Exhibit
3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
AMERICAN RAILCAR INDUSTRIES, INC.
The undersigned, under the provisions and subject to the requirements of the laws of the State
of North Dakota (particularly (i) Chapter 10-19.1 of the North Dakota Century Code, generally known
as the North Dakota Business Corporation Act, and (ii) Chapter 10-35 of the North Dakota Century
Code, generally known as the North Dakota Publicly Traded Corporations Act, and the acts amendatory
thereof and supplemental thereto, collectively referred to hereinafter as the Corporation Laws of
the State of North Dakota), hereby certifies that:
FIRST:
The name of the corporation (hereinafter called the Corporation) is
American Railcar Industries, Inc.
SECOND:
The name of the commercial registered agent in the State of North Dakota is
CT Corporation System.
THIRD:
The effective date of incorporation of the Corporation shall be the date that
the Secretary of Sate of the State of North Dakota issues the Corporations Certificate of
Incorporation.
FOURTH:
The Corporation expressly elects to be governed by the North Dakota Publicly
Traded Corporations Act.
FIFTH:
The total number of shares that the Corporation shall have authority to issue
is 51,000,000, consisting of 50,000,000 shares of common stock, all of a par value of one cent
($.01) each (Common Stock), and 1,000,000 shares of preferred stock, all of a par value of one
cent ($.01) each (Preferred Stock). The voting powers, designations, preferences and relative,
participating, optional or other special rights, and the qualifications, limitations or
restrictions thereof, in respect of the classes of stock of the Corporation are as follows:
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A.
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The Preferred Stock of the Corporation may be issued from time to time in one
or more series of any number of shares, provided that the aggregate number of shares
issued and not canceled in any and all such series shall not exceed the total number of
shares of preferred stock hereinabove authorized.
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B.
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To the extent not prohibited by §10-35-17 of the North Dakota Publicly Traded
Corporations Act, or any successor provision thereto, authority is hereby vested in the
Board of Directors from time to time to authorize the issuance of one or more series of
preferred stock and, in connection with the creation of such series, to fix
by resolution or resolutions providing for the issuance of shares thereof the
characteristics of each such series including, without limitation, the following:
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1.
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the maximum number of shares to constitute such series, which
may subsequently be increased or decreased (but not below the number of shares
of that series then outstanding) by resolution of the Board of Directors, the
distinctive designation thereof and the stated value thereof if different than
the par value thereof;
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2.
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whether the shares of such series shall have voting powers,
full or limited, or no voting powers, and if any, the terms of such voting
powers, except that in no instance may any shares of any series be granted or
have cumulative voting rights;
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3.
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the dividend rate, if any, on the shares of such series, the
conditions and dates upon which such dividends shall be payable, the preference
or relation which such dividends shall bear to the dividends payable on any
other class or classes or on any other series of capital stock and whether such
dividend shall be cumulative or noncumulative;
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4.
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whether the shares of such series shall be subject to
redemption by the Corporation, and, if made subject to redemption, the times,
prices and other terms, limitations, restrictions or conditions of such
redemption;
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5.
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the relative amounts, and the relative rights or preference, if
any, of payment in respect of shares of such series, which the holders of
shares of such series shall be entitled to receive upon the liquidation,
dissolution or winding-up of the Corporation;
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6.
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whether or not the shares of such series shall be subject to
the operation of a retirement or sinking fund and, if so, the extent to and
manner in which any such retirement or sinking fund shall be applied to the
purchase or redemption of the shares of such series for retirement or to other
corporate purposes and the terms and provisions relative to the operation
thereof;
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7.
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whether or not the shares of such series shall be convertible
into, or exchangeable for, shares of any other class, classes or series, or
other securities, whether or not issued by the Corporation, and if so
convertible or exchangeable, the price or prices or the rate or rates of
conversion or exchange and the method, if any, of adjusting same;
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8.
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the limitations and restrictions, if any, to be effective while
any shares of such series are outstanding upon the payment of dividends or the
making of other distributions on, and upon the purchase, redemption or other
acquisition by the Corporation of, the Common Stock (as defined below) or
any other class or classes of stock of the Corporation ranking junior to the
shares of such series either as to dividends or upon liquidation,
dissolution or winding-up;
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9.
