Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
NN, INC.
1. The name of the corporation is NN, Inc. The Corporation was
originally incorporated under the name "NN Ball & Roller, Inc." The original
Certificate of Incorporation was filed with the Secretary of the State of
Delaware on October 12, 1993.
2. This Restated Certificate of Incorporation has been duly adopted in
accordance with Section 245 of the General Corporation Law of the State of
Delaware. This document only restates and integrates and does not further amend
the provisions of the Certificate of Incorporation of this Corporation as
theretofore amended or supplemented, and there is no discrepancy between those
provisions and the provisions of this Restated Certificate of Incorporation.
The Certificate of Incorporation of the Corporation is hereby restated
and integrated to read in its entirety as follows:
ARTICLE I
NAME
The name of the corporation (hereinafter called the "Corporation") is
NN, Inc.
ARTICLE II
REGISTERED OFFICE
The registered office of the Corporation in the State of Delaware is
located at Corporation Trust Center, 1209 West Orange Street, in the City of
Wilmington, County of New Castle. The name and address of the Corporation's
registered agent is The Corporation Trust Company, Corporation Trust Center,
1209 Orange Street, Wilmington, Delaware 19801.
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 the State of Delaware.
ARTICLE IV
CAPITAL STOCK
SECTION 1. The total number of shares of capital stock that the
Corporation shall have the authority to issue is 50,000,000 shares, consisting
of Forty-Five Million (45,000,000) shares of common stock, par value $.01 per
share ("Common Stock"), and 5,000,000 shares of preferred stock, par value $.01
per share ("Preferred Stock"). Shares of Preferred Stock may be issued from time
to time in one or more series as may be determined by the Board of Directors.
Each series shall be distinctly designated. The Board of Directors of the
Corporation is hereby expressly granted the authority to fix, by resolution or
resolutions adopted prior to the issuance of any shares of each particular
series of Preferred Stock and incorporated in a certificate of designations
filed with the Secretary of State of the State of Delaware, the designation,
powers (including voting powers and voting rights), preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, if any, of such series, including, but
without limiting the generality of the foregoing, the following:
(a) the distinctive designation of such series, the number of shares
which shall constitute such series, which number may be increased or
decreased (but not below the number of shares then outstanding) from time
to time by action of the Board of Directors, and the stated value thereof,
if different from the par value thereof;
(b) the dividend rate, the times of payment of dividends on the shares
of such series, whether dividends shall be cumulative, and, if so, from
what date or dates, and the preference or relation which such dividends
will bear to the dividends payable on any shares of stock of any other
class or any other series of this class;
(c) whether shares of the series shall be redeemable, and, if so, the
terms and conditions of such redemption, including the date or dates or
event or events upon or after the occurrence of which they shall be
redeemable, and the amount and type of consideration payable in case of
redemption, which amount per share may vary under different conditions and
at different redemption dates;
(d) whether or not the shares of such series shall be entitled to the
benefit of a retirement or sinking fund to be applied to the purchase or
redemption of such shares and, if so entitled, the amount of such fund and
the terms and provisions relative to the operation thereof;
(e) whether or not the shares of such series shall be convertible
into, or exchangeable for, any other shares of stock or other securities or
property of the Corporation or any other corporation or entity and, if so
convertible or exchangeable, the conversion price or prices, or the rates
of exchange, and any adjustments thereof, at which such conversion or
exchange may be made, and any other terms and conditions of such conversion
or exchange;
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(f) the rights of the shares of such series in the event of voluntary
or involuntary liquidation, merger, consolidation, distribution or sale of
assets, dissolution or winding up of the Corporation;
(g) whether or not the shares of such series shall have priority over
or parity with or be junior to the shares of any other class or series in
any respect, or shall be entitled to the benefit of limitations restricting
(i) the creation of indebtedness of the Corporation, (ii) the issuance of
shares of any other class or series having priority over or being on a
parity with the shares of such series in any respect, or (iii) the payment
of dividends on, the making of other distributions in respect of, or the
purchase or redemption of shares of any other class or series on a parity
with or ranking junior to the shares of such series as to dividends or
assets, and the terms of any such restrictions, or any other restriction
with respect to shares of any other class or series on a parity with or
ranking junior to the shares of such series in any respect;
(h) whether shares of the series shall have voting rights in addition
to the voting rights provided by law and, if so, the terms of such voting
rights, which may, without limiting the generality of the foregoing,
include (i) the right to more or less than one vote per share on any or all
matters voted upon by the Corporation's stockholders and (ii) the right to
vote, as a series by itself or together with other series of Preferred
Stock or together with all series of Preferred Stock as a class or with the
Common Stock as a class, upon such matters, under such circumstances and
upon such conditions as the Board of Directors may fix, including, without
limitation, the right, voting as a series by itself or together with other
series of Preferred Stock or together with all series of Preferred Stock as
a class, to elect one or more directors of the Corporation generally in the
event there shall have been a default in the payment of dividends on any
one or more series of Preferred Stock or under such other circumstances and
upon such conditions as the Board of Directors may determine; and
(i) any other powers, designations, preferences and relative,
participating, optional, or other special rights of such series, and the
qualifications, limitations or restrictions thereof, to the full extent now
or hereafter permitted by law.
