Document/Exhibit Description Pages Size
1: 10-K Annual Report 21 121K
2: EX-3 Ex-3(A) Articles of Incorporation 12± 48K
3: EX-3 Ex-3(B) Bylaws 24± 58K
4: EX-10 Ex-10.E Incentive Plan 6± 20K
5: EX-10 Ex-10.K Bonus Plan 5± 23K
6: EX-10 Ex-10.M Directors Plan 6± 26K
7: EX-11 Statement re: Computation of Earnings Per Share 2± 9K
8: EX-13 Annual or Quarterly Report to Security Holders 32± 131K
9: EX-22 EX-22 Subsidiaries 1 5K
10: EX-23 EX-23 Consent of Auditors 1 7K
EXHIBIT 3.b
BYLAWS
OF
FINGERHUT COMPANIES, INC.
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office
of the Corporation shall be in the City of Minnetonka, County of
Hennepin, State of Minnesota.
Section 2. Other Offices. The Corporation may also
have offices at such other places both within and without the
State of Minnesota as the Board of Directors may from time to time
determine.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meetings. Meetings of the
shareholders for the election of directors or for any other
purpose shall be held at such time and place, either within or
without the State of Minnesota, as shall be designated from time
to time by the Board of Directors and stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of
Shareholders shall be held on such date and at such time as shall
be designated from time to time by the Board of Directors and
stated in the notice of the meeting, at which meetings the
shareholders shall elect by a plurality vote a Board of Directors
and transact such other business as may properly be brought before
the meeting. Written notice of the Annual Meeting, stating the
place, date and hour of the meeting, shall be given to each
shareholder entitled to vote at such meeting not less than ten nor
more than sixty days before the date of the meeting.
Section 3. Special Meetings. Unless otherwise
prescribed by law or by the Amended and Restated Articles of
Incorporation, Special Meetings of Shareholders, for any purpose
or purposes, may be called by either (i) the Chairman of the
Board, if there be one, (ii) the Chief Executive Officer, or (iii)
the Secretary, if there be one, and shall be called by any such
officer at the request in writing of a majority of the Board of
Directors or at the request in writing of shareholders owning a
majority of the capital stock of the Corporation issued and
outstanding and entitled to vote at such meeting. Such request
shall state the purpose or purposes of the proposed meeting.
Written notice of a Special Meeting, stating the place, date and
hour of the meeting and the purpose or purposes for which the
meeting is called, shall be given not less than ten nor more than
sixty days before the date of the meeting to each shareholder
entitled to vote at such meeting.
Section 4. Quorum. Except as otherwise provided by
law or by the Amended and Restated Articles of Incorporation, the
holders of a majority of the capital stock issued and outstanding
and entitled to vote at any meeting of shareholders, present in
person or represented by proxy, shall constitute a quorum at all
meetings of the shareholders for the transaction of business
thereat. If however, such quorum shall not be present or
represented at any meeting of the shareholders, the shareholders
entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a
quorum shall be present or represented. At such adjourned meeting
at which a quorum shall be present or represented, any business
may be transacted that might have been transacted at the meeting
as originally noticed. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be
given to each shareholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law,
the Amended and Restated Articles of Incorporation or these
Bylaws, any question properly brought before any meeting of
shareholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat.
Each shareholder represented at a meeting of shareholders shall be
entitled to cast one vote for each share of the capital stock
entitled to vote thereat held by such shareholder. Such votes may
be cast in person or by proxy, but no proxy shall be voted on or
after eleven months from its date, unless such proxy provides for
a longer period.
Section 6. Consent of Shareholders in Lieu of Meeting.
Unless otherwise provided in the Amended and Restated Articles of
Incorporation, any action required or permitted to be taken at any
Annual or Special Meeting of Shareholders of the Corporation, may
be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken,
shall be signed by all the holders of outstanding stock entitled
to vote on such action.
Section 7. Share Register. The Corporation shall keep
at its principal executive office, at the offices of the person or
entity designated from time to time as the transfer agent of the
Corporation for purposes of maintaining a record of transfers of
capital stock of the Corporation, or at another place or places
within the United States determined by the Board of Directors, a
share register not more than one year old, containing the names
and addresses of the shareholders and the number and classes of
shares held by each shareholder and a record of the dates on which
certificates or transaction statements representing shares were
issued.
