as to the stockholder giving the
notice (A) the name and address, as they appear on the Corporation's books, of
such stockholder, and (B) the class and number of shares of the Corporation
which are beneficially owned by such stockholder. Notwithstanding the foregoing,
nothing in this Section 2.12 shall be interpreted or construed to require the
inclusion of information about any such nominee in any proxy statement
distributed by, at the discretion of, or on behalf of the Board.
(b) The chairman of the meeting shall, if the facts warrant,
determine and declare to
C-6
<PAGE>
the meeting that a nomination was not made in accordance with the procedures
prescribed by this Section 2.12, and if the chairman should so determine, the
chairman shall so declare to the meeting and the defective nomination shall be
disregarded.
ARTICLE III
BOARD OF DIRECTORS
3.1 General Powers. The property, business and affairs of the
Corporation shall be managed by or under the direction of the Board.
3.2 Number and Term of Office. The authorized number of directors shall
be no less than nine (9) and no more than twelve (12). The exact number of
authorized directors shall be set by resolution of the Board of Directors,
within the limits specified above. Directors need not be stockholders. Each
director shall hold office until the next annual meeting and until a successor
has been elected and qualified, or he resigns, or he is removed in a manner
consistent with these Bylaws.
3.3 Classes of Directors. The directors shall be divided into three (3)
classes designated as Class I, Class II and Class III, respectively. Directors
shall be assigned to each class in accordance with a resolution or resolutions
adopted by the Board of Directors. At the first annual meeting of stockholders
following the adoption and filing of the Certificate of Incorporation, the term
of office of the Class I directors shall expire and Class I directors shall be
elected for a full term of three (3) years. At the second annual meeting
following the adoption and filing of the Certificate of Incorporation, the term
of office of the Class II directors shall expire and Class II directors shall be
elected for a full term of three (3) years. At the third annual meeting of
stockholders following the adoption and filing of the Certificate of
Incorporation, the term of office of the Class III directors shall expire and
Class III directors shall be elected for a full term of three (3) years. At each
succeeding annual meeting of stockholders, directors shall be elected for a full
term of three (3) years to succeed the directors of the class whose terms expire
at such annual meeting.
3.4 Election of Directors. The directors shall be elected annually by
the stockholders of the Corporation and the persons receiving the greatest
number of votes in accordance with the system of voting established by these
Bylaws shall be the directors.
3.5 Resignation and Removal of Directors. Any director of the
Corporation may resign at any time by giving written notice to the Corporation.
Any such resignation shall take effect at the time specified therein, or, if the
time be not specified, it shall take effect immediately upon its receipt; and
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective. Any or all of the directors may be removed
with or without cause if such removal is approved by the affirmative vote of a
majority of the outstanding shares entitled to vote at an election of directors.
No reduction of the authorized number of directors shall have the effect of
removing any director before his term of office expires.
3.6 Vacancies. Except as otherwise provided in the Certificate of
Incorporation, any vacancy in the Board, whether because of death, resignation,
disqualification, an increase in the number of directors or any other cause, may
be filled by a majority of the remaining directors, though less than a quorum.
Each director so chosen to fill a vacancy shall hold office until his successor
shall have been elected and qualified or until he shall resign or shall have
been removed in the manner hereinafter provided.
The stockholders may elect a director or directors at any time to fill
any vacancy or vacancies not filled by the directors, but any such election by
written consent shall require the consent of a majority of the outstanding
shares entitled to vote.
3.7 Place of Meeting, Etc. The Board may hold any of its meetings at
such place or places within or without the State of Delaware as the Board may
from time to time by resolution designate or as shall be designated by the
person or persons calling the meeting or in the notice or a waiver of notice of
C-7
<PAGE>
any such meeting. Directors may participate in any regular or special meeting of
the Board by means of conference telephone or similar communications equipment
pursuant to which all persons participating in the meeting of the Board can hear
each other, and such participation shall constitute presence in person at such
meeting.
3.8 First Meeting. The Board shall meet as soon as practicable after
each annual election of directors and notice of such first meeting shall not be
required.
3.9 Regular Meetings. Regular meetings of the Board may be held at such
times as the Board shall from time to time by resolution determine. If any day
fixed for a regular meeting shall be a legal holiday at the place where the
meeting is to be held, then the meeting shall be held at the same hour and place
on the next succeeding business day not a legal holiday. Except as may be
required by law or specified herein, notice of regular meetings need not be
given.
