Annual Report — Form 10-K
Filing Table of Contents
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
EX-3 — Ex-3(A) Articles of Incorporation
EXHIBIT 3.a
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
FINGERHUT COMPANIES, INC.
ARTICLE I
The name of the Corporation is Fingerhut Companies, Inc.
ARTICLE II
The address of the registered office of the Corporation
in the State of Minnesota is 4400 Baker Road, Minnetonka,
Minnesota 55343.
ARTICLE III
The purpose of the Corporation is to engage in any
lawful act or activity for which a corporation may now or
hereafter be organized under the Minnesota Business Corporation
Act.
ARTICLE IV
A. The total number of shares of stock that the
Corporation shall have authority to issue is 105,000,000 shares,
consisting of 100,000,000 shares of common stock, par value $.01
per share (the "Common Stock"), and 5,000,000 shares of preferred
stock, par value $.01 per share (the "Preferred Stock").
B. Shares of the Preferred Stock may be issued from
time to time in one or more classes or series, each of which class
or series shall have such distinctive designation or title as
shall be fixed by the Board of Directors of the Corporation (the
"Board of Directors") prior to the issuance of any shares thereof.
Each such class or series of Preferred Stock shall have such
voting powers, full or limited, or no voting powers, and such
preferences and relative, participating, optional, conversion, or
other special rights and such qualifications, limitations or
restrictions thereof, as shall be stated in the resolution or
resolutions providing for the issue of such class or series of
Preferred Stock as may be adopted from time to time by the Board
of Directors prior to the issuance of any shares thereof pursuant
to the authority hereby expressly vested in it, all in accordance
with the laws of the State of Minnesota. The Board of Directors
is further authorized to increase or decrease the authorized
number of shares of any series (but not below the number of shares
of that series issued) subsequent to the issuance of shares of
that series.
C. Subject to the provisions of any applicable law or
except as otherwise provided by the resolution or resolutions
providing for the issue of any series of Preferred Stock, the
holders of outstanding shares of Common Stock shall exclusively
possess voting power for the election of directors and for all
other purposes, each holder of record of shares of Common Stock
being entitled to one vote for each share of Common Stock standing
in his name on the books of the Corporation.
D. Except as provided by the resolution or resolutions
providing for the issue of any series of Preferred Stock, there
shall be no cumulative voting by the holders of the Common Stock
or by the holders of any class or series of Preferred Stock.
E. Except as provided by the resolution or resolutions
providing for the issue of any series of Preferred Stock, the
shareholders shall have no preemptive right to subscribe for or
otherwise acquire any new or additional shares of stock of the
Corporation of any class whether now authorized or authorized
hereafter, or any options or warrants to purchase, to subscribe
for or otherwise acquire any such new or additional shares of any
class, or any shares, bonds, notes, debentures, or other
securities convertible into or carrying options or warrants to
purchase, to subscribe for or otherwise acquire any such new or
additional shares of any class.
F. The Board of Directors shall have the sole power to
issue shares of Common Stock or any class or series of Preferred
Stock.
ARTICLE V
The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors
consisting of not less than three directors nor more than eleven
directors, the exact number of directors to be determined from
time to time by resolution adopted by a majority of the entire
Board of Directors then in office. The directors shall be divided
into three classes, designated Class I, Class II and Class III.
Each class shall consist, as nearly as may be possible, of one
third of the total number of directors constituting the entire
Board of Directors. The term of the initial Class I directors
shall terminate on the date of the 1991 annual meeting of
shareholders; the term of the initial Class II directors shall
terminate on the date of the 1992 annual meeting of shareholders
and the term of the initial Class III directors shall terminate on
the date of the 1993 annual meeting of shareholders. At each
annual meeting of shareholders beginning in 1991, successors to
the class of directors whose term expires at that annual meeting
shall be elected for a three-year term. If the number of
directors is changed, any increase or decrease shall be
apportioned among the classes so as to maintain the number of
directors in each class as nearly equal as possible, and any
additional directors of any class elected to fill a vacancy
resulting from an increase in such class shall hold office for a
term that shall coincide with the remaining term of that class,
but in no case will a decrease in the number of directors shorten
the term of any incumbent director. A director shall hold office
until the annual meeting for the year in which his term expires
and until his successor shall be elected and shall qualify,
subject, however, to prior death, resignation, retirement,
disqualification or removal from office. Any vacancy on the Board
of Directors that results from an increase in the number of
directors shall be filled by a majority of the entire Board of
directors then in office, and any vacancy occurring for any other
reason may be filled by a majority of the directors then in
office, even if less than a quorum, or by a sole remaining
director. Any director elected to fill a vacancy shall hold
office for a term that shall coincide with the term of the class
to which such director shall have been elected.