Section 8. Stock Ledger. The stock ledger of the
Corporation shall be the only evidence as to who are the
shareholders entitled to examine the stock ledger, the list
required by Section 7 of this Article II or the books of the
Corporation, or to vote in person or by proxy at any meeting of
shareholders.
Section 9. Notice of Shareholder Business. At any
Annual Meeting, only such business shall be conducted as shall
have been brought before the Annual Meeting by or at the direction
of the Board of Directors or by any shareholder who complies with
the procedures set forth in this Section 9.
Except as otherwise provided by the Amended and Restated
Articles of Incorporation or by law, the only business that shall
be conducted at any Annual Meeting of the Shareholders shall (i)
have been specified in the written notice of the meeting (or any
supplement thereto) given as provided in Article II, Section 2, of
these Bylaws, (ii) be brought before the meeting at the direction
of the Board of Directors or the presiding officer of the meeting
or (iii) be otherwise properly brought before the meeting by a
shareholder. In addition to any other applicable requirements,
including (without limitation) requirements imposed by federal
securities laws pertaining to proxies, for business to be properly
brought before an Annual Meeting by a shareholder, the business
must have been specified in a written notice (a "Shareholder
Meeting Notice") given to the Corporation, in accordance with all
of the following requirements, by or on behalf of any shareholder
who shall have been a shareholder of record on the record date for
such meeting and who shall continue to be entitled to vote
thereat. Each Shareholder Meeting Notice must be delivered
personally, or be mailed by first-class United States mail,
postage prepaid, to and received by, the Secretary of the
Corporation, at the principal executive offices of the
Corporation, not less than 50 days nor more than 75 days prior to
the Annual Meeting; provided, however, that in the event that less
than 65 days' notice or prior public disclosure of the date of the
Annual Meeting is given or made to shareholders, notice by the
shareholder to be timely must be received not later than the close
of business on the tenth day following the day on which such
notice of the date of the Annual Meeting was mailed or such public
disclosure was made. Each Shareholder Meeting Notice shall set
forth: (i) a description of each item of business proposed to be
brought before the meeting; (ii) the name and address of the
shareholder proposing to bring such item of business before the
meeting; (iii) the class and number of shares of stock held of
record, owned beneficially and represented by proxy by such
shareholder as of the record date for the meeting (if such date
shall then have been made publicly available) and as of the date
of such Shareholder Meeting Notice; and (iv) all other information
that would be required to be included in a proxy statement filed
with the Securities and Exchange Commission if, with respect to
any such item of business, such shareholder were a participant in
a solicitation subject to Section 14 of the Securities Exchange
Act of 1934, as amended. No business shall be brought before any
meeting of shareholders of the Corporation otherwise than as
provided in this paragraph or in Article II, Section 10, of these
Bylaws.
Nothing in this Section 9 shall be deemed to preclude
discussion by any shareholder of any business properly brought
before the Annual Meeting.
The presiding officer of an Annual Meeting shall, if
the facts warrant, determine and declare to the meeting that
business was not properly brought before the meeting in accordance
with the foregoing procedures, and if he should so determine, he
shall so declare to the meeting, and any such business not
properly brought before the meeting, shall not be transacted.
Section 10. Written Ballots. Voting at meetings of
shareholders need not be by written ballot, except with respect to
the election of directors, and need not be conducted by inspectors
of election, unless other-wise required by law or unless the
presiding officer of the meeting shall so determine or
shareholders represented in person or by proxy at the meeting
holding at least ten percent (10%) of the shares entitled to vote
at the meeting so demand. Each vote taken by written ballot shall
contain the name of the shareholder or proxy voting, the number of
shares represented and such other information as may be required
under procedures established for the meeting by the presiding
officer, and shall be counted by an inspector or inspectors
appointed by the presiding officer.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The
Board of Directors shall consist of the number of directors set in
accordance with the Amended and Restated Articles of
Incorporation. Any director may resign at any time by giving
written notice to the Chairman of the Board, if there be one, the
Chief Executive Officer or the Secretary. Directors need not be
shareholders.