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the conditions or restrictions, if any, upon the creation of
indebtedness of the Corporation or upon the issuance of any additional stock
(including additional shares of such series or of any other series or of any
other class) ranking on a parity with or prior to the shares of such series as
to dividends or distributions of assets upon liquidation, dissolution or
winding-up; and
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10.
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any other preference and relative, participating, optional or
other special rights, and the qualifications, limitations or restrictions
thereof, as shall not be inconsistent with law, this ARTICLE FIFTH or any
resolution of the Board of Directors pursuant hereto.
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A.
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To the extent not prohibited by §10-35-17 of the North Dakota Publicly Traded
Corporations Act, or any successor provision thereto, Common Stock of the Corporation
may be issued from time to time in any number of shares, provided that the aggregate
number of shares issued and not canceled shall not exceed the total number of shares of
Common Stock hereinabove authorized.
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B.
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Unless expressly provided by the Board of Directors of the Corporation in
fixing the voting rights of any series of Preferred Stock, the holders of the
outstanding shares of Common Stock shall exclusively possess all 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 such stock standing in his
name on the books of the Corporation. No shares of Common Stock shall have cumulative
voting rights.
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C.
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Subject to the prior rights of the holders of Preferred Stock now or hereafter
granted pursuant to this ARTICLE FIFTH, the holders of Common Stock shall be entitled
to receive, when and as declared by the Board of Directors, out of funds legally
available for that purpose, dividends payable either in cash, stock or otherwise.
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D.
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In the event of any liquidation, dissolution or winding-up of the Corporation,
either voluntary or involuntary, after payment shall have been made in full to the
holders of Preferred Stock of any amounts to which they may be entitled and subject to
the rights of the holders of Preferred Stock now or hereafter granted pursuant to this
ARTICLE FIFTH, the holders of Common Stock shall be entitled, to the exclusion of the
holders of Preferred Stock of any and all series, to share,
ratably accordingly to the number of shares of Common Stock held by them, in all
remaining assets of the Corporation available for distribution to its shareholders.
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SIXTH:
The name and the mailing address of the incorporator is as follows:
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NAME
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ADDRESS
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Dale C. Davies
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c/o American Railcar Industries, Inc.,
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100 Clark Street, St. Charles, MO 63301
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SEVENTH:
For the management of the business and for the conduct of the affairs of
the Corporation, and in further definition, limitation and regulation of the powers of the
Corporation and of its directors and of its shareholders or any class thereof, as the case may
be, it is further provided that:
1. The business of the Corporation shall be conducted by the officers of the Corporation
under the supervision of the Board of Directors.
2. The number of directors which shall constitute the whole Board of Directors shall be
fixed by, or in the manner provided in, the Bylaws. No election of directors need be by written
ballot.
3. Subject to the limitations set forth in these Amended and Restated Articles of
Incorporation, the Board of Directors of the Corporation and the shareholders of the Corporation
may adopt, amend or repeal the Bylaws of the Corporation in the manner provided in the Bylaws, in
accordance with Section 10-19.1-31 of the North Dakota Business Corporations Act, or any
successor provision thereto, and Section 10-35-05 of the North Dakota Publicly Traded
Corporations Act, or any successor provision thereto.
4. The Corporation shall not, other than by an amendment to these Amended and Restated
Articles of Incorporation duly adopted by the shareholders of the Corporation, adopt or approve
any rights plan, poison pill or other similar plan, agreement or device designed to prevent
or make more difficult a hostile takeover of the Corporation by increasing the cost to a
potential acquirer of such a takeover either through the issuance of new rights, shares of common
stock or preferred stock or any other security or device that may be issued to shareholders of
the Corporation other than all shareholders of the Corporation that carry severe redemption
provisions, favorable purchase provisions or otherwise.