3.10 Special Meetings. Special meetings of the Board shall be held
whenever called by the Chairman of the Board, the President or any two or more
directors. Except as otherwise provided by law or by these Bylaws, notice of the
time and place of each such special meeting shall be mailed to each director,
addressed to him at his residence or usual place of business, at least five (5)
days before the day on which the meeting is to be held, or shall be sent to him
at such place by telegraph or cable or be delivered personally not less than
forty-eight (48) hours before the time at which the meeting is to be held.
Except where otherwise required by law or by these Bylaws, notice of the purpose
of a special meeting need not be given. Notice of any meeting of the Board shall
not be required to be given to any director who is present at such meeting,
except a director who shall attend such meeting 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.
3.11 Quorum and Manner of Acting. Except as otherwise provided in these
Bylaws, in the Certificate of Incorporation or by law, the presence of a
majority of the authorized number of directors shall be required to constitute a
quorum for the transaction of business, at any meeting of the Board, and all
matters shall be decided at any such meeting, a quorum being present, by the
affirmative votes of a majority of the directors present. A meeting at which a
quorum is initially present may continue to transact business notwithstanding
the withdrawal of directors, provided any action taken is approved by at least a
majority of the required quorum for such meeting. In the absence of a quorum, a
majority of directors present at any meeting may adjourn the same from time to
time until a quorum shall be present. Notice of an adjourned meeting need not be
given. The directors shall act only as a Board, and the individual directors
shall have no power as such.
3.12 Action by Consent. Any action required or permitted to be taken at
any meeting of the Board or of any committee thereof may be taken without a
meeting if a written consent thereto is signed by all members of the Board or of
such committee, as the case may be, and such written consent is filed with the
minutes of proceedings of the Board or committee.
3.13 Compensation. The directors shall receive only such compensation
for their services as directors as may be allowed by resolution of the Board.
The Board may also provide that the Corporation shall reimburse each such
director for any expense incurred by him on account of his attendance at any
meetings of the Board or Committees of the Board. Neither the payment of such
compensation nor the reimbursement of such expenses shall be construed to
preclude any director from serving the Corporation or its subsidiaries in any
other capacity and receiving compensation therefor.
3.14 Committees of Directors.
(a) The Board 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. Any such committee, to the extent
provided in the resolution of the Board and except as otherwise limited by law,
shall have and may exercise all the powers and authority of the Board in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all
C-8
<PAGE>
papers which may require it; provided, however, that no such committee shall
have the power or authority to act on behalf of the Board with regard to:
(i) the approval of any action which, under the
Delaware General Corporation Law, also requires stockholders' approval or
approval of the outstanding shares;
(ii) the filling of vacancies on the Board of
Directors or on any committees;
(iii) the fixing of compensation of the directors
for serving on the Board or on any committee;
(iv) the amendment or repeal of Bylaws or the
adoption of new Bylaws;
(v) the amendment or repeal of any resolution of
the Board of Directors which by its express terms is not so amendable or
repealable;
(vi) a distribution to the stockholders of the
Corporation, except at a rate or in a periodic amount or within a price range
determined by the Board of Directors; or
(vii) the appointment of any other committees of the
Board of Directors or the members thereof.
(b) Meetings and action of committees shall be governed by,
and held and taken in accordance with, the provisions of these Bylaws dealing
with the place of meetings, regular meetings, special meetings and notice,
quorum, waiver of notice, adjournment, notice of adjournment and action without
meeting, with such changes in the context of these Bylaws as are necessary to
substitute the committee and its members for the Board of Directors and its
members, except that the time or regular meetings of committees may be
determined by resolutions of the Board of Directors. Notice of special meetings
of committees shall also be given to all alternate members, who shall have the
right to attend all meetings of the committee. The Board of Directors or a
committee may adopt rules for the government of such committee not inconsistent
with the provisions of these Bylaws.
Any such committee shall keep written minutes of its meetings and
report the same to the Board at the next regular meeting of the Board. In the
absence or disqualification of a member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the
Board to act at the meeting in the place of any such absent or disqualified
member.
