SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or (g) of the
Securities Exchange Act of 1934
Noble International, Ltd.
(Exact name of registrant as specified in its charter)
Delaware 38-3139487
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(State of incorporation (I.R.S. Employer
or organization) Identification No.)
33 Bloomfield Hills Parkway, Suite 155
Bloomfield Hills, Michigan 48304
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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None None
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [ ]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [X]
Securities Act registration statement file number to which this form relates:
_____________ (if applicable)
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $.001 par value
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(Title of class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered.
This Registration Statement on Form 8-A is filed for the purpose of
registering the common stock, $.001 par value ("Common Stock"), of Noble
International, Ltd., a Delaware corporation (the "Company"), under Section 12(g)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), in
connection with the listing of the Common Stock on the Nasdaq Stock Market's
National Market System ("Nasdaq"). The Company was incorporated on June 29, 1999
for the purpose of acting as the successor in interest to Noble International,
Ltd., a Michigan corporation ("Noble Michigan") in connection with the
reincorporation of Noble Michigan in the State of Delaware. The common stock, no
par value, of Noble Michigan is currently registered under Section 12(b) of the
Exchange Act and is listed on the American Stock Exchange ("AMEX"). The Company
anticipates that Noble Michigan's listing on the AMEX will be terminated in
connection with the listing of the Company's Common Stock on the Nasdaq.
The following is a description of the Common Stock, as well as the
rights, preferences, qualifications, restrictions and limitations of other
capital stock of the Company affecting the rights of holders of Common Stock.
The following description is qualified in its entirety by reference to the terms
of the Company's Certificate of Incorporation and Bylaws which are included as
exhibits hereto.
Authorized Shares
The authorized capital stock of the Company consists of 20,000,000
shares of Common Stock, $.001 par value, and 150,000 shares of Preferred Stock,
$10 par value.
Common Stock
The holders of Common Stock are entitled to one vote per share on all
matters submitted to a vote of stockholders and do not have cumulative voting
rights. Accordingly, the holders of a majority of the shares entitled to vote in
any election of directors may elect all of the directors standing for election.
Subject to the preferences that may be applicable to any then outstanding
Preferred Stock, the holders of Common Stock will be entitled to receive such
dividends, when, as and if declared by the Board of Directors from time to time
out of legally available funds. Upon the liquidation, dissolution or winding up
of the Company, the holders of Common Stock will be entitled to share ratably in
all assets of the Company that are legally available for distribution, after
payment of all debts and other liabilities and subject to the prior rights of
holders of any Preferred Stock then outstanding. Holders of Common Stock have no
preemptive, subscription, redemption or conversion rights.
Preferred Stock
The Board of Directors is authorized, subject to any limitations
prescribed by the laws of the State of Delaware, but without further action by
the Company's stockholders, to provide for the issuance of Preferred Stock in
one or more series, to establish from time to time the number of
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shares to be included in such series, to fix the designations, powers,
preferences, and rights of the shares of each such series and any
qualifications, limitations, or restrictions thereof, and to increase or
decrease the number of shares of any such series (but not below the number of
shares of such series then outstanding) without any further vote or action by
the stockholders. The Board of Directors may authorize and issue Preferred Stock
with voting or conversion rights that could adversely affect the voting power or
other rights of the holders of Common Stock. In addition, the issuance of
Preferred Stock may have the effect of delaying, deterring or preventing a
change in control of the Company.
Delaware General Corporation Law and Certain Charter Provisions
Section 203. 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.
Classified Board of Directors. The Company's Bylaws provide for a
classified Board of Directors with three (3) classes of directors with staggered
terms of office, with only one class of directors standing for election each
year (the "Classified Board Provision"). 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 stockholders; (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
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Directors can act in a more careful and deliberative manner to make and
implement appropriate business judgments in response to a creeping acquisition.
Stockholder Meetings. The Bylaws of the Company authorize only the
Board of Directors to call a special meeting of stockholders. Stockholders are
not able to call a special meeting of stockholders. The Company believes that
maintaining this power is a prudent corporate governance measure to prevent an
inappropriately small number of stockholders from prematurely forcing
stockholder consideration of a proposal over the opposition of the Board of
Directors by calling a special stockholders' 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.
