Exhibit 2.1
PLAN OF MERGER
of
Northern Oil and Gas, Inc., a Nevada corporation
with and into
Northern Oil and Gas, Inc., a Minnesota corporation,
1.
The name and jurisdiction of organization of each constituent entity is: Northern Oil and Gas, Inc., a Nevada corporation (“
Northern Oil Nevada
”) and Northern Oil and Gas, Inc., a Minnesota corporation (“
Northern Oil Minnesota
”), or if such name has not been accepted by the relevant governmental, regulatory and self-regulatory authorities, such other similar name as may be allowed for Northern Oil Minnesota.
2.
The name, jurisdiction of organization and kind of entity that will survive the merger is: Northern Oil and Gas, Inc., or if such name is not accepted by the relevant governmental, regulatory and self-regulatory authorities, such other similar name as may be allowed; Minnesota; and a corporation.
3.
Terms and conditions of the merger: At a time (the “
Effective Time
”) to be determined by the Board of Directors of Northern Oil Nevada (the “
Board
”), Northern Oil Nevada will be merged with and into Northern Oil Minnesota (the “
Merger
”). In addition:
a.
At the Effective Time, the separate existence of Northern Oil Nevada will cease and Northern Oil Minnesota will possess all the rights, privileges, powers and franchises of a public and private nature and be subject to all the restrictions, disabilities and duties of each of Northern Oil Nevada and Northern Oil Minnesota.
b.
All rights, privileges, powers and franchises of each of Northern Oil Nevada and Northern Oil Minnesota and all property, real, personal, or mixed and all debts due to each of Northern Oil Nevada and Northern Oil Minnesota on whatever account, as well as all other things in action belonging to each of Northern Oil Nevada and Northern Oil Minnesota, will be vested in Northern Oil Minnesota.
c.
All property, rights, privileges, powers and franchises and all and every other interest will be thereafter the property of Northern Oil Minnesota as they were of Northern Oil Nevada or Northern Oil Minnesota.
d.
The title to any real estate vested by deed or otherwise, in either of Northern Oil Nevada or Northern Oil Minnesota will not revert or be in any way impaired by reason of the Merger.
e.
All rights of creditors and all liens upon any property of Northern Oil Nevada will be preserved unimpaired.
f.
To the extent permitted by law, any claim existing or action or proceeding pending by or against either of Northern Oil Nevada or Northern Oil Minnesota may be prosecuted as if the Merger had not taken place. All debts, liabilities and duties of Northern Oil Nevada and Northern Oil Minnesota will thenceforth attach to Northern Oil Minnesota and may be enforced against it to the same extent as if such debts, liabilities and duties had been incurred or contracted by it.
g.
All acts, plans, policies, agreements, arrangements, approvals and authorizations of Northern Oil Nevada, its stockholders, directors, officers, employees and agents that were valid and effective immediately prior to the Effective Time, will be taken for all purposes as the acts, plans, policies, agreements, arrangements, approvals and authorizations of Northern Oil Minnesota and will be effective and binding thereon as the same were with respect to Northern Oil Nevada.
h.
At the Effective Time, the officers and directors of Northern Oil Nevada immediately prior to the Effective Time will be the officers and directors of the surviving or other entity.
i.
At the Effective Time, the articles of incorporation and bylaws, rules and regulations of Northern Oil Minnesota in effect immediately prior to the Effective Time will be the articles of incorporation and bylaws, rules and regulations of the surviving or other entity.
4.
The manner and basis, if any, of converting the owner’s interest of each constituent entity into owner’s interests, rights to purchase owner’s interests, or other securities of the surviving or other entity or into cash or other property in whole or in part or cancelling such owner’s interests in whole or in part: At the Effective Time, (a) all of the common stock of Northern Oil Nevada issued and outstanding immediately prior to the Effective Time, shall automatically and without further act of Northern Oil Nevada, Northern Oil Minnesota or any holder thereof, be extinguished and converted into the common stock of Northern Oil Minnesota on a 1:1 basis, and (b) all of the common stock of Northern Oil Minnesota issued and outstanding immediately prior to the Effective Time, shall automatically and without further act of Northern Oil Nevada, Northern Oil Minnesota or any holder thereof, be extinguished and cancelled.
5.
Amendment to the Plan of Merger: The Board may amend this Plan of Merger at any time after the stockholders of Northern Oil Nevada approve this Plan of Merger, but before the Articles of Merger become effective, without obtaining the approval of the stockholders of Northern Oil Nevada for the amendment if the amendment does not:
a.
Alter or change the manner or basis of exchanging an owner’s interest to be acquired for owner’s interests, rights to purchase owner’s interests, or other securities of Northern Oil Minnesota, or for cash or other property in whole or in part; or
b.