Section 2. Duties and Powers. The business of the
Corporation shall be managed by or under the direction of the
Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by
statute, by the Amended and Restated Articles of Incorporation or
by these Bylaws directed or required to be exercised or done by
the shareholders.
Section 3. Meetings. The Board of Directors of the
Corporation may hold meetings, both regular and special, either
within or without the State of Minnesota. Regular meetings of the
Board of Directors may be held without notice at such time and at
such place as may from time to time be determined by the Board of
Directors. Special meetings of the Board of Directors may be
called by the Secretary when and as he shall be so requested to do
in writing by the Chairman of the Board, if there be one, the
Chief Executive Officer or any three directors. Notice thereof,
stating the place, date and hour of the meeting, shall be given to
each director either by mail not less than forty-eight (48) hours
before the date of the meeting, by telephone or telegram on twenty-
four (24) hours' notice, or on such shorter notice as the person
or persons calling such meeting may deem necessary or appropriate
in the circumstances.
Section 4. Quorum. Except as may be otherwise
specifically provided by law, the Amended and Restated Articles of
Incorporation or these Bylaws, at all meetings of the Board of
Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business and the act of
a majority of the directors present at any meeting at which there
is a quorum shall be the act of the Board of Directors, except
that an act of the Board of Directors shall not in any event be
taken by the affirmative vote of less than one-third of the total
number of directors constituting the entire Board of Directors.
If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 5. Actions of Board Without Meeting. Unless
otherwise provided by the Amended and Restated Articles of
Incorporation or these Bylaws, any action required or permitted to
be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all the
members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board of Directors or
committee.
Section 6. Meetings by Means of Conference Telephone.
Unless otherwise provided by the Amended and Restated Articles of
Incorporation or these Bylaws, members of the Board of Directors
of the Corporation, or any committee designated by the Board of
Directors, may participate in a meeting of the Board of Directors
or such committee by means of a conference telephone or similar
communications equipment, by means of which all persons
participating in the meeting can hear each other, and
participation in a meeting pursuant to this Section 6 shall
constitute presence in person at such meeting.
Section 7. Committees. The Board of Directors may, by
resolution passed by a majority of the entire Board of Directors,
designate one or more committees, each committee to consist of one
or more of the directors of the Corporation. The Board of
Directors may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified
member at any meeting of any such committee. In the absence or
disqualification of a member of a committee, and in the absence of
a designation by the Board of Directors of an alternate member to
replace the absent or disqualified member, 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 of Directors to act at the
meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided for in the
resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation.
Each committee shall keep regular minutes and report to the Board
of Directors when required.
Section 8. Compensation. The directors may be paid
their expenses, if any, of attendance at each meeting of the Board
of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or a stated salary as director.
No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be
allowed like compensation for attending committee meetings.
Section 9. Interested Directors. No contract or
transaction between the Corporation and one or more of its
directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in
which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer
is present at or participates in the meeting of the Board of
Directors or committee thereof that authorizes the contract or
transaction, or solely because his or their votes are counted for
such purpose, if (i) the material facts as to his or their
relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee,
and the Board of Directors or committee in good faith authorizes
the contract or transaction by the affirmative votes of a majority
of the Board of Directors on the committee, but the interested
directors as directors shall not be counted in determining the
presence of a quorum and shall not vote; or (ii) the material
facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the
shareholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by (a) the
holders of two-thirds of the voting power of the shares entitled
to vote that are owned by persons other than the interested
director or directors, or (b) the unanimous affirmative vote of
the holders of all outstanding shares, whether or not entitled to
vote; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified
by the Board of Directors, a committee thereof or the
shareholders.