Notwithstanding the foregoing, whenever the holders of
any one or more classes or series of Preferred Stock issued by the
Corporation shall have the right, voting separately by class or
series, to elect directors at an annual or special meeting of
shareholders, the elections, terms of office, filling of vacancies
and other features of such directorships shall be governed by the
terms of these Amended and Restated Articles of Incorporation or
the resolution or resolutions providing for the issue of any such
class or series, and such directors so elected shall not be
divided into classes pursuant to this Article V unless expressly
provided by such terms.
ARTICLE VI
Subject to the rights, if any, of the holders of shares
of a class or series of Preferred Stock then outstanding, any or
all of the directors of the Corporation may be removed from office
at any time, but only for cause and only by the affirmative vote
of the holders of a majority of the outstanding shares of the
Corporation entitled to vote generally in the election of
directors, all of such shares being considered for purposes of
this Article VI as a single class.
ARTICLE VII
A. In addition to any affirmative vote required by
law or these Amended and Restated Articles of Incorporation or the
Bylaws of the Corporation, and except as otherwise expressly
provided in Section B of this Article VII, a Business Combination
(as hereinafter defined) with, or proposed by or on behalf of, any
Interested Shareholder (as hereinafter defined), or any Affiliate
or Associate (as hereinafter defined) of any Interested
Shareholder or any person who thereafter would be an Affiliate or
Associate of such Interested Shareholder shall require the
affirmative vote of not less than sixty-six and two-thirds percent
(66-2/3%) of the votes entitled to be cast by the holders of all
the then outstanding shares of Voting Stock (as hereinafter
defined) voting together as a single class, excluding Voting Stock
beneficially owned by such Interested Shareholder. Such
affirmative vote shall be required notwithstanding the fact that
no vote may be required, or that a lesser percentage or separate
class vote may be specified, by law or in any agreement with any
national securities exchange or otherwise.
B. The provisions of Section A of this Article VII
shall not be applicable to any particular Business Combination,
and such Business Combination shall require only such affirmative
vote, if any, as is required by law or by any other provision of
these Amended and Restated Articles of Incorporation or the Bylaws
of the Corporation, or any agreement with any national securities
exchange, if all of the conditions specified in either of the
following Paragraphs 1 or 2 are met or, in the case of a Business
Combination not involving the payment of consideration to the
holders of the Corporation's outstanding Capital Stock (as
hereinafter defined), if the condition specified in the following
Paragraph 1 is met:
1. The Business Combination shall have been approved,
either specifically or as a transaction which is within an
approved category of transactions, by a majority (whether or not
such approval is made prior to or subsequent to the acquisition
of, or announcement or public disclosure of the intention to
acquire, beneficial ownership of the Voting Stock that caused the
Interested Shareholder to become an Interested Shareholder) of the
Continuing Directors (as hereinafter defined).
2. All of the following conditions shall have been
met:
(a) The aggregate amount of cash and the Fair
Market Value, as of the date of the consummation of the Business
Combination, of consideration other than cash to be received per
share by holders of shares of any class or series of outstanding
Capital Stock shall be at least equal to the highest amount
determined under clauses (i), (ii), (iii) and (iv) below:
(i) (if applicable) the highest per share
price (including any brokerage commissions, transfer taxes
and soliciting dealers' fees) paid by or on behalf of the
Interested Shareholder for any share of such class or series
of Capital Stock in connection with the acquisition by the
Interested Shareholder of beneficial ownership of shares of
such class or series of Capital Stock (x) within the two-year
period immediately prior to the first public announcement of
the proposed Business Combination (the "Announcement Date")
or (y) in the transaction in which it became an Interested
Shareholder, whichever is higher, in either case as adjusted
for any subsequent stock split, stock dividend, subdivision
or reclassification with respect to such class or series of
Capital Stock;
(ii) the Fair Market Value per share of
such class or series of Capital Stock on the Announcement
Date or on the date on which the Interested Shareholder
became an Interested Shareholder (the "Determination Date"),
whichever is higher, as adjusted for any subsequent stock
split, stock dividend, subdivision or reclassification with
respect to such class or series of Capital Stock;
(iii) (if applicable) the highest
preferential amount per share to which the holders of shares
of such class or series of Capital Stock would be entitled in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation
regardless of whether the Business Combination to be
consummated constitutes such an event; and
(iv) an amount which bears the same or
greater percentage to the Fair Market Value of such class of
Voting Stock on the Announcement Date as the highest per
share price in 2(a)(i) above bears to the Fair Market Value
of such class of Voting Stock on the date of the commencement
of the acquisition of such Voting Stock by such Interested
Shareholder.