3.15 Other Committees. The Board may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of one or more non-employee directors and one or more other
disinterested persons, who need not be directors, for the purpose of providing
advice to the Board regarding any matter, including but not limited to the
compensation of officers and other key employees. For the purposes of this
Section, a "disinterested person" means any person having no significant
interest in the actions of the committee, as determined by the Board. Any such
committee, to the extent provided in the resolution of the Board and except as
otherwise limited by law, shall assist the Board in exercising its powers and
authority in the management of the business and affairs of the Corporation, but
shall not itself exercise such powers and authority. Any such committee shall
keep written minutes of its meetings and report the same to the Board at the
next regular meeting of the Board. In the absence or disqualification of a
member of any such committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint any disinterested person to act at the meeting
in the place of any such absent or disqualified member. The compensation and
reimbursement of expenses of the members of any such committee shall be
determined by resolution passed by a majority of the whole Board. Neither the
payment of such compensation nor the reimbursement of such expenses shall be
construed to preclude any such member from serving the Corporation or its
subsidiaries in any other capacity and receiving compensation therefor.
C-9
<PAGE>
3.16 Certain Transactions. In the absence of fraud, no contract or
other transaction between the Corporation and any other corporation, and no act
of the Corporation, shall in any way be affected or invalidated by the fact that
any of the directors of the Corporation are financially or otherwise interested
in, or are directors or officers of, such other corporations; and, in the
absence of fraud, any director, individually, or any firm of which any director
may be a member, may be a party to, or may be financially or otherwise
interested in, any contract or transaction of the Corporation; provided, in any
case, that the fact that he or such firm is so interested shall be disclosed or
shall have been known to the Board of Directors or committee. Any director of
the Corporation who is also a director or officer of any such other corporation
or who is so interested may be counted in determining the existence of a quorum
at any meeting of the Board of Directors of the Corporation that shall authorize
any such contract, act or transaction, and may vote thereat to authorize any
such contract, act or transaction, with full force and effect as if he were not
such director or officer of such other corporation or not so interested.
ARTICLE IV
OFFICERS
4.1 Corporate Officers.
(a) The officers of the Corporation shall be a Chief Executive
Officer (Chairman of the Board), a President, one or more Vice Presidents (the
number thereof and their respective titles to be determined by the Board), a
Secretary, Chief Operating Officer, Chief Financial Officer (Treasurer) and such
other officers as may be appointed at the discretion of the Board in accordance
with the provisions of Section 4.1(b).
(b) In addition to the officers specified in Section 4.1(a),
the Board may appoint such other officers as the Board may deem necessary or
advisable, including one or more Assistant Secretaries and one or more Assistant
Treasurers, each of whom shall hold office for such period, have such authority
and perform such duties as the Board may from time to time determine. The Board
may delegate to any officer of the Corporation or any committee of the Board the
power to appoint, remove and prescribe the duties of any officer provided for in
this Section 4.1(b).
(c) Any number of offices may be held by the same person.
4.2 Election, Term of Office and Qualifications. The officers of the
Corporation, except such officers as may be appointed in accordance with
Sections 4.1(b) or 4.5, shall be appointed annually by the Board at the first
meeting thereof held after the election of the Board. Each officer shall hold
office until such officer shall resign or shall be removed by the Board (either
with or without cause) or otherwise disqualified to serve, or the officer's
successor shall be appointed and qualified.
4.3 Removal. Any officer of the Corporation may be removed, with or
without cause, at any time at any regular or special meeting of the Board by a
majority of the directors of the Board at the time in office or, except in the
case of an officer appointed by the Board, by any officer of the Corporation or
committee of the Board upon whom or which such power of removal may be conferred
by the Board.
4.4 Resignations. Any officer may resign at any time by giving written
notice of his resignation to the Board, the President or the Secretary of the
Corporation. Any such resignation shall take effect at the time specified
therein, or, if the time is not specified, upon receipt thereof by the Board,
President or Secretary, as the case may be; and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
4.5 Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification or other cause may be filled for the unexpired portion
of the term thereof in the manner prescribed in these Bylaws for regular
appointments or elections to such office.
4.6 Chief Executive Officer (Chairman of the Board). The Chief
Executive Officer (Chairman
C-10
<PAGE>
of the Board) of the Corporation shall be the chief executive officer of the
Corporation, unless otherwise determined by the Board, and shall have, subject
to the control of the Board, general and active supervision and management over
the business of the Corporation and over its several subordinate officers,
assistants, agents and employees. The Chief Executive Officer shall preside at
all meetings of the stockholders and at all meetings of the Board.