Alter or change any of the terms and conditions of this Plan of Merger in a manner that adversely affects the stockholders of Northern Oil Nevada.
Exhibit 3.2
BYLAWS
OF
NORTHERN OIL AND GAS, INC.
SHAREHOLDERS
Section 1.01 Place of Meetings
. Each meeting of the
shareholders shall be held at the principal executive office of the Corporation
or at such other place as may be designated by the Board of Directors or the
Chief Executive Officer. But any meeting called by or at the demand of a
shareholder or shareholders shall be held in the county where the principal
executive office of the Corporation is located. The Board of Directors may
determine that a meeting of the shareholders shall not be held at a physical
place, but instead solely by means of remote communication. Participation by
remote communication constitutes presence at the meeting.
Section 1.02 Regular Meetings
. Regular meetings of the shareholders
may be held on an annual or other less frequent basis as determined by the
Board of Directors; provided, however, that if a regular meeting has not been
held during the immediately preceding 15 months, a shareholder or shareholders
holding three percent or more of the voting power of all shares entitled to
vote may demand a regular meeting of shareholders by written demand given to
the Chief Executive Officer or Chief Financial Officer of the Corporation. At
each regular meeting the shareholders shall elect qualified successors for
directors who serve for an indefinite term or whose terms have expired or are
due to expire within six months after the date of the meeting and may transact
any other business, provided, however, that no business with respect to which
special notice is required by law shall be transacted unless such notice shall
have been given.
Section 1.03 Special Meetings
. A special meeting of the
shareholders may be called for any purpose or purposes at any time by the Chief
Executive Officer; by the Chief Financial Officer; by the Board of Directors or
any two or more members thereof; or by one or more shareholders holding not
less than ten percent of the voting power of all shares of the Corporation
entitled to vote (except that a special meeting called by shareholders for the
purpose of considering any action to directly or indirectly effect a business
combination, including any action to change or otherwise affect the composition
of the Board of Directors for that purpose, must be called by shareholders
holding not less than twenty-five percent of all shares of the Corporation
entitled to vote), who shall demand such special meeting by written notice
given to the Chief Executive Officer or the Chief Financial Officer of the
Corporation specifying the purposes of such meeting.
Section 1.04 Meetings Held Upon
Shareholder Demand
.
Within 30 days after receipt of a demand by the Chief Executive Officer or the
Chief Financial Officer from any shareholder or shareholders entitled to call a
meeting of the shareholders, it shall be the duty of the Board of Directors of
the Corporation to cause a special or regular meeting of shareholders, as the
case may be, to be duly called and held on notice no later than 90 days after
receipt of such demand. If the Board fails to cause such a meeting to be called
and held as required by this Section, the shareholder or shareholders making
the demand may call the meeting by giving notice as provided in Section 1.06
hereof at the expense of the Corporation.
Section 1.05 Adjournments
. Any meeting of the shareholders
may be adjourned from time to time to another date, time and place. If any
meeting of the shareholders is so adjourned, no notice as to such adjourned
meeting need be given if the date, time and place at which the meeting will be
reconvened are announced at the time of adjournment and the adjourned meeting
is held not more than 120 days after the date fixed for the original meeting.
Section 1.06 Notice of Meetings
. Unless otherwise required by
law, written notice of each meeting of the shareholders, stating the date, time
and place and, in the case of a special meeting, the purpose or purposes, shall
be given at least 10 days and not more than 60 days before the meeting to every
holder of shares entitled to vote at such meeting except as specified in
Section 1.05 or as otherwise permitted by law. Notice may be given to a
shareholder by means of electronic communication if the requirements of
Minnesota Statutes Section 302A.436, Subdivision 5, as amended from time to
time, are met. Notice to a shareholder is also effectively given if the notice
is addressed to the shareholder or a group of shareholders in a manner
permitted by the rules and regulations under the Securities Exchange Act of
1934, so long as the Corporation has first received the written or implied
consent required by those rules and regulations. The business transacted at a
special meeting of shareholders is limited to the purposes stated in the notice
of the meeting.
Section
1.07 Waiver of Notice
.
A shareholder may waive notice of the date, time, place, or purpose of a
meeting of shareholders. A waiver of notice by a shareholder entitled to notice
is effective whether given before, at, or after the meeting and whether given
in writing, orally, by authenticated electronic communication, or by
attendance. Attendance by a shareholder at a meeting, including attendance by
means of remote communication, is a waiver of notice of that meeting, unless
the shareholder objects at the beginning of the meeting to the transaction of
business because the meeting is not lawfully called or convened, or objects
before a vote on an item of business because the item may not lawfully be
considered at that meeting and does not participate in the consideration of the
item at that meeting.