Actions By Written Consent of Stockholders. Delaware law permits a
corporation to eliminate actions by written consent of stockholders in lieu of a
meeting in its charter or bylaws. The Company's Bylaws eliminate stockholders
actions by written consent.
Nominations of Director Candidates and Introduction of Business at
Stockholder Meetings. The Bylaws of the Company include an advance notice
procedure 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 stockholders (the "Business Procedure"). By
requiring advance notice of nominations by stockholders, 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 stockholders about such qualifications. By
requiring advance notice of proposed business, the Business Procedure provides
the Board with an opportunity to inform stockholders of any business proposed to
be conducted at a meeting and the Board's position on any such proposal,
enabling stockholders 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 Bylaws do not give the Board any power to approve or
disapprove stockholder nominations for the election of directors or any other
business desired by stockholders to be conducted at a meeting, the 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 stockholders.
Item 2. Exhibits.
Exhibit No. Exhibit
3.1 Certificate of Incorporation of the Registrant.
3.2 Bylaws of the Registrant.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
NOBLE INTERNATIONAL, LTD.
Date: June 30, 1999 By: /s/ Michael C. Azar
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Michael C. Azar,
Secretary and General Counsel
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Exhibit 3.1
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.
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ARTICLE V
Incorporator
The incorporator is Teresa Tormey Fineman, Esq., 500 Newport Center
Drive, Suite 700, Newport Beach, California 92660.
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.
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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: June 28, 1999
/s/ Teresa Tormey Fineman
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Teresa Tormey Fineman, Esq., Incorporator
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Exhibit 3.2
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.
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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 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
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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.
(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.
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(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 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
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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 by 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 No Action Without a Meeting. No 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.
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 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.
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(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 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.
2.11 Stockholder Proposals at Annual Meetings.
(a) If any stockholder notifies the Corporation of his
intention to present a proposal for action at a forthcoming meeting of the
Corporation's stockholders, the Corporation shall set forth the proposal in its
proxy statement and identify it in its form of proxy and provide means by which
security holders can specify a choice between approval or disapproval of, or
abstention with respect to, such proposal. Notwithstanding the foregoing, the
Corporation shall not be required to include the proposal in its proxy statement
or form of proxy unless the stockholder (herein the "proponent") has complied
with the requirements of Rule 14a-8 under the Securities Exchange Act of 1934,
as amended:
(1) At the time he submits the proposal, the
proponent shall be a record or beneficial owner of at least 1% or $1,000 in
market value of securities entitled to be voted at the meeting and have held
such securities for at least one year, and he shall continue to own such
securities through the date on which the meeting is held. If the Corporation
requests documentary support for a proponent's claim that he is the beneficial
owner of at least 1% or $1,000 in market value of such voting securities of the
Corporation or that he has been a beneficial owner of the securities for one or
more years, the Corporation shall make such request within 14 calendar days
after receiving the security holder proposal and the proponent shall furnish
appropriate documentation within 21 calendar days after receiving the request.
Appropriate documentation of the proponent's claim of beneficial ownership shall
include:
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(i) a written statement by a record owner or
an independent third party, accompanied by the proponent's written statement
that the proponent intends to continue ownership of such securities through the
date on which the meeting is held; or
(ii) a copy of a Schedule 13D, Schedule 13G,
Form 13F, Form 3 and/or Form 4, or amendments thereto, filed with the Securities
and Exchange Commission and furnished to the Corporation by the proponent,
provided that such filings indicate the proponent's beneficial ownership as of
or prior to the date on which the relevant one year period commences, and are
supported by
(A) a copy of all subsequent
amendments reporting a change in ownership level,
(B) the proponent's affidavit,
declaration, affirmation or other similar document provided for under applicable
state law attesting that the proponent continued to be the beneficial owner of
at least 1% or $1,000 in market value of such voting securities of the
Corporation throughout the required one year period and as of the date of the
affidavit, declaration, affirmation or other similar document provided for under
applicable state law, and
(C) the proponent's written
statement that the proponent intends to continue ownership of such securities
through the date on which the meeting is held.
In the event the Corporation includes the proponent's proposal in its proxy
soliciting material for the meeting and the proponent fails to comply with the
requirement that he continuously hold such securities through the meeting date,
the Corporation shall not be required to include any proposals submitted by the
proponent in its proxy material for any meeting held in the following two
calendar years.