Section 10. Nomination of Director. Except as
otherwise fixed pursuant to Article IV of the Amended and Restated
Articles of Incorporation of the Corporation relating to the
rights of the holders of any one or more classes or series of
Preferred Stock issued by the Corporation, acting separately by
class or series, to elect, under specified circumstances,
directors at a meeting of shareholders, nominations for election
to the Board of Directors at a meeting of shareholders may be made
by the Board of Directors or by any shareholder of the Corporation
entitled to vote for election of directors at such meeting. Such
nominations, other than those made by the Board of Directors,
shall be made by notice in writing delivered personally, or mailed
by first-class United States mail, postage prepaid, to and
received by the Secretary of the Corporation, at the principal
executive offices of the Corporation, not less than 50 days nor
more then 75 days prior to any meeting of shareholders called for
the election of directors; provided, however, that if less than 65
days' notice or prior public disclosure of the date of the meeting
is given or made to shareholders, such nomination shall have been
mailed or delivered to the Secretary of the Corporation not later
than the close of business on the tenth day following the day on
which the notice of meeting was mailed or such public disclosure
was made. Such notice shall set forth: (i) the name and address
of the shareholder who intends to make the nomination and of the
person or persons to be nominated; (ii) the class and number of
shares of stock held of record, owned beneficially and represented
by proxy by such shareholder as of the record date for the meeting
(if such date shall then have been made publicly available) and as
of the date of such notice; (iii) a representation that the
shareholder is a holder of record of stock of the Corporation
entitled to vote at such meeting and that the shareholder intends
to appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice; (iv) a description of
all arrangements or understandings between such shareholder and
each nominee and any other person or persons (naming such person
or persons) which the nomination or nominations are to be made by
such shareholder; (v) such other information regarding each
nominee proposed by such shareholder as would be required to be
disclosed in solicitations for proxies for election of directors
pursuant to the proxy rules of the Securities and Exchange
Commission; and (vi) the written consent of such person to serve
as a director of the Corporation if so elected. The presiding
officer of the meeting may refuse to acknowledge the nomination of
any person not made in compliance with the foregoing procedure.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation
shall be chosen by the Board of Directors and shall be a Chief
Executive Officer and Chief Financial Officer, however designated.
The Board of Directors, in its discretion, may also choose a
Chairman of the Board (who must be a director), Secretary,
Treasurer and one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices
may be held by the same person, unless otherwise prohibited by
law, the Certificate of Incorporation or these Bylaws. The
officers of the Corporation need not be shareholders of the
Corporation, nor, except in the case of the Chairman of the Board
of Directors, need such officers be directors of the Corporation.
Section 2. Election. The Board of Directors, at its
first meeting held after each Annual Meeting, shall elect the
officers of the Corporation who shall hold their offices for such
terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors;
and all officers of the Corporation shall hold office until their
successors are chosen and qualified, or until their earlier
resignation or removal. Any officer elected by the Board of
Directors may be removed at any time by the affirmative vote of a
majority of the Board of Directors. Any vacancy occurring in any
office of the Corporation shall be filled by the Board of
Directors. The salaries of all officers of the Corporation shall
be fixed by the Board of Directors.
Section 3. Voting Securities owned by the Corporation.
Powers of attorney, proxies, waivers of notice of meeting,
consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the
Corporation by the Chief Executive Officer or any Vice President,
and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem
advisable to vote in person or by proxy at any meeting of security
holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise
any and all rights and powers incident to the ownership of such
securities and which, as the owner thereof, the Corporation might
have exercised and possessed if present. The Board of Directors
may, by resolution, from time to time confer like powers upon any
other person or persons.
Section 4. Chairman of the Board. The Chairman of the
Board, if there be one, shall preside at all meetings of the
shareholders and of the Board of Directors. Except where by law
the signature of the Chief Executive Officer is required, the
Chairman of the Board of Directors shall possess the same power as
the Chief Executive Officer to sign all contracts, certificates
and other instruments of the Corporation that may be authorized by
the Board of Directors. During the absence or disability of the
Chief Executive Officer, the Chairman of the Board shall exercise
all the powers and discharge all the duties of the Chief Executive
Officer. The Chairman of the Board of Directors shall also
perform such other duties and may exercise such other powers as
from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. Chief Executive Officer. The Chief Executive
Officer shall, subject to the control of the Board of Directors
and, if there be one, the Chairman of the Board, have general
supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried
into effect. He shall execute all bonds, mortgages, contracts and
other instruments of the Corporation requiring a seal, under the
seal of the Corporation, except where required or permitted by law
to be otherwise signed and executed and except that the other
officers of the Corporation may sign and execute documents when so
authorized by these Bylaws, the Board of Directors or the Chairman
of the Board. In the absence or disability of the Chairman of the
Board, or if there be none, the Chief Executive Officer shall
preside at all meetings of the shareholders and the Board of
Directors. The Chief Executive Officer shall also perform such
other duties and may exercise such other powers as from time to
time may be assigned to him by these Bylaws or by the Board of
Directors.