The powers, designations, preferences and relative, participating,
optional and other special rights of each series of Preferred Stock, and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding. All shares of any one
series of Preferred Stock shall be identical in all respects to all other shares
of such series, except that shares of any one series issued at different times
may differ as to the dates from which dividends thereon shall be cumulative. The
relative powers, preferences and rights of each series of Preferred Stock in
relation to the powers, preferences and rights of each other series of Preferred
Stock shall, in each case, be as fixed from time to time by the Board of
Directors in the resolution or resolutions adopted pursuant to the authority
granted in this Section 1 of Article IV, and the consent, by class or series
vote or otherwise, of the holders of Preferred Stock of such of the series of
Preferred Stock as are from time to time outstanding shall not be required for
the issuance by the Board of Directors of any other series of Preferred Stock,
whether the powers, preferences and rights of such other series shall be fixed
by the Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of
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such outstanding series, or any of them; provided, however, that the Board of
Directors may provide in such resolution or resolutions adopted with respect to
any series of Preferred Stock that the consent of the holders of a majority (or
such greater proportion as shall be therein fixed) of the outstanding shares of
such series voting thereon shall be required for the issuance of shares of any
or all other series of Preferred Stock.
SECTION 2. A statement of the powers, designations, preferences,
rights, qualifications, limitations and restrictions in respect of the shares of
Common Stock is as follows:
(a) After the requirements with respect to preferential dividends on
the shares of any series of Preferred Stock shall have been met and after
the Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts and subject further to any other conditions which may be
fixed in accordance with the provisions of this Certificate of
Incorporation, then, but not otherwise, the holders of Common Stock shall
be entitled to receive such dividends, if any, as may be declared from time
to time by the Board of Directors on the Common Stock, which dividends
shall be paid out of assets legally available for the payment of dividends
and shall be distributed to such holders pro rata in accordance with the
number of shares of such Common Stock held by each such holder.
(b) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, after payment
shall have been made to the holders of Preferred Stock of the full amount
to which they shall be entitled as a preferential amount, the holders of
Common Stock shall be entitled to share, ratably according to the number of
shares of Common Stock held by them, in all remaining assets of the
Corporation available for distribution to its holders of Common Stock.
(c) Except as otherwise provided in this Certificate of Incorporation,
by applicable law, or by the provisions of the resolution or resolutions as
may be adopted by the Board of Directors pursuant to Section 1 of this
Article IV, the holders of Common Stock shall be entitled to vote on each
matter on which the stockholders of the Corporation shall be entitled to
vote, and each holder of Common Stock shall be entitled to one vote for
each share of such stock held by him.
SECTION 3. (a) No stockholder of the Corporation shall by reason of
his holding shares of any class of stock have any preemptive or preferential
rights to purchase or subscribe to any shares of any class of stock of the
Corporation, now or hereafter to be authorized, or any notes, debentures, bonds
or other securities convertible into or carrying options or warrants to purchase
shares of any class, now or hereafter to be authorized, whether or not the
issuance of any such shares, or such notes, debentures, bonds or other
securities, would adversely affect the dividend or voting rights of such
stockholder, other than such rights, if any, as the Board of Directors, in its
discretion from time to time, may grant and at such price as the Board of
Directors in its discretion may fix; and the Board of Directors may issue shares
of any class of the Corporation, or any notes, debentures, bonds, or other
securities convertible into or carrying options or warrants to purchase shares
of any class, without offering any such shares of any class, either in whole or
in part, to the existing stockholders of any class.