The provisions of this Paragraph 2 shall be required to
be met with respect to every class or series of outstanding
Capital Stock, whether or not the Interested Shareholder has
previously acquired beneficial ownership of any shares of a
particular class or series of Capital Stock.
(b) The consideration to be received by holders
of a particular class or series of outstanding Capital Stock shall
be in cash or in the same form as previously has been paid by or
on behalf of the Interested Shareholder in connection with its
direct or indirect acquisition of beneficial ownership of shares
of such class or series of Capital Stock. If the consideration so
paid for shares of any class or series of Capital Stock varied as
to form, the form of consideration for such class or series of
Capital Stock shall be either cash or the form used to acquire
beneficial ownership of the largest number of shares of such class
or series of Capital Stock previously acquired by the Interested
Shareholder.
(c) After the Determination Date and prior to the
consummation of such Business Combination: (i) except as approved
by a majority of the Continuing Directors, there shall have been
no failure to declare and pay at the regular date therefor any
full quarterly dividends (whether or not cumulative) payable in
accordance with the terms of any outstanding Capital Stock; (ii)
there shall have been no reduction in the annual rate of dividends
paid on the Common Stock (except as necessary to reflect any stock
split, stock dividend or subdivision of the Common Stock), except
as approved by a majority of the Continuing Directors; (iii) there
shall have been an increase in the annual rate of dividends paid
on the Common Stock as necessary to reflect any reclassification
(including any reverse stock split), recapitalization,
reorganization or any similar transaction that has the effect of
reducing the number of outstanding shares of Common Stock, unless
the failure so to increase such annual rate is approved by a
majority of the Continuing Directors; and (iv) such Interested
Shareholder shall not have become the beneficial owner of any
additional shares of Capital Stock except as part of the
transaction that results in such Interested Shareholder becoming
an Interested Shareholder and except in a transaction that, after
giving effect thereto, would not result in any increase in the
Interested Shareholder's percentage beneficial ownership of any
class or series of Capital Stock.
(d) A proxy or information statement describing
the proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder (the "Exchange Act") (or
any subsequent provisions replacing such Exchange Act, rules or
regulations) shall be mailed to all shareholders of the
Corporation at least 30 days prior to the consummation of such
Business Combination (whether or not such proxy or information
statement is required to be mailed pursuant to the Exchange Act or
subsequent provisions). The proxy or information statement shall
contain on the first page thereof, in a prominent place, any
statement as to the advisability (or inadvisability) of the
Business Combination that the Continuing Directors, or any of
them, may choose to make and, if deemed advisable by a majority of
the Continuing Directors, the opinion of an investment banking
firm selected by the majority of the Continuing Directors as to
the fairness (or unfairness) of the terms of the Business
Combination from a financial point of view to the holders of the
outstanding shares of Capital Stock other than the Interested
Shareholder and its Affiliates or Associates, such investment
banking firm to be paid a reasonable fee for its services by the
Corporation.
(e) Such Interested Shareholder shall not have
made any material change in the Corporation's business or equity
capital structure without the approval of a majority of the
Continuing Directors.