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EIGHTH:
No director shall be personally liable to the Corporation or its
shareholders for monetary damages for any breach of fiduciary duty by such director as a
director. Notwithstanding the foregoing sentence, a director shall be liable to the extent
provided by applicable law (i) for breach of the directors duty of loyalty to the Corporation or
its shareholders, (ii) for acts or omissions not in good faith or that involve intentional
misconduct
or a knowing violation of law, (iii) under Section 10-19.1-95 of the North Dakota Business
Corporations Act or Section 10-04-17 of the North Dakota Century Code, or any successor
provisions thereto, or (iv) for any transaction from which the director derived an improper
personal benefit. No amendment to or repeal of this ARTICLE EIGHTH 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.
NINTH:
The Corporation may, to the fullest extent permitted by the Corporation Laws
of the State of North Dakota, as the same may be amended and supplemented, indemnify any and all
persons whom it shall have power to indemnify thereunder from and against any and all of the
expenses, liabilities or other matters referred to or covered therein, and the indemnification
provided for herein shall not be deemed exclusive of any other rights to which a person
indemnified may be entitled under any Bylaw, agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office, and shall continue as to a person who has ceased to
be director, officer, employee or agent and shall inure to the benefit of the heirs, executors
and administrators of such a person.
TENTH:
Provisions Relating to the Founding Shareholders.
1.
Founding Shareholders.
In anticipation that Carl C. Icahn, entities controlled by
him (collectively with Carl C. Icahn, and as further defined below, the Founding Shareholders)
and the Corporation may engage, directly or indirectly, in the same or similar activities or lines
of business and have an interest in the same areas of corporate opportunities, and in recognition
of the benefits to be derived by the Corporation through its continued contractual, corporate and
business relations with the Founding Shareholders (including potential service of officers,
directors, members, shareholders, partners or employees of the Founding Shareholders as officers,
directors and employees of the Corporation), the provisions of this ARTICLE TENTH are set forth to
regulate, define and guide, to the fullest extent permitted by the Corporation Laws of the State of
North Dakota, the conduct of certain affairs of the Corporation as they may involve the Founding
Shareholders and their respective officers, directors, members, partners, shareholders and
employees and the powers, rights and duties of the Corporation and the Founding Shareholders and
their respective officers, directors, members, partners, shareholders and employees in connection
therewith. The following provisions shall be applicable to the maximum extent permitted by
applicable provisions of North Dakota law.
2.
Competition and Corporate Opportunities.
None of the Founding Shareholders or any
director, officer, member, partner, shareholder or employee of any Founding Shareholder (each,
acting in such capacity, a
Specified Party
), independently or with others, shall have any
duty to refrain from engaging directly or indirectly in the same or similar business activities or
lines of business as the Corporation and that might be in direct or indirect competition with the
Corporation. In the event that any Founding Shareholder or Specified Party acquires knowledge of a
potential transaction or matter that may be a corporate opportunity for any Founding
Shareholder or Specified Party, as applicable, and the Corporation, none of the Founding
Shareholders or Specified Parties shall have any duty to communicate or offer such corporate
opportunity to the Corporation, and any Founding Shareholder and Specified Party shall be entitled
to pursue or acquire such corporate opportunity for itself or to direct such corporate opportunity
to another person or entity and the Corporation shall have no right in or to such corporate
opportunity or to any income or proceeds derived therefrom.
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3.
Allocation of Corporate Opportunities.
a. To the maximum extent permitted by applicable North Dakota law, in the event that a
director, officer or employee of the Corporation who is also a Founding Shareholder or Specified
Party acquires knowledge of a potential transaction or matter that may be a corporate opportunity
or otherwise is then exploiting any corporate opportunity, subject to Section 3(b) of this ARTICLE
TENTH, the Corporation shall have no interest in such corporate opportunity and no expectation that
any corporate opportunity be offered to the Corporation, any such interest or expectation being
hereby renounced, so that, as a result of such renunciation, and for the avoidance of doubt, such
Founding Shareholder or Specified Party (i) shall have no duty to communicate or present such
corporate opportunity to the Corporation, (ii) shall have the right to hold any such corporate
opportunity for its own account or to recommend, sell, assign or transfer such corporate
opportunity to persons other than the Corporation and (iii) shall not breach any fiduciary duty to
the Corporation by reason of the fact that such Founding Shareholder or Specified Party pursues or
acquires any such corporate opportunity for itself or directs, sells, assigns or transfers such
corporate opportunity to another person or does not communicate information regarding such
corporate opportunity to the Corporation.