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(b) Cumulative voting of shares of any capital stock having voting
rights is prohibited.
ARTICLE V
BOARD OF DIRECTORS
SECTION 1. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors. Unless and except
to the extent that the By-Laws of the Corporation shall so require, the election
of directors of the Corporation need not be by written ballot.
SECTION 2. Subject to the rights of the holders of any series of
Preferred Stock to elect directors under specified circumstances, the number of
directors of the Corporation shall be fixed, and may be increased or decreased
from time to time, in such a manner as may be prescribed by the By-Laws. The
By-Laws also may contain any other provisions for the regulation and management
of the affairs of the Corporation not inconsistent with the law or this
Certificate of Incorporation.
SECTION 3. Commencing with the 1994 annual meeting of stockholders of
the Corporation, the directors, other than those who may be elected by the
holders of any series of Preferred Stock under specified circumstances, shall be
divided, with respect to the time for which they severally hold office, into
three classes, as nearly equal in number as is reasonably possible, with the
term of office of the first class to expire at the 1995 annual meeting of
stockholders the term of office of the Second class to expire at the 1996 annual
meeting of stockholders and the term of office of the third class to expire at
the 1997 annual meeting of stockholders, with each director to hold office until
his or her successor shall have been duly elected and qualified. At each annual
meeting of stockholders, commencing with the 1995 annual meeting, directors
elected to succeed those directors whose terms then expire shall be elected for
a term of office to expire at the third succeeding annual meeting of
stockholders after their election, with each director to hold office until his
or her successor shall have been duly elected and qualified.
SECTION 4. Subject to the rights of the holders of any series of
Preferred Stock with respect to such series of Preferred Stock, any director, or
the entire Board of Directors, may be removed from office at any time, with or
without cause, by the affirmative vote of the holders of at least 50% percent of
the voting power of all the then outstanding Voting Stock, voting together as a
single class. For the purpose of this Certificate of Incorporation, "Voting
Stock" shall mean the shares of capital stock of the Corporation entitled to
vote generally in the election of directors.
SECTION 5. Subject to applicable law and the rights of the holders of
any series of Preferred Stock with respect to such series of Preferred Stock,
vacancies resulting from death, resignation, retirement, disqualification,
removal from office or other cause, and newly created directorships resulting
from any increase in the authorized number of directors, may be filled by (i)
the affirmative vote of a majority of the remaining directors, though less than
a quorum of the Board of Directors, or (ii) by a plurality of the votes cast at
a meeting of the stockholders.
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Directors so chosen shall hold office for a term expiring at the annual meeting
of stockholders at which the term of office of the class to which they have been
elected expires and until such director's successor shall have been duly elected
and qualified. No decrease in the number of authorized directors constituting
the Whole Board shall shorten the term of any incumbent director. For the
purpose of this Certificate of Incorporation, "Whole Board" shall mean the total
number of directors which the Corporation would have if there were no vacancies.
SECTION 6. Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
66 2/3 percent of the voting power of the then outstanding Voting Stock, voting
together as a single class, shall be required to amend, repeal or adopt any
provision inconsistent with Section 2 or Section 3 of this Article V.
ARTICLE VI
MAKING AND AMENDMENT OF BY-LAWS
SECTION 1. The Board of Directors, in furtherance and not in
limitation of the powers conferred by the laws of the State of Delaware and by
this Certificate of Incorporation, is expressly authorized to make, amend or
repeal the By-Laws of the Corporation; provided, however, that any such making,
amendment or repeal must be approved by resolution of the Board of Directors
adopted by the affirmative vote of not less than a majority of the total number
of directors then in office.