Section 1.08 Voting Rights
. Subdivision 1. Except as may
otherwise be provided in the Articles of Incorporation of the Corporation, a
shareholder shall have one vote for each share held which is entitled to vote.
Except as otherwise required by law, a holder of shares entitled to vote may
vote any portion of the shares in any way the shareholder chooses. If a
shareholder votes without designating the proportion or number of shares voted
in a particular way, the shareholder is deemed to have voted all of the shares
in that way.
Subdivision 2. The Board of
Directors (or an officer of the Corporation, if authorized by the Board) may
fix a date not more than 60 days before the date of a meeting of shareholders
as the date for the determination of the holders of shares entitled to notice
of and entitled to vote at the meeting. When a date is so fixed, only
shareholders on that date are entitled to notice of and permitted to vote at
that meeting of shareholders.
Section 1.09 Proxies
. A shareholder may cast or
authorize the casting of a vote by (a) filing a written appointment of a proxy,
signed by the shareholder, with an officer of the Corporation at or before the
meeting at which the appointment is to be effective, or (b) by telephonic transmission
or authenticated electronic communication, whether or not accompanied by
written instructions of the shareholder, of an appointment of a proxy with the
Corporation or the Corporation's duly authorized agent at or before the meeting
at which the appointment is to be effective. The telephonic transmission or
authenticated electronic communication must set forth or be submitted with
information from which it can be determined that the appointment was authorized
by the shareholder. Any copy, facsimile telecommunication, or other
reproduction of the original of either the writing or transmission may be used
in lieu of the original, provided that it is a complete and legible
reproduction of the entire original.
Section 1.10 Quorum
. The holders of a majority of
the voting power of the shares entitled to vote at a shareholders meeting are a
quorum for the transaction of business. If a quorum is present when a duly
called or held meeting is convened, the shareholders present may continue to
transact business until adjournment, even though the withdrawal of a number of
the shareholders originally present leaves less than the proportion or number
otherwise required for a quorum.
Section 1.11 Acts of Shareholders
. Subdivision 1. Except for the
election of directors or as otherwise required by law or specified in the
Articles of Incorporation of the Corporation, the shareholders shall take
action by the affirmative vote of the holders of the greater of (a) a majority
of the voting power of the shares present and entitled to vote on that item of
business or (b) a majority of the voting power of the minimum number of shares
entitled to vote that would constitute a quorum for the transaction of business
at a duly held meeting of shareholders. D
irectors are
elected by a plurality of the voting power of the shares present and entitled
to vote on the election of directors at a meeting at which a quorum is present.
Subdivision 2. A shareholder
voting by proxy authorized to vote on less than all items of business
considered at the meeting shall be considered to be present and entitled to
vote only with respect to those items of business for which the proxy has
authority to vote. A proxy who is given authority by a shareholder who abstains
with respect to an item of business shall be considered to have authority to
vote on that item of business.
Section
1.12 Action Without a Meeting
.
Any action required or permitted to be taken at a meeting of the shareholders
of the Corporation may be taken without a meeting by written action signed, or
consented to by authenticated electronic communication, by all of the
shareholders entitled to vote on that action. The written action is effective
when it has been signed, or consented to by authenticated electronic
communication, by the required shareholders, unless a different effective time
is provided in the written action.
Section 1.13 Advance-Notice
Requirements
.
Subdivision 1. Only persons who are nominated in accordance with the procedures
set forth in this Subd. 1 shall be eligible for election as directors.
Nominations of persons for election to the Board of Directors of the
Corporation may be made at a meeting of shareholders (i) by or at the
direction of the Board of Directors, or (ii) by any shareholder of the
Corporation entitled to vote for the election of directors at the meeting who
complies with the notice procedures hereinafter set forth in this Subd. 1.
(a)
Timing
of Notice
. Nominations by shareholders shall be made pursuant to timely
notice in writing to the Secretary of the Corporation. To be timely, a
shareholder’s notice of nominations to be made at an annual meeting of
shareholders must be delivered to the Secretary of the Corporation, or mailed
and received at the principal executive office of the Corporation, not less than
90 days before the first anniversary of the date of the preceding year’s annual
meeting of shareholders. If, however, the date of the annual meeting of
shareholders is more than 30 days before or 60 days after such anniversary
date, notice by a shareholder shall be timely only if so delivered or so mailed
and received not less than 90 days before such annual meeting or, if later,
within 10 days after the first public announcement of the date of such annual
meeting. Except to the extent otherwise required by law, the adjournment of an
annual meeting of shareholders shall not commence a new time period for the
giving of a shareholder’s notice as described above.