b. Notwithstanding the provisions of Sections 2 and 3(a) of this ARTICLE TENTH, the
Corporation does not renounce any interest or expectation it may have in any corporate opportunity
that is offered to any Founding Shareholder or Specified Party, if such opportunity is expressly
offered to such Founding Shareholder or Specified Party solely in, and as a direct result of, his
or her capacity as a director, officer or employee of the Corporation.
c. No amendment or repeal of this Section 3 of this ARTICLE TENTH shall apply to or have any
effect on the liability or alleged liability of any Founding Shareholder or Specified Party for or
with respect to any corporate opportunity of which such Founding Shareholder or Specified Party
becomes aware prior to such amendment or repeal.
4.
Certain Matters Deemed Not Corporate Opportunities.
In addition to and
notwithstanding the foregoing provisions of this ARTICLE TENTH, a corporate opportunity shall not
be deemed to belong to the Corporation, and the Corporation hereby renounces any interest therein,
if it is a business opportunity that the Corporation is not financially able, contractually
permitted or legally able to undertake, or that is, from its nature, not in the line of the
Corporations business or is of no practical advantage to it or that is one in which the
Corporation has no interest or reasonable expectation.
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5.
Certain Definitions
. For purposes of this ARTICLE TENTH only, (i) the term
Corporation
shall mean the Corporation and all corporations, limited liability companies,
partnerships, joint ventures, associations and other entities in which the Corporation beneficially
owns (directly or indirectly) fifty percent (50%) or more of the outstanding voting stock, voting
power or similar voting interests,
except
that for purposes of determining those persons
who are directors of the Corporation, such term shall mean the Corporation without regard to any
other entities in which it may hold an interest, and (ii) the term
Founding Shareholder
shall mean a Founding Shareholder and all corporations, limited liability companies, partnerships,
joint ventures, associations and other entities (other than the Corporation) in which such Founding
Shareholder beneficially owns (directly or indirectly) fifty percent (50%) or more of the
outstanding voting stock, voting power or similar interests and shall also include those entities
that constitute its corporate members or partners.
6.
Expiration of Certain Provisions.
Notwithstanding anything in these Amended and
Restated Articles of Incorporation to the contrary, the provisions of this ARTICLE TENTH shall
expire as to any Specified Party on the date that such person ceases to be a Specified Party.
Neither the alteration, amendment, change or repeal of any provision of this ARTICLE TENTH nor the
adoption of any provision of these Amended and Restated Articles of Incorporation inconsistent with
any provision of this ARTICLE TENTH shall eliminate or reduce the effect of this ARTICLE TENTH in
respect of any matter occurring, or any cause of action, suit or claim that, but for this ARTICLE
TENTH, would accrue or arise prior to such alteration, amendment, repeal or adoption.
7.
Deemed Notice.
Any person or entity purchasing or otherwise acquiring any interest
in any shares of the Corporation shall be deemed to have notice of and to have consented to the
provisions of this ARTICLE TENTH.
ELEVENTH:
From time to time any of the provisions of these Amended and Restated
Articles of Incorporation may be amended, altered or repealed, and other provisions authorized by
the Corporation Laws of the State of North Dakota at the time in force may be added or inserted
in the manner and at the time prescribed by said laws, and all rights at any time conferred upon
the shareholders of the Corporation by these Amended and Restated Articles of Incorporation are
granted subject to the provisions of this ARTICLE ELEVENTH.
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Exhibit
3.2
BYLAWS
of
AMERICAN RAILCAR INDUSTRIES, INC.
