EXHIBIT 3.7
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
AKER PLASTICS COMPANY INC.
The Articles of Incorporation of Aker Plastics Company Inc. (the
"Corporation"), were filed with the Secretary of State on February 1, 1971,
pursuant to an Agreement and Plan of Merger dated as of October 25, 2002, the
Corporation hereby adopts these Amended and Restated Articles of Incorporation
which are being duly executed and filed pursuant to the Indiana Business
Corporation Law (the "Law").
ARTICLE I
NAME
The name of the Corporation is Aker Plastics Company Inc.
ARTICLE II
PURPOSES AND POWERS
Section 2.1. Purposes of the Corporation. The purposes for which the
Corporation is formed are (a) to engage in commercial business, and to carry on
such activities of every kind or nature as may be allied or incidental to such
general business, and (b) to engage in the transaction of any or all lawful
business for which corporations may now or hereafter be incorporated under the
Corporation Law.
Section 2.2. Powers of the Corporation. The Corporation shall have
(a) all powers now or hereafter authorized by or vested in corporations pursuant
to the provisions of the Corporation Law, (b) all powers now or hereafter vested
in corporations by common law or any other statute or act, and (c) all powers
authorized by or vested in the Corporation by the provisions of these Amended
and Restated Articles of Incorporation or by the provisions of its Bylaws as
from time to time in effect.
ARTICLE III
TERM OF EXISTENCE
The period during which the Corporation shall continue is perpetual.
ARTICLE IV
REGISTERED OFFICE AND AGENT
The street address of the Corporation's registered office is 205
West Jefferson Boulevard, Suite 250, South Bend, Indiana 46601 and the name of
its registered agent at such office is Peter G. Trybula.
ARTICLE V
SHARES
Section 5.1. Authorized Class and Number of Shares. The capital
stock of the Corporation shall be of one class and kind, which may be referred
to as common shares. The total number of shares which the Corporation has
authority to issue shall be One Million (1,000,000) shares. The Corporation's
shares do not have any par or stated value, except that, solely for the purpose
of any statute or regulation of any jurisdiction imposing any tax or fee based
upon the capitalization of the Corporation, each of the Corporation's shares
shall have no par value per share.
Section 5.2. Voting Rights of Shares. Except as otherwise provided
by the Corporation Law and subject to such shareholder disclosure and
recognition procedures (which may include voting prohibition sanctions) as the
Corporation may by action of its Board of Directors establish, the Corporation's
shares have unlimited voting rights and each outstanding share shall, when
validly issued by the Corporation, entitle the record holder thereof to one vote
at all shareholders' meetings on all matters submitted to a vote of the
shareholders of the Corporation.
Section 5.3. Other Terms of Shares. The Corporation's shares shall
be equal in every respect insofar as their relationship to the Corporation is
concerned (but such equality of rights shall not imply equality of treatment as
to redemption or other acquisition of shares by the Corporation) The holders of
shares shall be entitled to share ratably in such dividends or other
distributions (other than purchases, redemptions or other acquisitions of shares
by the Corporation), if any, as are declared and paid from time to time on the
shares at the discretion of the Board of Directors. In the event of any
liquidation, dissolution or winding up of the Corporation, either voluntary or
involuntary, the holders of shares shall be entitled to share, ratably according
to the number of shares held by them, in all remaining assets of the Corporation
available for distribution to its shareholders.
When the Corporation receives the consideration specified in a
subscription agreement entered into before incorporation, or for which the Board
of Directors authorized the issuance of shares, as the case may be, the shares
issued therefor shall be fully paid and nonassessable.
The Corporation shall have the power to declare and pay dividends or
other distributions upon the issued and outstanding shares of the Corporation,
subject to the limitation that a dividend or other distribution may not be made
if, after giving it effect, the Corporation
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would not be able to pay its debts as they become due in the usual course of
business or the Corporation's total assets would be less than its total
liabilities. The Corporation shall have the power to issue shares as a share
dividend or other distribution in respect of issued and outstanding shares.
The Corporation shall have the power to acquire (by purchase,
redemption or otherwise), hold, own, pledge, sell, transfer, assign, reissue,
cancel or otherwise dispose of the shares of the Corporation in the manner and
to the extent now or hereafter permitted by the laws of the State of Indiana
(but such power shall not imply an obligation on the part of the owner or holder
of any share to sell or otherwise transfer such share to the Corporation),
including the power to purchase, redeem or otherwise acquire the Corporation's
own shares, directly or indirectly, and without pro rata treatment of the owners
or holders thereof, unless, after giving effect thereto, the Corporation would
not be able to pay its debts as they become due in the usual course of business
or the Corporation's total assets would be less than its total liabilities.