4.7 President. The President shall have, subject to the control of the
Board and/or the Chief Executive Officer (Chairman of the Board), general and
active supervision and management over the business of the Corporation and over
its several subordinate officers, assistants, agents and employees. The
President shall have such other powers and duties as may from time to time be
assigned to him by the Chief Executive Officer (Chairman of the Board), the
Board or as prescribed by the Bylaws. At the request of the Chief Executive
Officer (Chairman of the Board), or in the case of the absence or inability to
act of the Chief Executive Officer (Chairman of the Board) upon the request of
the Board, the President shall perform the duties of the Chief Executive Officer
(Chairman of the Board) and when so acting, shall have all the powers of, and be
subject to all the restrictions upon, the Chief Executive Officer (Chairman of
the Board).
4.8 Vice Presidents. Each Vice President shall have such power and
perform such duties as the Board may from time to time prescribe. At the request
of the President, or in the case of the President's absence or inability to act
upon the request of the Board, a Vice President shall perform the duties of the
President and when so acting, shall have all the powers of, and be subject to
all the restrictions upon, the President.
4.9 Chief Operating Officer. The Chief Operating Officer shall have,
subject to the control of the Chief Executive Officer, President, and the Board,
general and active supervision and management over the operations of the
Corporation, the subsidiaries, and over its several subordinate officers,
assistants, agents and employees. The Chief Operating Officer shall have such
other powers and duties as may from time to time be assigned to him by the Chief
Executive Officer, President and the Board or as prescribed by the Bylaws.
4.10 Chief Financial Officer (Treasurer). The Chief Financial Officer
(Treasurer) shall supervise, have custody of, and be responsible for all funds
and securities of the Corporation. The Chief Financial Officer (Treasurer) shall
deposit all such funds in the name of the Corporation in such banks, trust
companies or other depositories as shall be selected by the Board or in
accordance with authority delegated by the Board. The Chief Financial Officer
(Treasurer) shall receive, and give receipts for, moneys due and payable to the
Corporation from any source whatsoever. The Chief Financial Officer (Treasurer)
shall exercise general supervision over expenditures and disbursements made by
officers, agents and employees of the Corporation and the preparation of such
records and reports in connection therewith as may be necessary or desirable.
The Chief Financial Officer (Treasurer) shall, in general, perform all other
duties incident to the office of Chief Financial Officer (Treasurer) and such
other duties as from time to time may be assigned to the Chief Financial Officer
(Treasurer) by the Board.
4.11 Secretary. The Secretary shall have the duty to record the
proceedings of all meetings of the Board, of the stockholders, and of all
committees of which a secretary shall not have been appointed in one or more
books provided for that purpose. The Secretary shall see that all notices are
duly given in accordance with these Bylaws and as required by law; shall be
custodian of the seal of the Corporation and shall affix and attest the seal to
all documents to be executed on behalf of the Corporation under its seal; and,
in general, he shall perform all the duties incident to the office of Secretary
and such other duties as may from time to time be assigned to him by the Board.
4.12 Compensation. The compensation of the officers of the Corporation
shall be fixed from time to time by the Board. None of such officers shall be
prevented from receiving such compensation by reason of the fact that he is also
a director of the Corporation. Nothing contained herein shall preclude any
officer from serving the Corporation, or any subsidiary corporation, in any
other capacity and receiving proper compensation therefor.
C-11
<PAGE>
ARTICLE V
CONTRACTS, CHECKS, DRAFTS,
BANK ACCOUNTS, ETC.
5.1 Execution of Contracts. The Board, except as in these Bylaws
otherwise provided, may authorize any officer or officers, agent or agents, to
enter into any contract or execute any instrument in the name of and on behalf
of the Corporation, and such authority may be general or confined to specific
instances; and unless so authorized by the Board or by these Bylaws, no officer,
agent or employee shall have any power or authority to bind the Corporation by
any contract or engagement or to pledge its credit or to render it liable for
any purpose or in any account.
5.2 Checks, Drafts, Etc. All checks, drafts or other orders for payment
of money, notes or other evidence of indebtedness, issued in the name of or
payable to the Corporation, shall be signed or endorsed by such person or
persons and in such manner as, from time to time, shall be determined by
resolution of the Board.