(b)
Content
of Notice
. A shareholder’s notice to the Corporation of nominations for an
annual meeting of shareholders shall set forth (x) as to each person whom
the shareholder proposes to nominate for election or re‑election as a
director: (i) such person’s name, (ii) all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or that is otherwise required,
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended and (iii) such person’s written consent to being named in the proxy
statement as a nominee and to serving as a director if elected; and (y) as
to the shareholder giving the notice: (i) the name and address, as they
appear on the Corporation’s books, of such shareholder and of any beneficial
owners on whose behalf the nomination is made,(ii) (A) the class or series
(if any) and number of shares of the Corporation that are beneficially owned by
such shareholder or any such beneficial owner, (B) any option, warrant,
convertible security, stock appreciation right, swap, or similar right with an
exercise or conversion privilege or a settlement payment or mechanism at a
price related to any class or series of shares of the Corporation or with a
value derived in whole or in part from the value of any class or series of
shares of the Corporation, whether or not such instrument or right shall be
subject to settlement in the underlying class or series of capital stock of the
Corporation or otherwise (a “Derivative Instrument”) owned beneficially by such
shareholder or any such beneficial owner and any other opportunity to profit or
share in any profit derived from any increase or decrease in the value of
shares of the Corporation, (C) any proxy, contract, arrangement, understanding,
or relationship pursuant to which such shareholder or any such beneficial owner
has a right to vote any shares of the Corporation, (D) any short interest in
any security of the Corporation (for purposes of these Bylaws, a person shall
be deemed to have a “short interest” in a security if such person has the opportunity
to profit or share in any profit derived from any decrease in the value of the
subject security), (E) any rights to dividends on the shares of the Corporation
owned beneficially by such shareholder or any such beneficial owner that are
separated or separable from the underlying shares of the Corporation, (F) any
proportionate interest in shares of the Corporation or Derivative Instruments
held, directly or indirectly, by a general or limited partnership in which such
shareholder or any such beneficial owner is a general partner or, directly or
indirectly, beneficially owns an interest in a general partner and (G) any
performance-related fees (other than an asset-based fee) that such shareholder
or any such beneficial owner is entitled to based on any increase or decrease
in the value of shares of the Corporation or Derivative Instruments, if any, as
of the date of such notice, including without limitation any such interests
held by members of such shareholder’s or any such beneficial owner’s immediate
family sharing the same household (which information shall be supplemented by
such shareholder not later than 10 days after the record date for the meeting
to disclose such ownership as of the record date) and (iii) a representation
that the shareholder is a holder of record of shares of the Corporation
entitled to vote for the election of directors, will continue to be a holder of
record of shares entitled to vote for the election of directors through the
date of the meeting and intends to appear in person or by proxy at the meeting
to nominate the person or persons specified in the notice. At the request of
the Board of Directors, any person nominated by the Board of Directors for
election as a director shall furnish to the Secretary of the Corporation the information
required to be set forth in a shareholder’s notice of nomination that pertains
to a nominee.
(c)
Consequences
of Failure to Give Timely Notice
. Notwithstanding anything in these Bylaws
to the contrary, no person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in
this Subd. 1. The Chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed in this Subd. 1 and, if the
Chairman should so determine, the Chairman shall so declare to the meeting and
the defective nomination shall be disregarded.
(d)
Inapplicable
in Certain Circumstances
. Notwithstanding anything in this Subd. 1 to the
contrary, if the Securities and Exchange Commission adopts final rules
requiring in certain events the inclusion in the Corporation’s proxy materials
of persons nominated by shareholders for election to the Board of Directors,
then the requirements, procedures and notice deadlines of such final rules and
not this Subd. 1 shall govern any nomination made pursuant to such final rules
as if the Corporation had no advance-notice requirements for such nominations.
Subd. 2. The
business conducted at any special meeting of shareholders of the Corporation
shall be limited to the purposes stated in the notice of the special meeting
pursuant to Section 1.03 of these Bylaws. At any annual meeting of shareholders
of the Corporation, the proposal of business (other than the nomination and
election of directors, which shall be subject to Subd. 1 of this Section)
to be conducted by the shareholders may be made only (i) pursuant to the
Corporation’s notice of meeting, (ii) by or at the direction of the Board
of Directors, or (iii) by any shareholder of the Corporation entitled to
vote at the meeting who complies with the notice procedures hereinafter set
forth in this Subd. 2.