A North Dakota Publicly Traded Corporation
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Adopted: June 30, 2009
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/s/ Michael Obertop
Michael Obertop, Secretary
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BYLAWS
TABLE OF CONTENTS
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ARTICLE I. Shareholders
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1
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Section 1.1 Annual Meeting
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1
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Section 1.2 Special Meetings
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1
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Section 1.3 Notice of Meeting
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2
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Section 1.4 Quorum
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3
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Section 1.5 Voting and Proxies
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3
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Section 1.6 Action at Meeting
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3
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Section 1.7 Action Without Meeting
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3
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Section 1.8 Voting of Shares of Certain Holders
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3
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Section 1.9 Shareholder Lists
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4
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Section 1.10 Conduct of Meetings
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4
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Section 1.11 Notice of Shareholder Business at Annual Meeting
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5
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ARTICLE II. Board of Directors
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6
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Section 2.1 Powers
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6
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Section 2.2 Number of Directors; Qualifications
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6
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Section 2.3 Election of Directors
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6
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Section 2.4 Vacancies
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7
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Section 2.5 Change in Size of the Board
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7
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Section 2.6 Tenure and Resignation
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7
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Section 2.7 Removal
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7
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Section 2.8 Meetings
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8
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Section 2.9 Notice of Meeting
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8
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Section 2.10 Agenda
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8
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Section 2.11 Quorum
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8
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Section 2.12 Action at Meeting
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8
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Section 2.13 Action Without Meeting
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9
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Section 2.14 Compensation
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9
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Section 2.15 Committees
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9
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ARTICLE III. Officers
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9
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Section 3.1 Enumeration
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9
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Section 3.2 Election
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9
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Section 3.3 Qualification
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10
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Section 3.4 Tenure
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10
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Section 3.5 Removal
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10
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Section 3.6 Resignation
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10
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Section 3.7 Vacancies
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10
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Section 3.8
President
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10
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Section 3.9 Vice President(s)
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10
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Section 3.10 Treasurer and Assistant Treasurers
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10
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Section 3.11 Secretary and Assistant Secretaries
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11
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Section 3.12 Other Powers and Duties
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11
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i
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ARTICLE IV. Capital Stock
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11
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Section 4.1
Shares of Stock
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11
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Section 4.2 Transfers
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12
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Section 4.3 Record Holders
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12
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Section 4.4 Record Date
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12
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Section 4.5 Transfer Agent and Registrar for Shares of Corporation
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13
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Section 4.6 Loss of Certificates
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14
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Section 4.7 Restrictions on Transfer
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14
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Section 4.8 Multiple Classes of Stock
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14
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ARTICLE V. Distribution and Dividends
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14
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Section 5.1
Declaration of Distribution and Dividends
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14
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Section 5.2 Reserves
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14
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ARTICLE VI. Powers of Officers to Contract with the Corporation
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15
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ARTICLE VII. Indemnification
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15
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Section 7.1
Indemnification
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15
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Section 7.2 Determination Of Indemnification
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16
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Section 7.3 Right To Indemnification
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16
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Section 7.4 Advance Of Expenses
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16
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Section 7.5 Indemnification Not Exclusive
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16
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Section 7.6 Insurance
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17
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Section 7.7 Continuity
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17
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ARTICLE VIII. Miscellaneous Provisions
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17
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Section 8.1 Articles of Incorporation
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17
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Section 8.2 Fiscal Year
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17
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Section 8.3 Corporate Seal
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17
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Section 8.4 Execution of Instruments
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17
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Section 8.5 Voting of Securities
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17
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Section 8.6 Evidence of Authority
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17
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Section 8.7 Corporate Records
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18
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Section 8.8 Charitable Contributions
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18
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Section 8.9 Communications of Notices
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18
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Section 8.10 Electronic Transmissions
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18
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ARTICLE IX. Amendments
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18
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Section 9.1
Amendments by the Board of Directors
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18
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Section 9.2
Amendments by the Shareholders
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18
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ii
BYLAWS
OF
AMERICAN RAILCAR INDUSTRIES, INC.
ARTICLE I.
Shareholders
Section 1.1 Annual Meeting
.