Each such person shall give such bond, if any, as the Board may require.
5.3 Deposits. All funds of the Corporation not otherwise employed shall
be deposited from time to time to the credit of the Corporation in such banks,
trust companies or other depositories as the Board may select, or as may be
selected by any officer or officers, assistant or assistants, agent or agents,
or attorney or attorneys of the Corporation to whom such power shall have been
delegated by the Board. For the purpose of deposit and for the purpose of
collection for the account of the Corporation, the Chief Executive Officer,
President, any Vice President or the Chief Financial Officer, (or any other
officer or officers, assistant or assistants, agent or agents or attorney or
attorneys of the Corporation who shall from time to time be determined by the
Board), may endorse, assign and deliver checks, drafts and other orders for the
payment of money which are payable to the order of the Corporation.
5.4 General and Special Bank Accounts. The Board may from time to time
authorize the opening and keeping of general and special bank accounts with such
banks, trust companies or other depositories as the Board may select or as may
be selected by any officer or officers, assistant or assistants, agent or
agents, or attorney or attorneys of the Corporation to whom such power shall
have been delegated by the Board. The Board may make such special rules and
regulations with respect to such bank accounts, not inconsistent with the
provisions of these Bylaws, as it may deem expedient.
ARTICLE VI
SHARES AND THEIR TRANSFER
6.1 Certificates for Stock.
(a) The shares of the Corporation shall be represented by
certificates, provided that the Board may provide by resolution or resolutions
that some or all of any or all classes or series of its stock shall be
uncertificated shares. Any such resolution shall not apply to shares represented
by a certificate until such certificate is surrendered to the Corporation.
Notwithstanding the adoption of such a resolution by the Board, every holder of
stock represented by certificates and upon request every holder of
uncertificated shares shall be entitled to have a certificate, in such form as
the Board shall prescribe, signed by, or in the name of, the Corporation by the
Chief Executive Officer (Chairman of the Board), or the President or Vice
President, and by the Chief Financial Officer (Treasurer) or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the Corporation
representing the number of shares registered in certificate form. Any of or all
of the signatures on the certificates may be a facsimile. In case any officer,
transfer agent or registrar who has signed, or whose facsimile signature has
been placed upon, any such certificates, shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, such certificate
may nevertheless be issued by the Corporation with the same effect as though the
person who signed such certificate, or whose facsimile signature shall have been
placed thereupon, were such officer, transfer agent or registrar at the date of
issue.
(b) A record shall be kept of the respective names of the
persons, firms or
C-12
<PAGE>
corporations owning the stock represented by such certificates, the number and
class of shares represented by such certificates, respectively, and the
respective dates thereof, and in case of cancellation, the respective dates of
cancellation. Every certificate surrendered to the Corporation for exchange or
transfer shall be canceled, and no new certificate or certificates shall be
issued in exchange for any existing certificate until such existing certificate
shall have been so canceled, except in cases provided for in Section 6.4.
6.2 Transfers of Stock. Transfers of shares of stock of the Corporation
shall be made only on the books of the Corporation by the registered holder
thereof, or by such holder's attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary, or with a transfer clerk or a
transfer agent appointed as provided in Section 6.3, and upon surrender of the
certificate or certificates for such shares properly endorsed and the payment of
all taxes thereon. The person in whose name shares of stock stand on the books
of the Corporation shall be deemed the owner thereof for all purposes as regards
the Corporation. Whenever any transfer of shares shall be made for collateral
security, and not absolutely, such fact shall be so expressed in the entry of
transfer if, when the certificate or certificates shall be presented to the
Corporation for transfer, both the transferor and the transferee request the
Corporation to do so.
6.3 Regulations. The Board may make such rules and regulations as it
may deem expedient, not inconsistent with these Bylaws, concerning the issue,
transfer and registration of certificates for shares of the stock of the
Corporation. It may appoint, or authorize any officer or officers to appoint,
one or more transfer clerks or one or more transfer agents and one or more
registrars, and may require all certificates for stock to bear the signature or
signatures of any of them.
6.4 Lost, Stolen, Destroyed and Mutilated Certificates. In any case of
loss, theft, destruction or mutilation of any certificate of stock, another may
be issued in its place upon proof of such loss, theft, destruction or mutilation
and upon the giving of a bond of indemnity to the Corporation in such form and
in such sum as the Board may direct; provided, however, that a new certificate
may be issued without requiring any bond when, in the judgment of the Board, it
is proper to do so.