(a)
Timing
of Notice
. For such business to be properly brought before any annual meeting
by a shareholder, the shareholder must have given timely notice thereof in
writing to the Secretary of the Corporation. To be timely, a shareholder’s
notice of any such business to be conducted at an annual meeting must be
delivered to the Secretary of the Corporation, or mailed and received at the
principal executive office of the Corporation, not less than 90 days
before the first anniversary of the date of the preceding year’s annual meeting
of shareholders. If, however, the date of the annual meeting of shareholders is
more than 30 days before or 60 days after such anniversary date, notice by a
shareholder shall be timely only if so delivered or so mailed and received not
less than 90 days before such annual meeting or, if later, within 10 days after
the first public announcement of the date of such annual meeting. Except to the
extent otherwise required by law, the adjournment of an annual meeting of
shareholders shall not commence a new time period for the giving of a
shareholder’s notice as required above.
(b)
Content
of Notice
. A shareholder’s notice to the Corporation shall set forth as to
each matter the shareholder proposes to bring before the annual meeting
(i) a brief description of the business desired to be brought before the
meeting and the reasons for conducting such business at the meeting,
(ii) the name and address, as they appear on the Corporation’s books, of
the shareholder proposing such business and of any beneficial owner on whose
behalf the proposal is made, (iii) the information called for by clause
(b)(y)(ii) of Subd. 1 of this Section, (iv) any material interest of the
shareholder or any such beneficial owner in such business and (v) a
representation that the shareholder is a holder of record of shares entitled to
vote at the meeting, will continue to be a holder of record of shares entitled
to vote at the meeting through the date of the meeting and intends to appear in
person or by proxy at the meeting to make the proposal.
(c)
Consequences
of Failure to Give Timely Notice
. Notwithstanding anything in these Bylaws
to the contrary, no business (other than the nomination and election of
directors) shall be conducted at any annual meeting except in accordance with
the procedures set forth in this Subd. 2. The Chairman of the 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 procedures
described in this Subd. 2 and, if the Chairman should so determine, the
Chairman shall so declare to the meeting and any such business not properly
brought before the meeting shall not be transacted. Nothing in this Section
shall be deemed to preclude discussion by any shareholder of any business
properly brought before the meeting in accordance with these Bylaws.
(d)
Inapplicable
in Certain Circumstances
. Notwithstanding anything in this Subd. 2 to the
contrary, this Section does not apply to any shareholder proposal made pursuant
to Rule 14a-8 promulgated under the Securities Exchange Act of 1934, as
amended. The requirements, procedures and notice deadlines of Rule 14a-8 shall
govern any proposal made pursuant thereto.
Subd. 3. For purposes of this
Section, “public announcement” means disclosure (i) when made in a press
release reported by the Dow Jones News Service, Associated Press, or comparable
national news service, (ii) when filed in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14, or 15(d) of the Securities Exchange Act of 1934, as amended, or (iii) when
mailed as the notice of the meeting pursuant to Section 1.06 hereof.
Subd. 4. Notwithstanding the
foregoing provisions of this Section, a shareholder shall also comply with all
applicable requirements of Minnesota law and the Securities Exchange Act of
1934, as amended and the rules and regulations thereunder with respect to the
matters set forth in this Section.
DIRECTORS
Section 2.01 Number;
Qualifications
.
The business and affairs of the Corporation shall be managed by or under the
direction of a Board of one or more directors. Directors shall be natural
persons. The number of directors to constitute the Board shall be determined
from time to time by resolution of the Board. Directors need not be
shareholders.
Section 2.02 Term
. Each director shall serve for
an indefinite term that expires at the next regular meeting of the
shareholders. A director shall hold office until a successor is elected and has
qualified or until the earlier death, resignation, removal, or disqualification
of the director.
Section 2.03 Vacancies
. Vacancies on the Board of
Directors resulting from the death, resignation, removal, or disqualification
of a director may be filled by the affirmative vote of a majority of the
remaining members of the Board, though less than a quorum. Vacancies on the
Board resulting from newly created directorships may be filled by the
affirmative vote of a majority of the directors serving at the time such
directorships are created. Each person elected to fill a vacancy shall hold
office until a qualified successor is elected by the shareholders at the next
regular meeting or at any special meeting duly called for that purpose.
Section 2.04 Place of Meetings
. Each meeting of the Board of
Directors shall be held at the principal executive office of the Corporation or
at such other place as may be designated from time to time by a majority of the
members of the Board or by the Chief Executive Officer. The Board of Directors
may determine that a meeting of the Board not be held at a physical place, but
instead solely by means of remote communication through which the directors may
participate with each other during the meeting.
Section 2.05 Regular Meetings
. Regular meetings of the Board
of Directors for the election of officers and the transaction of any other
business shall be held without notice at the place of and immediately after
each regular meeting of the shareholders.
Section 2.06 Special Meetings
. A special meeting of the Board
of Directors may be called for any purpose or purposes at any time by any
member of the Board by giving not less than two days’ notice to all directors
of the date, time and place of the meeting, provided that when notice is
mailed, at least four days’ notice shall be given. The notice need not state
the purpose of the meeting.