(a) Unless directors are elected by written consent in lieu of an annual meeting of the
shareholders, the annual meeting of the shareholders of the corporation shall be held on such date
and at such time and place within or without the State of North Dakota as shall be fixed by the
Board of Directors, but in no event shall such annual meeting be held later than one hundred and
eighty (180) days following the end of the prior fiscal year of the corporation. The Board may,
in its sole discretion, determine that the annual meeting of shareholders shall not be held at any
place, but may instead be held solely by means of remote communication as authorized by the North
Dakota Business Corporation Act (the BCA). The meeting shall be held for the purpose of electing
directors and for the transaction of such other business as may properly be brought before the
meeting by the Board of Directors or the shareholders. If the day fixed for the annual meeting
shall fall on a legal holiday, the meeting shall be held on the next succeeding day not a legal
holiday. If the annual meeting is omitted on the day herein provided, a special meeting may be
held in place thereof, and any business transacted at such special meeting in lieu of the annual
meeting shall have the same effect as if transacted or held at the annual meeting.
(b) The committee of the Board of Directors that has authority to set the compensation of
executive officers of the corporation or, if no such committee, the entire Board of Directors (the
Compensation Committee) must report to the shareholders at each annual meeting on the
compensation of the corporations executive officers. The shareholders that are entitled to vote
for the election of directors of the corporation shall also be entitled to vote, on an advisory
basis, at each annual meeting on whether they accept the report of the Compensation Committee.
Section 1.2 Special Meetings
. Special meetings of the shareholders, for any purpose
or purposes, may be called by the Chairman of the Board, the President of the corporation, two or
more directors, or upon the demand of shareholders owning beneficially ten percent (10%) or more of
the voting power of all shares entitled to vote on each issue proposed to be considered at such
special meeting. Such request shall state the purpose or purposes of the proposed meeting. Special
meetings of the shareholders shall be held at such time, date and place within or without the State
of North Dakota as may be designated in the notice of such meeting, subject to the provisions of
the BCA and the North Dakota Publicly Traded Corporations Act (the PTCA and, collectively with
the BCA, the North Dakota Corporation Laws). The Board may, in its sole discretion, determine
that a special meeting of shareholders shall not be held at any place, but may instead be held
solely by means of remote communication as authorized by the BCA.
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Section 1.3 Notice of Meeting
.
(a) A written notice stating the place, if any, date, and hour of each meeting of the
shareholders, the means of remote communication, if any, by which shareholders and proxy holders
may be deemed present in person and vote at such meeting and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered to each shareholder
entitled to vote at such meeting, and to each shareholder who, under the Articles of Incorporation
or these Bylaws, is entitled to such notice, by delivering such notice to such person or leaving it
at their residence or usual place of business, or by mailing it, postage prepaid, and addressed to
such shareholder at his address as it appears upon the books of the corporation, or by giving
notice by electronic transmission as permitted by Section 8.10 of these Bylaws, at least ten (10)
days and not more than fifty (50) days before the meeting. Such notice and the effective date
thereof shall be determined as provided by the North Dakota Corporation Laws. Such notice shall be
given by the Secretary, an Assistant Secretary, or any other officer or person designated either by
the Secretary or by the person or persons calling the meeting.
The requirement of notice to any shareholder may be waived (i) by a written waiver of notice,
signed by the person entitled to notice, or a waiver by electronic transmission by the person
entitled to notice, whether executed or transmitted before, during or after the meeting by the
shareholder or his attorney thereunto duly authorized, and filed with the records of the meeting,
(ii) if communication with such shareholder is unlawful, (iii) by attendance at the meeting
without, subject to the provisions of the BCA, or (iv) as otherwise permitted by law. A waiver of
notice or electronic transmission of any regular or special meeting of the shareholders need not
specify the business to be transacted or the purposes of the meeting unless so required by the
Articles of Incorporation or these Bylaws.
If a meeting is adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place, if any, thereof, and the means of remote communications, if any, by
which shareholders and proxy holders may be deemed to be present in person and vote at such
adjourned meeting are announced at the meeting at which the adjournment is taken, except that, if
the adjournment is for more than one hundred twenty (120) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, then notice of the adjourned meeting shall be given
to each shareholder of record entitled to vote at the meeting. At the adjourned meeting, the
corporation may transact any business that might have been transacted at the original meeting.