Shares of the Corporation purchased, redeemed or otherwise acquired by it shall
constitute authorized but unissued shares, unless the Board of Directors adopts
a resolution providing that such shares constitute authorized and issued but not
outstanding shares.
The Board of Directors of the Corporation may dispose of, issue and
sell shares in accordance with, and in such amounts as may be permitted by, the
laws of the State of Indiana and the provisions of these Amended and Restated
Articles of Incorporation and for such consideration, at such price or prices,
at such time or times and upon such terms and conditions (including the
privilege of selectively repurchasing the same) as the Board of Directors of the
Corporation shall determine, without the authorization or approval by any
shareholders of the Corporation. Shares may be disposed of, issued and sold to
such persons, firms or corporations as the Board of Directors may determine,
without any preemptive or other right on the part of the owners or holders of
other shares of the Corporation to acquire such shares by reason of their
ownership of such other shares.
ARTICLE VI
DIRECTORS
Section 6.1. Number. The initial Board of Directors shall be
comprised of three (3) members, which number may be changed by amendment to the
Bylaws.
Section 6.2. Qualifications. Directors need not be shareholders of
the Corporation or residents of this or any other state in the United States.
Section 6.3. Vacancies. Vacancies occurring in the Board of
Directors shall be filled in the manner provided in the Bylaws or, if the Bylaws
do not provide for the filling of vacancies, in the manner provided by the
Corporation Law. The Bylaws may also provide that in certain circumstances
specified therein, vacancies occurring in the Board of Directors may be filled
by vote of the shareholders at a special meeting called for that purpose or at
the next annual meeting of shareholders.
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Section 6.4. Liability of Directors. A Director's responsibility to
the Corporation shall be limited to discharging his or her duties as a Director,
including his duties as a member of any committee of the Board of Directors upon
which he or she may serve, in good faith, with the care an ordinarily prudent
person in a like position would exercise under similar circumstances, and in a
manner the Director reasonably believes to be in the best interests of the
Corporation, all based on the facts then known to the Director.
In discharging his or her duties, a Director is entitled to rely on
information, opinions, reports, or statements, including financial statements
and other financial data, if prepared or presented by:
(a) One (1) or more officers or employees of the Corporation whom the
Director reasonably believes to be reliable and competent in the matters
presented;
(b) Legal counsel, public accountants, or other persons as to matters the
Director reasonably believes are within such person's professional or expert
competence; or
(c) A committee of the Board of which the Director is not a member if the
Director reasonably believes the Committee merits confidence;
but a Director is not acting in good faith if the Director has knowledge
concerning the matter in question that makes reliance otherwise permitted by
this Section 6.4 unwarranted. A Director may, in considering the best interests
of the Corporation, consider the effects of any action on shareholders,
employees, suppliers and customers of the Corporation, and communities in which
offices or other facilities of the Corporation are located, and any other
factors the Director considers pertinent.
A Director shall not be liable for any action taken as a Director,
or any failure to take any action, unless (a) the Director has breached or
failed to perform the duties of the Director's office in compliance with this
Section 6.4, and (b) the breach or failure to perform constitutes willful
misconduct or recklessness.
Section 6.5. Removal of Directors. Any one or more of the members of
the Board of Directors may be removed, with or without cause, only at a meeting
of the shareholders called expressly for that purpose, by the affirmative vote
of the holders of outstanding shares representing at least a majority of all the
votes then entitled to be cast at an election of Directors. No Director may be
removed except as provided in this Section 6.5.
ARTICLE VII
PROVISIONS FOR REGULATION OF BUSINESS AND CONDUCT OF AFFAIRS OF CORPORATION
Section 7.1. Meetings of Shareholders. Meetings of the shareholders
of the Corporation shall be held at such time and at such place, either within
or without the State of Indiana, as may be stated in or fixed in accordance with
the Bylaws of the Corporation and specified in the respective notices or waivers
of notice of any such meetings.