Section 2.07 Waiver of Notice;
Previously Scheduled Meetings
.
Subdivision 1. A director of the Corporation may waive notice of the date, time
and place of a meeting of the Board. A waiver of notice by a director entitled
to notice is effective whether given before, at, or after the meeting and
whether given in writing, orally, by authenticated electronic communication, or
by attendance. Attendance by a director at a meeting is a waiver of notice of
that meeting, unless the director objects at the beginning of the meeting to
the transaction of business because the meeting is not lawfully called or
convened and thereafter does not participate in the meeting.
Subdivision
2. If the day or date, time and place of a Board meeting have been provided
herein or announced at a previous meeting of the Board, no notice is required.
Notice of an adjourned meeting need not be given other than by announcement at
the meeting at which adjournment is taken of the date, time and place at which
the meeting will be reconvened.
Section 2.08 Quorum
. The presence of a majority of
the directors currently holding office shall be necessary to constitute a
quorum for the transaction of business. In the absence of a quorum, a majority
of the directors present may adjourn a meeting from time to time without
further notice until a quorum is present. If a quorum is present when a duly
called or held meeting is convened, the directors present may continue to
transact business until adjournment, even though the withdrawal of a number of
the directors originally present leaves less than the proportion or number
otherwise required for a quorum.
Section 2.09 Acts of Board
. Except as otherwise required by
law or specified in the Articles of Incorporation of the Corporation, the Board
shall take action by the affirmative vote of a majority of the directors
present at a duly held meeting.
Section 2.10 Participation by
Remote Communication
.
A director may participate in a Board meeting by conference telephone, or, if
authorized by the Board, by any other means of remote communication through
which the director, other directors so participating and all directors
physically present at the meeting may participate with each other during the
meeting. A director so participating is deemed present at the meeting.
Section 2.11 Absent Directors
. A director of the Corporation
may give advance written consent or opposition to a proposal to be acted on at
a Board meeting. If the director is not present at the meeting, consent or
opposition to a proposal does not constitute presence for purposes of
determining the existence of a quorum, but consent or opposition shall be
counted as a vote in favor of or against the proposal and shall be entered in
the minutes or other record of action at the meeting, if the proposal acted on
at the meeting is substantially the same or has substantially the same effect
as the proposal to which the director has consented or objected.
Section 2.12 Action Without a
Meeting
. An
action required or permitted to be taken at a Board meeting may be taken
without a meeting by written action signed, or consented to by authenticated
electronic communication, by all of the directors. Any action, other than an
action requiring shareholder approval, if the Articles of Incorporation so
provide, may be taken by written action signed, or consented to by
authenticated electronic communication, by the number of directors that would
be required to take the same action at a meeting of the Board at which all
directors were present. The written action is effective when signed, or
consented to by authenticated electronic communication, by the required number
of directors, unless a different effective time is provided in the written
action. If written action is permitted to be taken and is taken, by less than
all directors, then all directors shall be notified immediately of its text and
effective date.
Section 2.13 Committees
. Subdivision 1. A resolution
approved by the affirmative vote of a majority of the Board may establish
committees having the authority of the Board in the management of the business
of the Corporation only to the extent provided in the resolution. Committees
shall be subject at all times to the direction and control of the Board, except
for special litigation committees established under Section 2.14.
Subdivision 2. A committee shall
consist of one or more natural persons, who need not be directors, appointed by
affirmative vote of a majority of the directors present at a duly held Board
meeting.
Subdivision 3. Section 2.04 and
Sections 2.06 to 2.12 hereof shall apply to committees and members of
committees to the same extent as those sections apply to the Board and
directors.
Subdivision 4. Minutes, if any,
of committee meetings shall be made available upon request to members of the
committee and to any director.
Subdivision
5. Unless otherwise provided in the Articles of Incorporation or the resolution
of the Board establishing the committee, a committee may create one or more
subcommittees, each consisting of one or more members of the committee and may
delegate to a subcommittee any or all of the authority of the committee. In
these Bylaws, unless the language or context clearly indicates that a different
meaning is intended, any reference to a committee is deemed to include a
subcommittee and any reference to a committee member is deemed to include a
subcommittee member.
Section 2.14 Special Litigation
Committee
. The
Board may establish a committee composed of one or more independent directors
or other independent persons to consider legal rights or remedies of the
Corporation and whether those rights and remedies should be pursued.
Section 2.15 Compensation
. The Board may fix the
compensation, if any, of directors.