Section 6. Vice Presidents. At the request of the
Chief Executive Officer or in his absence or in the event of his
inability or refusal to act (and if there be no Chairman of the
Board), the Vice President or the Vice Presidents (if there is
more than one in the order designated by the Board of Directors),
shall perform the duties of the Chief Executive Officer, and when
so acting, shall have all the powers of and be subject to all the
restrictions upon the Chief Executive Officer. Each Vice
President shall perform such other duties and have such other
powers as the Board of Directors from time to time may prescribe.
If there be no Chairman of the Board and no Vice President, the
Board of Directors shall designate the officer of the Corporation
who, in the absence of the Chief Executive Officer or in the event
of the inability or refusal of the Chief Executive Officer to act,
shall perform the duties of the Chief Executive Officer, and when
so acting, shall have all the powers of and be subject to all the
restrictions upon the Chief Executive Officer.
Section 7. Secretary. The Secretary shall attend all
meetings of the Board of Directors and all meetings of
shareholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also
perform like duties for the standing committees when required.
The Secretary shall give, or cause to be given, notice of all
meetings of the shareholders and Special Meetings of the Board of
Directors and shall perform such other duties as may be prescribed
by the Board of Directors or Chief Executive Officer, under whose
supervision he shall be. If the Secretary shall be unable or
shall refuse to cause to be given notice of all meetings of the
shareholders and Special Meetings of the Board of Directors, and
if there be no Assistant Secretary, then either the Board of
Directors or the Chief Executive Officer may choose another
officer to cause such notice to be given. The Secretary shall
have custody of the seal of the Corporation and the Secretary or
any Assistant Secretary, if there be one, shall have authority to
affix the same to any instrument requiring it, and when so
affixed, it may be attested by the signature of the Secretary or
by the signature of any such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix
the seal of the Corporation and to attest the affixing by his
signature. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required
by law to be kept or filed are properly kept or filed, as the case
may be.
Section 8. Treasurer. The Treasurer shall have the
custody of the corporate funds and securities and shall keep full
and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and
other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, taking
proper vouchers for such disbursements, and shall render to the
Chief Executive Officer and the Board of Directors, at its regular
meetings, or when the Board of Directors so requires, an account
of all his transactions as Treasurer and of the financial
condition of the Corporation. If required by the Board of
Directors, the Treasurer shall give the Corporation a bond in such
sum and with such surety or sureties as shall be satisfactory to
the Board of Directors for the faithful performance of the duties
of his office and for the restoration to the Corporation, in case
of his death, resignation, retirement or removal from office, of
all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the
Corporation.
Section 9. Assistant Secretaries. Except as may be
otherwise provided in these Bylaws, Assistant Secretaries, if
there be any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of
Directors, the Chief Executive Officer, any Vice President, if
there be one, or the Secretary, and in the absence of the
Secretary or in the event of his disability or refusal to act,
shall perform the duties of the Secretary, and when so acting,
shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant
Treasurers, if there be any, shall perform such duties and have
such powers as from time to time may be assigned to them by the
Board of Directors, the Chief Executive Officer, any Vice
President, if there be one, or the Treasurer, and in the absence
of the Treasurer or in the event of his disability or refusal to
act, shall perform the duties of the Treasurer, and when so
acting, shall have all the powers of and be subject to all the
restrictions upon the Treasurer. If required by the Board of
Directors, an Assistant Treasurer shall give the Corporation a
bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to
the Corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his
control belonging to the Corporation.