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Section 7.2. Special Meetings of Shareholders. Special meetings of
the shareholders, for any purpose or purposes, unless otherwise prescribed by
the Corporation Law, may be called at any time by the Board of Directors or the
person or persons authorized to do so by the Bylaws and shall be called by the
Board of Directors if the Secretary of the Corporation receives one (1) or more
written, dated and signed demands for a special meeting, describing in
reasonable detail the purpose or purposes for which it is to be held, from the
holders of shares representing at least twenty-five percent (25%) of all the
votes entitled to be cast on any issue proposed to be considered at the proposed
special meeting. If the Secretary receives one (1) or more proper written
demands for a special meeting of shareholders, the Board of Directors may set a
record date for determining shareholders entitled to make such demand.
Section 7.3. Meetings of Directors. Meetings of the Board of
Directors of the Corporation shall be held at such place, either within or
without the State of Indiana, as may be authorized by the Bylaws and specified
in the respective notices or waivers of notice of any such meetings or otherwise
specified by the Board of Directors. Unless the Bylaws provide otherwise (b)
regular meetings of the Board of Directors may be held without notice of the
date, time, place, or purpose of the meeting and (b) the notice for a special
meeting need not describe the purpose or purposes of the special meeting.
Section 7.4. Action Without Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors or shareholders,
or of any committee of such Board, may be taken without a meeting, if the action
is taken by all members of the Board or all shareholders entitled to vote on the
action, or by all members of such committee, as the case may be. The action must
be evidenced by one (1) or more written consents describing the action taken,
signed by each Director, or all the shareholders entitled to vote on the action,
or by each member of such committee, as the case may be, and, in the case of
action by the Board of Directors or a committee thereof, included in the minutes
or filed with the corporate records reflecting the action taken or, in the case
of action by the shareholders, delivered to the Corporation for inclusion in the
minutes or filing with the corporate records. Action taken under this Section
7.4 is effective when the last director, shareholder or committee member, as the
case may be, signs the consent, unless the consent specifies a different prior
or subsequent effective date, in which case the action is effective on or as of
the specified date. Such consent shall have the same effect as a unanimous vote
of all members of the Board, or all shareholders, or all members of the
committee, as the case may be, and may be described as such in any document.
Section 7.5. Bylaws. The Board of Directors shall have the exclusive
power to make, alter, amend or repeal, or to waive provisions of, the Bylaws of
the Corporation by the affirmative vote of a majority of the entire number of
Directors at the time, except as expressly provided by the Corporation Law. Any
provisions for the regulation of the business and management of the affairs of
the Corporation not stated in these Amended and Restated Articles of
Incorporation may be stated in the Bylaws. The Board of Directors may adopt
Emergency Bylaws of the Corporation and shall have the exclusive power (except
as may otherwise be provided therein) to make, alter, amend or repeal, or to
waive provisions of, the Emergency Bylaws by the affirmative vote of a majority
of the entire number of Directors at such time.
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Section 7.6. Interest of Directors.
(a) A conflict of interest transaction is a transaction with the
Corporation in which a Director of the Corporation has a direct or indirect
interest. A conflict of interest transaction is not voidable by the Corporation
solely because of the Director's interest in the transaction if any one (1) of
the following is true:
(1) The material facts of the transaction and the Director's
interest were disclosed or known to the Board of Directors or a committee
of the Board of Directors and the Board of Directors or committee
authorized, approved, or ratified the transaction.
(2) The material facts of the transaction and the Director's
interest were disclosed or known to the shareholders entitled to vote and
they authorized, approved, or ratified the transaction.
(3) The transaction was fair to the Corporation.
(b) For purposes of this Section 7.6, a Director of the Corporation
has an indirect interest in a transaction if:
(1) Another entity in which the Director has a material financial
interest or in which the Director is a general partner is a party to the
transaction; or
(2) Another entity of which the Director is a director, officer, or
trustee is a party to the transaction and the transaction is, or is
required to be, considered by the Board of Directors of the Corporation.
(c) For purposes of Section 7.6(a)(1), a conflict of interest
transaction is authorized, approved, or ratified if it receives the affirmative
vote of a majority of the Directors on the Board of Directors (or on the
committee) who have no direct or indirect interest in the transaction, but a
transaction may not be authorized, approved, or ratified under this section by a
single Director. If a majority of the Directors who have no direct or indirect
interest in the transaction vote to authorize, approve, or ratify the
transaction, a quorum shall be deemed present for the purpose of taking action
under this Section 7.6. The presence of, or a vote cast by, a Director with a
direct or indirect interest in the transaction does not affect the validity of
any action taken under Section 7.6(0(l), if the transaction is otherwise
authorized, approved, or ratified as provided in such subsection.