(2) At the time he submits a proposal, a proponent
shall provide Corporation in writing with his name, address, the number of the
Corporation's voting securities that he holds of record or beneficially, the
dates upon which he acquired such securities, and documentary support for a
claim of beneficial ownership. A proposal may be presented at the meeting either
by the proponent or his representative who is qualified under state law to
present the proposal on the proponent's behalf at the meeting. In the event that
the proponent or his representative fails, without good cause, to present the
proposal for action at the meeting, the Corporation shall not be required to
include any proposals submitted by the proponent in its proxy solicitation
material for any meeting held in the following two calendar years.
(3) The proponent shall submit his proposal
sufficiently far in advance of the meeting so that it is received by the
Corporation within the following time periods:
(i) A proposal to be presented at an annual
meeting shall be received at the Corporation's principal executive offices not
less than 120 days in advance of the date of the Corporation's proxy statement
released to security holders in connection with the previous year's annual
meeting of security holders, except that if no annual meeting was held in the
previous year or the date of the annual meeting has been changed by more than 30
calendar days
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from the date contemplated at the time of the previous year's proxy statement, a
proposal shall be received by the Corporation a reasonable time before the
solicitation is made.
(ii) A proposal to be presented at any
meeting other than an annual meeting specified in paragraph (a)(3)(i) of this
section shall be received a reasonable time before the solicitation is made.
(b) The number of proposals, forms of supporting statement,
identification of the proponent in the Corporation's proxy statement and
circumstances under which the Corporation may omit a proposal shall be
determined in accordance with Rule 14a-8 under the Securities Exchange Act of
1934, as amended.
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 Section 2.11. 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 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 seven (7) 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.
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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
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.
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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 Chief Executive Officer, 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.
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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 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.
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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.
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.
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ARTICLE IV
OFFICERS
4.1 Officers and Agents. The Board of Directors, at its first meeting
after each annual meeting of shareholders, shall elect a President, a Secretary
and a Treasurer, and may also elect and designate as officers a Chairperson of
the Board, a Vice Chairperson of the Board and one or more Executive Vice
Presidents, Vice Presidents, Assistant Vice Presidents, Assistant Secretaries
and Assistant Treasurers. The Board of Directors may also from time to time
appoint, or delegate authority to the Corporation's chief executive officer to
appoint, such other officers and agents as it deems advisable. Any number of
offices may be held by the same person, but an officer shall not execute,
acknowledge or verify an instrument in more than one capacity if the instrument
is required by law to be executed, acknowledged or verified by two or more
officers. An officer has such authority and shall perform such duties in the
management of the Corporation as provided in these Bylaws, or as may be
determined by resolution of the Board of Directors not inconsistent with these
Bylaws, and as generally pertain to their offices, subject to the control of the
Board of Directors.
4.2 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.
4.3 Term. Each officer of the Corporation shall hold office for the
term for which he or she is elected or appointed and until his or her successor
is elected or appointed and qualified, or until his or her resignation or
removal. The election or appointment of an officer does not, by itself, create
contract rights.
4.4 Removal. An officer elected or appointed by the Board of Directors
may be removed by the Board of Directors with or without cause. An officer
elected by the stockholders may be removed, with or without cause, only by vote
of the stockholders, but his or her authority to act as an officer may be
suspended by the Board of Directors for cause. The removal of an officer shall
be without prejudice to his or her contract rights, if any.
4.5 Resignation. An officer may resign by written notice to the
Corporation. The resignation is effective upon its receipt by the Corporation or
at a subsequent time specified in the notice of resignation.
4.6 Vacancies. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors.
4.7 Chairperson of the Board. The Chairperson of the Board, if such
office is filled, shall be a Director and shall preside at all stockholders' and
Board of Directors' meetings.
4.8 Chief Executive Officer. The Chairperson of the Board, if any, or
the President, as designated by the Board, shall be the chief executive officer
of the Corporation and shall have the general powers of supervision and
management of the business and affairs of the Corporation
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usually vested in the chief executive officer of a corporation and shall see
that all orders and resolutions of the Board of Directors are carried into
effect. The chief executive officer may delegate to the other officers such of
his or her authority and duties at such time and in such manner as he or she
deems advisable.