SECTION 2. By-Laws shall not be made, repealed, altered, amended or
rescinded by the stockholders of the Corporation except by the affirmative vote
of the holders of at least 66 2/3% of the voting power of the then outstanding
Voting Stock, voting together as a single class. Notwithstanding anything
contained in this Certificate of Incorporation to the contrary, the affirmative
vote of the holders of at least 66 2/3% of the voting power of the then
outstanding Voting Stock, voting together as a single class, shall be required
to amend or repeal, or adopt any provision inconsistent with, this Article VI.
ARTICLE VII
MEETINGS
SECTION 1. Subject to the rights of the holders of any series of
Preferred Stock with respect to such series of Preferred Stock, any action
required or permitted to be taken by the stockholders of the Corporation at any
annual or special meeting of such stockholders may be taken without a meeting,
without prior notice and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than two-thirds of the voting power of all the then
outstanding shares of stock of the Corporation entitled to vote on such action
and the writing or writings are filed with the minutes of proceedings of the
stockholders of the Corporation.
SECTION 2. Subject to the rights of the holders of any series of
Preferred Stock with respect to such series of Preferred Stock, special meetings
of the stockholders may be called
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only by the Chairman of the Board or by the Board of Directors pursuant to a
resolution adopted by a majority of the Whole Board. Except as provided herein,
no person shall have authority to call a special meeting of the stockholders.
SECTION 3. Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
66 2/3% of the voting power of the then outstanding Voting Stock, voting
together as a single class, shall be required to amend or repeal, or adopt any
provision inconsistent with, this Article VII.
ARTICLE VIII
ELIMINATION OF CERTAIN LIABILITY OF DIRECTORS
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the General Corporation Law of the
State of Delaware, or (iv) for any transaction from which the director derived
an improper personal benefit. If the General Corporation Law of the State of
Delaware is amended after the filing of this Certificate of Incorporation to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation, in
addition to the personal liability provided herein, shall be limited to the
fullest extent permitted by such law, as so amended. Any amendment or repeal of
this Article VIII shall not adversely affect any right or protection existing
hereunder in respect of any act or omission occurring prior to such amendment or
repeal.
ARTICLE IX
INDEMNIFICATION
SECTION 1. To the full extent permitted by Delaware law from time to
time in effect, and subject to the provisions of Section 2 of this Article IX,
the Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(whether or not by or in the right of the Corporation) by reason of the fact
that he 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
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believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
SECTION 2. Any indemnification under Section 1 of this Article IX
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper under the circumstances because he has met
the applicable standard of conduct set forth in said Section 1. Such
determination shall be made (1) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (2) if such a quorum in not obtainable, or, even if obtainable
and a quorum of disinterested directors so directs, by independent legal counsel
(compensated by the Corporation) in a written opinion, or (3) by the
stockholders.
SECTION 3. If a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 1 of this Article 9, or with
respect to any claim, issue or matter therein (to the extent that a portion of
his expenses can be reasonably allocated thereto), he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith.
SECTION 4. Expenses incurred in defending a civil, criminal,
administrative or investigative action, suit or proceeding, or threat thereof,
may be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding as authorized by the Board of Directors, whether a
disinterested quorum exists or not, upon receipt of an undertaking by or on
behalf of the director, officer, employee or agent to repay such amount unless
it shall ultimately be determined that he is entitled to be indemnified by the
Corporation as authorized in this Article IX.
SECTION 5. The indemnification provided by this Article IX shall not
be deemed exclusive of any other rights to which those indemnified 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, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
SECTION 6. 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 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 IX or of Section 145 of the
General Corporation Law of the State of Delaware.
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ARTICLE X
AMENDMENTS
Except as may be expressly provided in this Certificate of
Incorporation, the Corporation reserves the right at any time and from time to
time to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation in the manner now or hereafter provided by law, and
all rights, preferences and privileges of any kind whatsoever conferred upon
stockholders, directors or any other persons by and pursuant to this Certificate
of Incorporation in its present form or as hereafter amended are granted subject
to this reserved power.
IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation to be duly executed this 6th day of June, 2002.
NN, INC.
By: /s/ William C. Kelly, Jr.
-----------------------------
Name: William C. Kelly, Jr.
Title: Treasurer, Secretary and
Chief Accounting Officer
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