(d) For purposes of Section 7.6(a)(2), shares owned by or voted
under the control of a Director who has a direct or indirect interest in the
transaction, and shares owned by or voted under the control of an entity
described in Section 7.6(b), may be counted in such a vote of shareholders to
determine whether to authorize, approve or ratify a conflict of interest
transaction.
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Section 7.7. Nonliability of Shareholders. Shareholders of the
Corporation are not personally liable for the acts or debts of the Corporation,
nor is private property of shareholders subject to the payment of corporate
debts.
Section 7.8. Indemnification of Officers, Directors and Other
Eligible Persons.
(a) To the extent not inconsistent with applicable law, every
Eligible Person shall be indemnified by the Corporation against all Liability
and reasonable Expense that may be incurred by him or her in connection with or
resulting from any Claim, (i) if such Eligible Person is Wholly Successful with
respect to the Claim, or (ii) if not Wholly Successful, then if such Eligible
Person is determined, as provided in either Section 7.8(f) or 7.8(g), to have
acted in good faith, in what he or she reasonably believed to be the best
interests of the Corporation or at least not opposed to its best interests and,
in addition, with respect to any criminal claim is determined to have had
reasonable cause to believe that his or her conduct was lawful or had no
reasonable cause to believe that his or her conduct was unlawful. The
termination of any Claim, by judgment, order, settlement (whether with or
without court approval), or conviction or upon a plea of guilty or of nolo
contendere, or its equivalent, shall not create a presumption that an Eligible
Person did not meet the standards of conduct set forth in clause (ii) of this
subsection (a). The actions of an Eligible Person with respect to an employee
benefit plan subject to the Employee Retirement Income Security Act of 1974
shall be deemed to have been taken in what the Eligible Person reasonably
believed to be the best interests of the Corporation or at least not opposed to
its best interests if the Eligible Person reasonably believed he or she was
acting in conformity with the requirements of such Act or he or she reasonably
believed his or her actions to be in the interests of the participants in or
beneficiaries of the plan.
(b) The term "Claim" as used in this Section 7.8 shall include every
pending, threatened or completed claim, action, suit or proceeding and all
appeals thereof (whether brought by or in the right of this Corporation or any
other corporation or otherwise), civil, criminal, administrative or
investigative, formal or informal, in which an Eligible Person may become
involved, as a party or otherwise:
(i) by reason of his or her being or having been an Eligible Person,
or
(ii) by reason of any action taken or not taken by him or her in his
or her capacity as an Eligible Person, whether or not he or she continued
in such capacity at the time such Liability or Expense shall have been
incurred.
(c) The term "Eligible Person" as used in this Section 7.8 shall
mean every person (and the estate, heirs and personal representatives of such
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, agent or fiduciary of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan or other organization
or entity, whether for profit or not. An Eligible Person shall also be
considered to have been serving an employee benefit plan at the request of the
Corporation if his or her duties to the Corporation also imposed duties on, or
otherwise involved services by, him or her to the plan or to participants in or
beneficiaries of the plan.
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(d) The terms "Liability" and "Expense" as used in this Section 7.8
shall include, but shall not be limited to, counsel fees and disbursements and
amounts of judgments, fines or penalties against (including excise taxes
assessed with respect to an employee benefit plan), and amounts paid in
settlement by or on behalf of, an Eligible Person.
(e) The term "Wholly Successful" as used in this Section 7.8 shall
mean (i) termination of any Claim against the Eligible Person in question
without any finding of liability or guilt against him, (ii) approval by a court
or agency, with knowledge of the indemnity herein provided, of a settlement of
any Claim, or (iii) the expiration of a reasonable period of time after the
threatened making of any Claim without commencement of an action, suit or
proceeding and without any payment or promise made to induce a settlement.
(f) Every Eligible Person claiming indemnification hereunder (other
than one who has been Wholly Successful with respect to any Claim) shall be
entitled to indemnification (i) if special independent legal counsel, which may
be regular counsel of the Corporation or other disinterested person or persons,
in either case selected by the Board of Directors, whether or not a
disinterested quorum exists (such counsel or person or persons being hereinafter
called the "Referee"), shall deliver to the Corporation a written finding that
such Eligible Person has met the standards of conduct set forth in Section
7.8(a)(ii), and (ii) if the Board of Directors, acting upon such written
finding, so determines. The Board of Directors shall, if an Eligible Person is
found to be entitled to indemnification pursuant to the preceding sentence, also
determine the reasonableness of the Eligible Person's Expenses. The Eligible
Person claiming indemnification shall, if requested, appear before the Referee,
answer questions that the Referee deems relevant and shall be given ample
opportunity to present to the Referee evidence upon which he or she relies for
indemnification. The Corporation shall, at the request of the Referee, make
available facts, opinions or other evidence in any way relevant to the Referee's
finding that are within the possession or control of the Corporation.