OFFICERS
Section 3.01 Number and
Designation
. The
Corporation shall have one or more natural persons exercising the functions of
the offices of Chief Executive Officer and Chief Financial Officer. The Board
of Directors may elect or appoint such other officers as it deems necessary for
the operation and management of the Corporation, with such powers, rights,
duties and responsibilities as may be determined by the Board, including,
without limitation, a President, one or more Vice Presidents, a Secretary and a
Treasurer, each of whom shall have the powers, rights, duties and
responsibilities set forth in these Bylaws unless otherwise determined by the
Board. The Chief Executive Officer may also appoint such other officers, other
than the Chief Financial Officer, as he or she deems necessary for the operation
and management of the Corporation. Any of the offices or functions of those
offices may be held by the same person.
Section 3.02 Chief Executive
Officer
. Unless
provided otherwise by a resolution adopted by the Board of Directors, the Chief
Executive Officer (a) shall have general active management of the business of
the Corporation; (b) shall, when present, preside at all meetings of the
shareholders and Board; (c) shall see that all orders and resolutions of the
Board are carried into effect; (d) may maintain records of and certify
proceedings of the Board and shareholders; and (e) shall perform such other
duties as may from time to time be assigned by the Board.
Section 3.03 Chief Financial
Officer
. Unless
provided otherwise by a resolution adopted by the Board of Directors, the Chief
Financial Officer (a) shall keep accurate financial records for the
Corporation; (b) shall deposit all monies, drafts and checks in the name of and
to the credit of the Corporation in such banks and depositories as the Board
shall designate from time to time; (c) shall endorse for deposit all notes,
checks and drafts received by the Corporation as ordered by the Board, making
proper vouchers therefor; (d) shall disburse corporate funds and issue checks
and drafts in the name of the Corporation, as ordered by the Board; (e) shall
render to the Chief Executive Officer and the Board, whenever requested, an
account of all of such officer’s transactions as Chief Financial Officer and of
the financial condition of the Corporation; and (f) shall perform such other
duties as may be prescribed by the Board or the Chief Executive Officer from
time to time.
Section 3.04 President
. Unless otherwise determined by
the Board of Directors, the President shall be the Chief Executive Officer of
the Corporation. If an officer other than the President is designated Chief
Executive Officer, the President shall perform such duties as may from time to
time be assigned by the Board or the Chief Executive Officer.
Section 3.05 Vice Presidents
. Each Vice President shall
perform such duties as may from time to time be assigned by the Board or the
Chief Executive Officer. Any one or more Vice Presidents may be designated by
the Board of Directors or the Chief Executive Officer as Executive Vice Presidents
or Senior Vice Presidents.
Section 3.06 Secretary
. The Secretary, unless otherwise
determined by the Board of Directors, shall attend all meetings of the
shareholders and all meetings of the Board, shall record or cause to be
recorded all proceedings thereof in a book to be kept for that purpose and may
certify such proceedings. Except as otherwise required or permitted by law or
by these Bylaws, the Secretary shall give or cause to be given notice of all
meetings of the shareholders and all meetings of the Board.
Section 3.07 Treasurer
. Unless otherwise determined by
the Board of Directors, the Treasurer shall be the Chief Financial Officer of
the Corporation. If an officer other than the Treasurer is designated Chief
Financial Officer, the Treasurer shall perform such duties as may from time to
time be assigned by the Board, the Chief Executive Officer, or the Chief
Financial Officer.
Section
3.08 Authority and Duties
.
In addition to the foregoing authority and duties, all officers of the
Corporation shall respectively have such authority and perform such duties in
the management of the business of the Corporation as may be designated from
time to time by the Board of Directors. Unless prohibited by a resolution
approved by the affirmative vote of a majority of the directors present, an
officer elected or appointed by the Board may, without the approval of the
Board, delegate some or all of the duties and powers of an office to other
persons.
Section 3.09 Term
. Subdivision 1. All officers of
the Corporation shall hold office until their respective successors are chosen
and have qualified or until their earlier death, resignation, or removal.
Subdivision 2. An officer may
resign at any time by giving written notice to the Corporation. The resignation
is effective without acceptance when the notice is given to the Corporation,
unless a later effective date is specified in the notice.
Subdivision 3. An officer may be
removed at any time, with or without cause, by a resolution approved by the
affirmative vote of a majority of the directors present at a duly held Board
meeting. An officer, other than the Chief Financial Officer, may also be
removed at any time, with or without cause, by the Chief Executive Officer.
Subdivision 4. A vacancy in an
office, other than Chief Executive Officer or Chief Financial Officer, because
of death, resignation, removal, disqualification, or other cause may be filled
for the unexpired portion of the term by the Board or by the Chief Executive
Officer. Any such vacancy in the office of Chief Executive Officer or Chief
Financial Officer shall be so filled by the Board.
Section 3.10 Salaries
. The salaries of all officers of
the Corporation shall be fixed by the Board of Directors or by the Chief
Executive Officer if authorized by the Board.