C. The following definitions shall apply with respect
to this Article VII:
1. The term "Business Combination" shall mean:
(a) any merger or consolidation of the Corporation
or any Subsidiary (as hereinafter defined) with (i) any Interested
Shareholder or (ii) any other company (whether or not itself an
Interested Shareholder) which is or after such merger or
consolidation would be an Affiliate or Associate of an Interested
Shareholder; or
(b) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition of security arrangement, investment,
loan, advance, guarantee, arrangement to purchase, agreement to
pay, extension of credit, joint venture participation or other
arrangement (in one transaction or a series of transactions) with
or for the benefit of any Interested Shareholder or any Affiliate
or Associate of any Interested Shareholder involving any assets,
securities or commitments of the Corporation, any Subsidiary or
any Interested Shareholder or any Affiliate or Associate of any
Interested Shareholder which (except for any arrangement, whether
as employee, consultant or otherwise, other than as a director,
pursuant to which any Interested Shareholder or any Affiliate or
Associate thereof shall, directly or indirectly, have any control
over or responsibility for the management of any aspect of the
business or affairs of the Corporation, which arrangements are
included in this definition of Business Combination, without
regard to the value tests set forth below), together with all
other such arrangements (including all contemplated future
events), has an aggregate Fair Market Value and/or involves
aggregate commitments of $10,000,000 or more or constitutes more
than 5 percent of the book value of the total assets (in the case
of transactions involving assets or commitments other than capital
stock) or 5 percent of the shareholders' equity (in the case of
transactions in Capital Stock) of the entity in question (the
"Substantial Part"), as reflected in the most recent fiscal year-
end consolidated balance sheet of such entity existing at the time
the shareholders of the Corporation would be required to approve
or authorize the Business Combination involving the assets,
securities and/or commitments constituting any Substantial Part;
or
(c) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation or for any amendment
to the Corporation's Bylaws; or
(d) any reclassification of securities (including
any reverse stock split), or recapitalization of the Corporation,
or any merger or consolidation of the Corporation with any of its
Subsidiaries or any other transaction (whether or not with or
otherwise involving an Interested Shareholder) that has the
effect, directly or indirectly, of increasing the proportionate
share of any class or series of Capital Stock, or any securities
convertible into Capital Stock or into equity securities of any
Subsidiary, that is beneficially owned by any Interested
Shareholder or any Affiliate or Associate of any Interested
Shareholder; or
(e) any agreement, contract or other arrangement
providing for any one or more of the actions specified in the
foregoing clauses (a) through (d).
2. The term "Capital Stock" shall mean all capital
stock of the Corporation authorized to be issued from time to time
under Article IV of these Amended and Restated Articles of
Incorporation, and the term "Voting
Stock" shall mean all Capital Stock which by its terms may be
voted on all matters submitted to shareholders of the Corporation
generally.
3. The term "person" shall mean any individual, firm,
company or other entity and shall include any group comprised of
any person and any other person with whom such person or any
Affiliate or Associate of such person has any agreement,
arrangement or understanding, directly or indirectly, for the
purpose of acquiring, holding, voting or disposing of Capital
Stock.
4. The term "Interested Shareholder" shall mean any
shareholder other than the Corporation or any Subsidiary, any
shareholder (or any Affiliate of such shareholder to which such
shareholder's shares shall have been transferred) owning, at the
time of the filing of these Amended and Restated Articles of
Incorporation, ten percent (10%) or more of the Common Stock of
the Corporation then outstanding, and other than any profit-
sharing, pension, employee stock option or other employee benefit
plan of the Corporation or any Subsidiary or any trustee of or
fiduciary with respect to any such plan when acting in such
capacity, who after the effective date of these Amended and
Restated Articles of Incorporation acquires or announces or
publicly discloses a plan or intention to acquire the beneficial
ownership of Voting Stock representing ten percent (10%) or more
of the votes entitled to be cast by the holders of all then
outstanding shares of Voting Stock. The number (appropriately
adjusted to reflect any stock dividend, split-up, reorganization,
combination or reclassification of the outstanding shares of
Capital Stock of the Corporation including recapitalization as a
result of any merger or consolidation) of shares of Voting Stock
beneficially owned by a person on such effective date shall be
subtracted from such person's beneficial ownership of Voting Stock
for purposes of determining whether such person is an Interested
Shareholder.