(g) If an Eligible Person claiming indemnification pursuant to
Section 7.8(f) is found not to be entitled thereto, or if the Board of Directors
fails to select a Referee under Section 7.8(f) within a reasonable amount of
time following a written request of an Eligible Person for the selection of a
Referee, or if the Referee or the Board of Directors fails to make a
determination under Section 7.8(1) within a reasonable amount of time following
the selection of a Referee, the Eligible Person may apply for indemnification
with respect to a Claim to a court of competent jurisdiction, including a court
in which the Claim is pending against the Eligible Person. On receipt of an
application, the court, after giving notice to the Corporation and giving the
Corporation ample opportunity to present to the court any information or
evidence relating to the claim for indemnification that the Corporation deems
appropriate, may order indemnification if it determines that the Eligible Person
is entitled to indemnification with respect to the Claim because such Eligible
Person met the standards of conduct set forth in Section 7.8(a)(ii). If the
court determines that the Eligible Person is entitled to indemnification, the
court shall also determine the reasonableness of the Eligible Person's Expenses.
(h) The rights of indemnification provided in this Section 7.8 shall
be in addition to any rights to which any Eligible Person may otherwise be
entitled. Irrespective of the provisions of this Section 7.8, the Board of
Directors may, at any time and from time to time, (i) approve indemnification of
any Eligible Person to the full extent permitted by the provisions
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of applicable law at the time in effect, whether on account of past or future
transactions, and (ii) authorize the Corporation to purchase and maintain
insurance on behalf of any Eligible Person against any Liability asserted
against him or any Liability or Expense incurred by him or her in any such
capacity, or arising out of his or her status as such, whether or not the
Corporation would have the power to indemnify him against such Liability or
Expense.
(i) Expenses incurred by an Eligible Person with respect to any
Claim, may be advanced by the Corporation (by action of the Board of Directors,
whether or not a disinterested quorum exists) prior to the final disposition
thereof upon receipt of an undertaking by or on behalf of the Eligible Person to
repay such amount if he or she is determined not to be entitled to
indemnification.
(j) The provisions of this Section 7.8 shall be deemed to be a
contract between the Corporation and each Eligible Person, and an Eligible
Person's rights hereunder shall not be diminished or otherwise adversely
affected by any repeal, amendment or modification of this Section 7.8 that
occurs subsequent to such person becoming an Eligible Person.
(k) The provisions of this Section 7.8 shall be applicable to Claims
made or commenced after the adoption hereof, whether arising from acts or
omissions to act occurring before or after the adoption hereof.
ARTICLE VIII
BOARD OF DIRECTORS
The name and post office address of the members of the current Board
of Directors of the Corporation are as follows:
Name Address
---- --------
Richard Garneau [address]
Jeff Kubsch [address]
Larry Winters [address]
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1. Amendment or Repeal. Except as otherwise expressly
provided for in these Amended and Restated Articles of Incorporation, the
Corporation shall be deemed, for all purposes, to have reserved the right to
amend, alter, change or repeal any provision contained in these Amended and
Restated Articles of Incorporation to the extent and in the
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manner now or hereafter permitted or prescribed by statute, and all rights
herein conferred upon shareholders are granted subject to such reservation.
Section 10.2. Headings. The headings of the Amended and Restated
Articles and Sections of these Amended and Restated Articles of Incorporation
have been inserted for convenience of reference only and do not in any way
define, limit, construe or describe the scope or intent of any Article or
Section hereof.
IN WITNESS WHEREOF, the undersigned, being a duly authorized officer
of the Corporation, executes these Amended and Restated Articles of
Incorporation this 25th day of October, 2002.
/s/Richard Garneau
------------------------------
Richard Garneau, President
This instrument was prepared by Peter G. Trybula, Attorney at Law, Baker &
Daniels, Suite 250, 205 W. Jefferson Blvd., South Bend, Indiana 46601.
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