6.5 Payment for Shares. Certificates for shares may be issued prior to
full payment under such restrictions and for such purposes as the Board may
provide; provided, however, that on any certificate issued to represent any
partly paid shares, the total amount of the consideration to be paid therefor
and the amount paid thereon shall be stated.
ARTICLE VII
INDEMNIFICATION
7.1 Authorization For Indemnification. The Corporation may indemnify,
in the manner and to the full extent permitted by law, any person (or the
estate, heirs, executors, or administrators of any person) who was or is a party
to, or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation), by
reason of the fact that such person is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and with respect to any criminal action or
proceeding, that he had reasonable cause to believe that his conduct was
unlawful.
C-13
<PAGE>
7.2 Advance of Expenses. Costs and expenses (including attorneys' fees)
incurred by or on behalf of a director or officer in defending or investigating
any action, suit, proceeding or investigation may be paid by the Corporation in
advance of the final disposition of such matter, if such director or officer
shall undertake in writing to repay any such advances in the event that it is
ultimately determined that he is not entitled to indemnification. Such expenses
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board deems appropriate. Notwithstanding the
foregoing, no advance shall be made by the Corporation if a determination is
reasonably and promptly made by the Board by a majority vote of a quorum of
disinterested directors, or (if such a quorum is not obtainable or, even if
obtainable, a quorum of disinterested directors so directs) by independent legal
counsel in a written opinion, or by the stockholders, that, based upon the facts
known to the Board or counsel at the time such determination is made, (a) the
director, officer, employee or agent acted in bad faith or deliberately breached
his duty to the Corporation or its stockholders, and (b) as a result of such
actions by the director, officer, employee or agent, it is more likely than not
that it will ultimately be determined that such director, officer, employee or
agent is not entitled to indemnification.
7.3 Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise or as a member of any committee or similar
body against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under the
provisions of this Article or applicable law.
7.4 Non-exclusivity. The right of indemnity and advancement of expenses
provided herein shall not be deemed exclusive of any other rights to which any
person seeking indemnification or advancement of expenses from the Corporation
may be entitled under any agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office. Any agreement for
indemnification of or advancement of expenses to any director, officer, employee
or other person may provide rights of indemnification or advancement of expenses
which are broader or otherwise different from those set forth herein.
ARTICLE VIII
MISCELLANEOUS
8.1 Seal. The Board shall provide a corporate seal, which shall be in
the form of a circle and shall bear the name of the Corporation and words and
figures showing that the Corporation was incorporated in the State of Delaware
and the year of incorporation.
8.2 Waiver of Notices. Whenever notice is required to be given by these
Bylaws or the Certificate of Incorporation or by law, the person entitled to
said notice may waive such notice in writing, either before or after the time
stated therein, and such waiver shall be deemed equivalent to notice. Attendance
of a person at a meeting (whether in person or by proxy in the case of a meeting
of stockholders) shall constitute a waiver of notice of such meeting, except
when the person attends a meeting 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. Neither the business to be transacted at,
nor the purpose of any regular or special meeting of the stockholders, directors
or members of a committee of directors need be specified in any written waiver
of notice.
8.3 Amendments. The original or other Bylaws of the Corporation may be
adopted, amended or repealed by the incorporators, by the initial directors if
they were named in the Certificate of Incorporation, or, before the Corporation
has received any payment for any of its stock, by its Board. After the
Corporation has received any payment for any of its stock, the power to adopt,
amend or repeal Bylaws shall be in the stockholders entitled to vote; provided,
however, the Corporation may, in its Certificate of Incorporation, confer the
power to adopt, amend or repeal Bylaws upon the directors. The fact that such
power has been so conferred upon the directors shall not divest the stockholders
of the
C-14
<PAGE>
power, nor limit their power to adopt, amend or repeal Bylaws.
8.4 Representation of Other Corporations. The Chief Executive Officer
(Chairman of the Board), President, any Vice President or the Secretary of this
Corporation is authorized to vote, represent and exercise on behalf of this
Corporation all rights incident to any and all shares of any other corporation
or corporations standing in the name of this Corporation. The authority herein
granted to said officers to vote or represent on behalf of this Corporation any
and all shares held by this Corporation in any other corporation or corporations
may be exercised either by such officers in person or by any person authorized
to do so by proxy or power of attorney duly executed by said officers.