Section 11. Other Officers. Such other officers as
the Board of Directors may choose shall perform such duties and
have such powers as from time to time may be assigned to them by
the Board of Directors. The Board of Directors may delegate to
any other officer of the Corporation the power to choose such
other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of
stock in the Corporation shall be entitled to have a certificate
signed in the name of the Corporation by (i) the Chairman of the
Board, the Chief Executive Officer or a Vice President and (ii)
the Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary of the Corporation, certifying the number of
shares owned by him in the Corporation.
Section 2. Signatures. Where a certificate is
countersigned by (i) a transfer agent other than the Corporation
or its employee or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who
has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors
may direct a new certificate to be issued in place of any
certificate theretofore issued by the Corporation alleged to have
been lost, stolen or destroyed, upon the making of an affidavit of
that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new
cer-tificate, the Board of Directors may, in its discretion and as
a condition precedent to the issuance thereof, require the owner
of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board
of Directors shall require and/or to give the Corporation a bond
in such sum as it may direct as indemnity against any claim that
may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall
be transferable in the manner prescribed by law and in these
Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his
attorney lawfully constituted in writing and upon the surrender of
the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation
may determine the shareholders entitled to notice of or to vote at
any meeting of shareholders or any adjournment thereof, or
entitled to express consent to corporate action in writing without
a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or 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 of
Directors may fix, in advance, a record date, which shall not be
more than sixty (60) days nor less than ten days before the date
of such meeting, nor more than sixty (60) days prior to any other
action. A determination of shareholders of record entitled to
notice of or to vote at a meeting of shareholders shall apply to
any adjournment of the meeting; provided, however, that the Board
of Directors may fix a new record date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall
be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive
dividends and to vote as such owner, and to hold liable for calls
and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any
other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is
required by law the Amended and Restated Articles of Incorporation
or these Bylaws, to be given to any director, member of a
committee or shareholder, such notice may be given by mail,
addressed to such director, member of a committee or shareholder,
at his address as it appears on the records of the Corporation,
with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the
United States mail. Written notice may also be given personally
or by telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is
required by law, the Amended and Restated Articles of
Incorporation or these Bylaws, to be given to any director, member
of a committee or shareholder, a waiver thereof in writing,
signed, by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital
stock of the Corporation, subject to the provisions of the Amended
and Restated Articles of Incorporation, if any, may be declared by
the Board of Directors at any regular or Special Meeting, and may
be paid in cash, in property, or in shares of the capital stock.
Before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends such sum or sums
as the Board of Directors from time to time, in its absolute
discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for any proper
purpose, and the Board of Directors may modify or abolish any such
reserve.
Section 2. Disbursements. All checks or demands for
money and notes of the Corporation shall be signed by such officer
or officers or such other person or persons as the Board of
Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the
Corporation shall be a 52 or 53-week year ending on the last
Friday of each calendar year or as may be determined by resolution
of the Board of Directors.
Section 4. Corporate Seal. If so directed by the
Board of Directors, the Corporation may use a corporate seal. The
failure to use such seal, however, shall not affect the validity
of any documents executed on behalf of the Corporation. The seal
need only include the word "seal", but it may also include, at the
discretion of the Board of Directors, such additional wording as
is permitted by law.
ARTICLE VIII
INDEMNIFICATION
Section 1. Indemnification of Directors and Officers.
The Corporation shall indemnify, to the fullest extent permissible
under the Minnesota Business Corporation Act, any person, and the
heirs and personal representatives of such person, against any and
all judgments, fines, amounts paid in settlement and costs and
expenses, including attorneys' fees, actually and reasonably
incurred by or imposed upon such person in connection with, or
resulting from any claim, action, suit or proceeding (civil,
criminal, administrative or investigative) in which such person is
a party or is threatened to be made a party by reason of such
person being or having been a director or officer of the
Corporation, or of another corporation, joint venture, trust or
other organization in which such person serves as a director or
officer at the request of the Corporation or by reason of such
person being or having been an administrator or a member of any
board or committee of this Corporation, or of any such other
organization.
Section 2. Indemnification of Employees and Agents.
The Corporation may, to the extent authorized from time to time by
the Board of Directors, provide rights to indemnification and to
the advancement of ex-penses to employees and agents of the
Corporation similar to those conferred in this Article VIII to
directors and officers.
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