INDEMNIFICATION
Section 4.01 Indemnification
. The Corporation shall indemnify
its officers and directors for such expenses and liabilities, in such manner,
under such circumstances and to such extent, as required or permitted by
Minnesota Statutes, Section 302A.521, as amended from time to time, or as
required or permitted by other provisions of law.
Section 4.02 Insurance
. The Corporation may purchase
and maintain insurance on behalf of any person in such person’s official
capacity against any liability asserted against and incurred by such person in
or arising from that capacity, whether or not the Corporation would otherwise
be required to indemnify the person against the liability.
SHARES
Section 5.01 Certificated and
Uncertificated Shares
.
Subdivision 1. The shares of the Corporation shall be either certificated
shares or uncertificated shares. Each holder of duly issued certificated shares
is entitled to a certificate of shares.
Subdivision 2. Each certificate
of shares of the Corporation shall bear the corporate seal, if any and shall be
signed by the Chief Executive Officer, or the President or any Vice President
and the Chief Financial Officer, or the Secretary or any Assistant Secretary,
but when a certificate is signed by a transfer agent or a registrar, the
signature of any such officer and the corporate seal upon such certificate may
be facsimiles, engraved or printed. If a person signs or has a facsimile
signature placed upon a certificate while an officer, transfer agent or
registrar of the Corporation, the certificate may be issued by the Corporation,
even if the person has ceased to serve in that capacity before the certificate
is issued, with the same effect as if the person had that capacity at the date
of its issue.
Subdivision 3. A certificate
representing shares issued by the Corporation shall, if the Corporation is
authorized to issue shares of more than one class or series, set forth upon the
face or back of the certificate, or shall state that the Corporation will
furnish to any shareholder upon request and without charge, a full statement of
the designations, preferences, limitations and relative rights of the shares of
each class or series authorized to be issued, so far as they have been
determined and the authority of the Board to determine the relative rights and
preferences of subsequent classes or series.
Subdivision 4. The Corporation may determine that some or all of any or all classes and series of the shares of the Corporation will be uncertificated shares. Any such determination shall not apply to shares represented by a certificate until the certificate is surrendered to the Corporation.
Section 5.02 Declaration of Dividends and Other Distributions
. The Board of Directors shall have the authority to declare dividends and other distributions upon the shares of the Corporation to the extent permitted by law.
Section 5.03 Transfer of Shares
. Shares of the Corporation may be transferred only on the books of the Corporation by the holder thereof, in person or by such person’s attorney. In the case of certificated shares, shares shall be transferred only upon surrender and cancellation of certificates for a like number of shares. The Board of Directors, however, may appoint one or more transfer agents and registrars to maintain the share records of the Corporation and to effect transfers of shares.
Section 5.04 Record Date
. The Board of Directors may fix a time, not exceeding 60 days preceding the date fixed for the payment of any dividend or other distribution, as a record date for the determination of the shareholders entitled to receive payment of such dividend or other distribution and in such case only shareholders of record on the date so fixed shall be entitled to receive payment of such dividend or other distribution, notwithstanding any transfer of any shares on the books of the Corporation after any record date so fixed.
MISCELLANEOUS
Section 6.01 Execution of Instruments
. Subdivision 1. All deeds, mortgages, bonds, checks, contracts and other instruments pertaining to the business and affairs of the Corporation shall be signed on behalf of the Corporation by the Chief Executive Officer, or the President, or any Vice President, or by such other person or persons as may be designated from time to time by the Board of Directors.
Subdivision 2. If a document must be executed by persons holding different offices or functions and one person holds such offices or exercises such functions, that person may execute the document in more than one capacity if the document indicates each such capacity.
Section 6.02 Advances
. The Corporation may, without a vote of the directors, advance money to its directors, officers or employees to cover expenses that can reasonably be anticipated to be incurred by them in the performance of their duties and for which they would be entitled to reimbursement in the absence of an advance.
Section 6.03 Corporate Seal
. The seal of the Corporation, if any, shall be a circular embossed seal having inscribed thereon the name of the Corporation and the following words:
“Corporate Seal Minnesota.”
Section 6.04 Fiscal Year
. The fiscal year of the Corporation shall be determined by the Board of Directors.
Section 6.05 Amendments
. The Board of Directors shall have the power to adopt, amend, or repeal the Bylaws of the Corporation, subject to the power of the shareholders to change or repeal the same, provided, however, that the Board shall not adopt, amend, or repeal any Bylaw fixing a quorum for meetings of shareholders, prescribing procedures for removing directors, or filling vacancies in the Board, or fixing the number of directors or their classifications, qualifications, or terms of office, but may adopt or amend a Bylaw that increases the number of directors.