5. A person shall be a "beneficial owner" of any
Capital Stock (a) which such person or any of its Affiliates or
Associates beneficially owns, directly or indirectly; (b) which
such person or any of its Affiliates or Associates has, directly
or indirectly, (i) the right to acquire (whether such right is
exercisable immediately or subject only to the passage of time),
pursuant to any agreement, arrangement or understanding or upon
the exercise of conversion rights, exchange rights, warrants or
options, or otherwise, or (ii) the right to vote pursuant to any
agreement, arrangement or understanding; or (c) which is
beneficially owned, directly or indirectly, by any other person
with which such person or any of its Affiliates or Associates has
any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of Capital
Stock. For the purposes of determining whether a person is an
Interested Shareholder pursuant to Paragraph 4 of this Section C,
the number of shares of Capital Stock deemed to be outstanding
shall include shares deemed beneficially owned by such person
through application of this Paragraph 5 of this Section C, but
shall not include any other shares of Capital Stock that may be
issuable pursuant to any agreement, arrangement or understanding,
or upon exercise of conversion rights, warrants or options, or
otherwise.
6. The terms "Affiliate" and "Associate" shall have
the respective meanings ascribed to such terms in Rule 12b-2 under
the Exchange Act as in effect on the date of filing these Amended
and Restated Articles of Incorporation (the term "registrant" in
said Rule 12b-2 meaning in this case the Corporation).
7. The term "Subsidiary" shall mean any company of
which a majority of any class of equity security is beneficially
owned by the Corporation; provided, however, that for purposes of
the definition of Interested Shareholder set forth in Paragraph 4
of this Section C, the term "Subsidiary" shall mean only a company
of which a majority of each class of equity security is
beneficially owned by the Corporation.
8. The term "Continuing Director" shall mean any
member of the Board of Directors, while such person is a member of
the Board of Directors, who is not an Affiliate or Associate or
representative of the Interested Shareholder and was a member of
the Board of Directors prior to the time that the Interested
Shareholder became an Interested Shareholder, and any successor of
a Continuing Director while such successor is a member of the
Board of Directors, who is not an Affiliate or Associate or
representative of the Interested Shareholder and is recommended or
elected to succeed the Continuing Director by a majority of the
Continuing Directors.
9. The term "Fair Market Value" shall mean (a) in the
case of cash, the amount of such cash; (b) in the case of stock,
the highest closing sale price during the 30-day period
immediately preceding the date in question of a share of such
stock on the Composite Tape for New York Stock Exchange- Listed
Stocks, or, if such stock is not quoted on the Composite Tape, on
the New York Stock Exchange, or, if such stock is not listed on
such Exchange, on the principal United States securities exchange
registered under the Exchange Act on which such stock is listed,
or, if such stock is not listed on any such exchange, the highest
closing bid quotation with respect to a share of such stock during
the 30-day period preceding the date in question on the National
Association of Securities Dealers, Inc. Automated Quotations
System or any similar system then in use, or if no such quotations
are available, the Fair Market Value on the date in question of a
share of such stock as determined by a majority of the Continuing
Directors in good faith, and (c) in the case of property other
than cash or stock, the Fair Market Value of such property on the
date in question as determined in good faith by a majority of the
Continuing Directors.
10. In the event of any Business Combination in which
the Corporation survives, the phrase "consideration other than
cash to be received" as used in Paragraph 2(a) of Section B of
this Article VII shall include the shares of Common Stock and/or
the shares of any other class or series of Capital Stock retained
by the holders of such shares.
D. A majority of the Continuing Directors shall have
the power and the duty to determine for the purposes of this
Article VII, on the basis of information known to them after
reasonable inquiry, all questions under this Article VII,
including, without limitation, (a) whether a person is an
Interested Shareholder (in which case such a person under
consideration by the Board of Directors shall be considered an
Interested Shareholder for the purposes of determining which
members of the Board of Directors are Continuing Directors
entitled to make such determination), (b) the number of shares of
Capital Stock or other securities beneficially owned by any
person, (c) whether a person is an Affiliate or Associate of
another, (d) whether a Proposed Action (as hereinafter defined) is
with, or proposed by, or on behalf of an Interested Shareholder or
an Affiliate or Associate of the Interested Shareholder, (e)
whether the assets that are the subject of any Business
Combination have, or the consideration to be received for the
issuance or transfer of securities by the Corporation or any
Subsidiary in any Business Combination has, an aggregate Fair
Market Value of $10,000,000 or more, and (f) whether the assets or
securities that are the subject of any Business Combination
constitute a Substantial Part. Any such determination made in
good faith shall be binding and conclusive on all parties.
E. Nothing in this Article VII shall be construed to
relieve any Interested Shareholder from any fiduciary obligation
imposed by law.