8.5 Stock Purchase Plans. The Corporation may adopt and carry out a
stock purchase plan or agreement or stock option plan or agreement providing for
the issue and sale for such consideration as may be fixed of its unissued
shares, or of issued shares acquired or to be acquired, to one or more of the
employees or directors of the Corporation or of a subsidiary or to a trustee on
their behalf and for the payment for such shares in installments or at one time,
and may provide for aiding any such persons in paying for such shares by
compensation for services rendered, promissory notes, or otherwise.
Any stock purchase plan or agreement or stock option plan or agreement
may include, among other features, the fixing of eligibility for participation
therein, the class and price of shares to be issued or sold under the plan or
agreement, the number of shares which may be subscribed for, the method of
payment therefor, the reservation of title until full payment therefor, the
effect of the termination of employment and option or obligation on the part of
the Corporation to repurchase the shares, the time limits of and termination of
the plan and any other matters, not in violation of applicable law, as may be
included in the plan as approved or authorized by the Board or any committee of
the Board.
8.6 Construction and Definitions. Unless the context requires
otherwise, the general provisions, rules of construction and definitions in the
Delaware General Corporation Law shall govern the construction of these Bylaws.
Without limiting the generality of this provision, the singular number includes
the plural, the plural number includes the singular, and the term "person"
includes both a corporation and a natural person.
C-15
<PAGE>
NOBLE INTERNATIONAL, LTD. PROXY -- 1998 ANNUAL MEETING
Solicited on behalf of the Board of Directors
for the Annual Meeting April 26, 1999
The undersigned, a shareholder of Noble International, Ltd., a Michigan
corporation, appoints Michael C. Azar his, her or its true and lawful agent and
proxy, with full power of substitution, to vote all the shares of stock that the
undersigned would be entitled to vote if personally present at the Annual
Meeting of Shareholders of Noble International, Ltd. to be held at Management
Education Center, 811 W. Square Lake Rd., Troy, MI 48098, on Monday, April 26,
1999, at 10:00 a.m., and any adjournment thereof, with respect to the following
matters which are more fully explained in the Proxy Statement of the Company
dated April 12, 1999 receipt of which is acknowledged by the undersigned:
ITEM 1: ELECTION OF DIRECTORS.
______ FOR all nominees ______ WITHHOLD AUTHORITY
(Except as listed below.) (As to all nominees.)
Nominees: Mark T. Behrman, Michael R. Hottinger, Lloyd P. Jones, III,
Daniel J. McEnroe, Daniel W. Sampson, Robert J. Skandalaris,
Jonathan P. Rye, Richard K. Mastain and Anthony R. Tersigni.
Instruction: To withhold authority to vote for any individual nominee(s),
write that nominee's name in the space provided below.
____________________________________________________________
ITEM 2: APPROVAL OF REINCORPORATION IN THE STATE OF DELAWARE
_____ FOR _____ AGAINST _____ ABSTAIN
ITEM 3: APPROVAL OF CLASSIFIED BOARD OF DIRECTORS
_____ FOR _____ AGAINST _____ ABSTAIN
ITEM 4: RATIFICATION OF INDEPENDENT PUBLIC ACCOUNTANTS
_____ FOR _____ AGAINST _____ ABSTAIN
ITEM 5: OTHER MATTERS. The Board of Directors at present knows of no
other matters to be brought before the Annual Meeting.
<PAGE>
This proxy will be voted in accordance with the instructions given. If no
direction is made, the shares represented by this proxy will be voted FOR the
election of the directors nominated by the Board of Directors and will be voted
in accordance with the discretion of the proxies upon all other matters which
may come before the Annual Meeting.
DATED:____________________________, 1999
----------------------------------------
Signature of Shareholder
----------------------------------------
Signature of Shareholder
PLEASE SIGN AS YOUR NAME APPEARS ON THE PROXY
Trustees, Guardians, Personal and other Representatives,
please indicate full titles.
IMPORTANT: PLEASE VOTE, DATE, SIGN AND RETURN THE PROXY CARD
PROMPTLY USING THE ENCLOSED POSTAGE-PAID ENVELOPE