4.9 President. If the Chairperson of the Board is designated by the
Board as the Corporation's chief executive officer, the President shall be the
chief operating officer of the Corporation, shall assist the Chairperson of the
Board in the supervision and management of the business and affairs of the
Corporation and, in the absence of the Chairperson of the Board, shall preside
at all stockholders' and Board of Directors' meetings. The President may
delegate to the officers other than the Chairperson of the Board, if any, such
of his or her authority and duties at such time and in such manner as he or she
deems appropriate.
4.10 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.
4.11 Vice Presidents. The Vice Presidents shall assist and act under
the direction of the Chairman of the Board and President. The Board of Directors
may grant other Vice Presidents titles which describe their functions or specify
their order of seniority. In the absence or disability of the President, the
authority of the President shall descend to the Vice Presidents in the order of
seniority indicated by their titles or otherwise specified by the Board. If not
specified by their titles or the Board, the authority of the President shall
descend to the Vice Presidents, in the order of their seniority in such office.
4.12 Secretary. The Secretary shall act under the direction of the
Corporation's chief executive officer and President. The Secretary shall attend
all stockholders' and Board of Directors' meetings, record minutes of the
proceedings and maintain the minutes and all documents evidencing corporate
action taken by written consent of the stockholders and Board of Directors in
the Corporation's minute book. The Secretary shall perform these duties for
Board committees when required. The Secretary shall see to it that all notices
of stockholders' meetings and special Board of Directors' meetings are duly
given in accordance with applicable law, the Articles of Incorporation and these
Bylaws. The Secretary shall have custody of the Corporation's seal and, when
authorized by the Corporation's chief executive officer, President or the Board
of Directors, shall affix the seal to any instrument requiring it and attest
such instrument.
4.13 Chief Financial Officer (Treasurer). The Chief Financial Officer
(Treasurer) shall act under the direction of the Corporation's chief executive
officer and President. The Chief Financial Officer (Treasurer) shall have
custody of the corporate funds and securities and shall keep full and accurate
accounts of the Corporation's assets, liabilities, receipts and disbursements in
books belonging to the Corporation. The Chief Financial Officer (Treasurer)
shall deposit all moneys and other valuables in the name and to the credit of
the Corporation in such depositories as may be designated bu the Board of
Directors. The Chief Financial Officer (Treasurer) shall disburse the funds of
the Corporation as may be ordered by the Corporation's chief executive
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officer, the President and the Board of Directors, taking proper vouchers for
such disbursements, and shall render to the Corporation's chief executive
officer, the President and the Board of Directors (at its regular meetings or
whenever they request it) an account of all his or her transactions as Chief
Financial Officer (Treasurer) and of the financial condition of the Corporation.
If required by the Board of Directors, the Chief Financial Officer (Treasurer)
shall give the Corporation a bond for the faithful discharge of his or her
duties in such amount and with such surety as the Board prescribes.
4.14 Assistant Vice Presidents, Secretaries and Treasurers. The
Assistant Vice Presidents, Assistant Secretaries and Assistant Treasurers, if
any, shall act under the direction of the Corporation's chief executive officer,
the President and the officer they assist. In the order of their seniority, the
Assistant Secretaries shall, in the absence or disability of the Secretary,
perform the duties and exercise the authority of the Secretary. The Assistant
Treasurers, in the order of their seniority, shall, in the absence or disability
of the Treasurer, perform the duties and exercise the authority of the
Treasurer.
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.
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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 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
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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.
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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
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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 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.
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C E R T I F I C A T E O F S E C R E T A R Y
I, the undersigned, do hereby certify:
1. That I am the duly elected and acting Secretary of Noble
International, Ltd., a Delaware corporation; and
2. That the foregoing Bylaws, comprising nineteen (19) pages,
constitute the Bylaws of said Corporation as duly adopted by the incorporator of
said Corporation and as duly approved by the board of directors of said
Corporation by unanimous written consent effective as of June 29, 1999.
IN WITNESS WHEREOF, I have hereunto subscribed my name and
affixed the seal of said Corporation effective as of June 29, 1999.
/s/ Michael C. Azar
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Michael C. Azar, Secretary
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