F. The fact that any Business Combination complies
with the provisions of Section B of this Article VII shall not be
construed to impose any fiduciary duty, obligation or
responsibility on the Board of Directors, or any member thereof,
to approve such Business Combination or recommend its adoption or
approval to the shareholders of the Corporation, nor shall such
compliance limit, prohibit or otherwise restrict in any manner the
Board of Directors, or any member thereof, with respect to
evaluations of or actions and responses taken with respect to such
Business Combination.
G. For the purposes of this Article VII, a Business
Combination or any proposal to amend, repeal or adopt any
provision of these Amended and Restated Articles of Incorporation
inconsistent with this Article VII (collectively, "Proposed
Action") is presumed to have been proposed by, or on behalf of, an
Interested Shareholder or an Affiliate or Associate of an
Interested Shareholder or a person who thereafter would become
such if (1) after the Interested Shareholder became such, the
Proposed Action is proposed following the election of any Director
of the Corporation who, with respect to such Interested
Shareholder, would not qualify to serve as a Continuing Director
or (2) such Interested Shareholder, Affiliate, Associate or person
votes for or consents to the adoption of any such Proposed Action,
unless as to such Interested Shareholder, Affiliate, Associate or
person, a majority of the Continuing Directors makes a good faith
determination that such Proposed Action is not proposed by or on
behalf of such Interested Shareholder, Affiliate, Associate or
person, based on information known to them after reasonable
inquiry.
H. For the purposes of this Article VII, any action,
approval or determination to be taken, extended or made by the
Continuing Directors or by a majority of the Continuing Directors
may be taken, extended or made regardless of whether the number of
the then existing Continuing Directors constitutes a quorum of the
entire Board of Directors.
I. Notwithstanding any other provision of these
Amended and Restated Articles of Incorporation or the Bylaws of
the Corporation (and notwithstanding the fact that a lesser
percentage or separate class vote may be specified by law, these
Amended and Restated Articles of Incorporation or the Bylaws of
the Corporation), the affirmative vote of the holders of record of
at least sixty-six and two-thirds percent (66-2/3%) of the votes
entitled to be cast by the holders of all of the then outstanding
shares of Voting Stock, voting together as a single class, shall
be required to approve any proposal to alter, amend or repeal this
Article VII or to adopt any provision inconsistent therewith;
provided, however, that if such proposal is by or on behalf of an
Interested Shareholder or an Affiliate or Associate of an
Interested Shareholder, approval of such proposal shall require
the affirmative vote of the holders of record of at least sixty-
six and two-thirds percent (66-2/3%) of the votes entitled to be
cast by the holders of all the then outstanding shares of Voting
Stock, voting together as a single class, excluding Voting Stock
beneficially owned by such Interested Shareholder; provided,
however, that this Section I shall not apply to, and such sixty-
six and two-thirds percent (66-2/3%) vote shall not be required
for, any alteration, amendment, repeal or adoption unanimously
recommended by the Board of Directors if all of such directors are
persons who would be eligible to serve as Continuing Directors
within the meaning of Section C, Paragraph 8 of this Article VII.
ARTICLE VIII
To the fullest extent permitted by the Minnesota
Business Corporation Act, as the same now exists or may hereafter
be amended, no director of the Corporation shall be personally
liable to the Corporation or its shareholders for monetary damages
for any breach of fiduciary duty by such a director as a director.
No amendment to or repeal of this Article VIII shall apply to or
have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or
omissions of such director occurring prior to such amendment or
repeal.
ARTICLE IX
The Corporation shall be subject to the provisions of
Section 302A.671 of the Minnesota Business Corporation Act, as the
same now exists or may hereafter be amended.
ARTICLE X
In furtherance and not in limitation of the powers
conferred upon it by the laws of the State of Minnesota, and
except as provided to the contrary by the Minnesota Business
Corporation Act or the Bylaws, the Board of Directors shall have
the power to adopt, amend, alter or repeal the Corporation's
Bylaws by the affirmative vote of the entire Board.
Notwithstanding any other provision of these Amended and Restated
Articles of Incorporation or the Corporation's Bylaws, the
affirmative vote of sixty-six and two-thirds percent (66-2/3%) of
the voting power of the shares entitled to vote generally at an
election of directors shall be required to amend, alter or repeal
Section 9 of Article II or Section 10 of Article III, of the
Bylaws of the Corporation.
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