Notwithstanding anything to the contrary herein, to be effective any adjournment must comply with
the provisions of the PTCA.
(b) In the case of an annual meeting of shareholders, the date of such meeting shall, in
accordance with the provisions of the PTCA, be announced by the corporation in the body of a public
filing with the Securities and Exchange Commission (the SEC) pursuant to Section 13, 14 of 15(d)
of the Securities Exchange Act of 1934 (the Exchange Act) (such announcement, the Public Notice
of Meeting) for a shareholder to be required to provide advance notice of an intention to propose
business at such annual meeting.
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Section 1.4 Quorum
. The holders of a majority of the voting power of the shares
entitled to vote on the item of business, or in the case of a class or series entitled to vote as a
separate group, a majority of the voting power of the outstanding shares of the class or series,
represented in person or by proxy, shall constitute a quorum for the transaction of business at any
meeting of the shareholders. Subject to the provisions of Section 1.3 of these Bylaws, any meeting
may be adjourned from time to time by a majority of the votes properly cast upon the question,
whether or not a quorum is present.
Section 1.5 Voting and Proxies
. Shareholders shall have one vote for each share of
stock entitled to vote owned by them of record according to the books of the corporation, unless
otherwise provided by law or by the Articles of Incorporation. Shareholders may vote either in
person or by written proxy, but no proxy shall be voted or acted upon after three years from its
date, unless the proxy provides for a longer period. Proxies shall be filed with the secretary of
the meeting, or of any adjournment thereof. Except as otherwise limited therein or by the terms of
the North Dakota Corporation Laws, proxies shall entitle the persons authorized thereby to vote at
any adjournment of such meeting. A proxy purporting to be executed by or on behalf of a
shareholder shall be deemed valid unless challenged at or prior to its exercise and the burden of
proving invalidity shall rest on the challenger. A proxy with respect to stock held in the name of
two or more persons shall be valid if executed by one of them unless at or prior to exercise of the
proxy the corporation receives a specific written notice to the contrary from any one of them.
Section 1.6 Action at Meeting
. When a quorum is present at any meeting, a majority
of the votes properly cast upon any question, including without limitation for the election of a
director(s), shall decide such question, except where a larger vote is required by law, or the
Articles of Incorporation or these Bylaws to the extent not otherwise prohibited by the North
Dakota Corporation Laws. Shareholders shall not have any rights to vote cumulatively. No ballot
shall be required for any election unless requested by a shareholder present or represented at the
meeting and entitled to vote in the election. The shareholders present at a duly organized meeting
may continue to transact business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum.
Section 1.7 Action Without Meeting
. Any action required or permitted to be taken at
any meeting of the shareholders may be taken without a meeting without prior notice and without a
vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by
the shareholders who own voting power equal to the voting power that would be required to take such
action at a meeting of the shareholders at which all shareholders were present and copies are
delivered to the corporation and its shareholders in the manner prescribed by law.
Section 1.8 Voting of Shares of Certain Holders
. Shares of stock of the corporation
standing in the name of another corporation, domestic or foreign, may be voted by such officer,
agent, or proxy as the bylaws of such corporation may prescribe, or, in the absence of such
provision, as the Board of Directors of such corporation may determine.
Shares of stock of the corporation standing in the name of a deceased person, a minor ward or
an incompetent person may be voted by his administrator, executor, court-appointed guardian or
conservator without a transfer of such shares into the name of such administrator,
executor, court appointed guardian or conservator. Shares of capital stock of the corporation
standing in the name of a trustee or fiduciary may be voted by such trustee or fiduciary.
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Shares of stock of the corporation standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be voted by such receiver
without the transfer thereof into his name if authority to do so is contained in an appropriate
order of the court by which such receiver was appointed.
A shareholder whose shares are pledged shall be entitled to vote such shares unless in the
transfer by the pledgor on the books of the corporation he expressly empowered the pledgee to vote
thereon, in which case only the pledgee or its proxy shall be entitled to vote the shares so
transferred.
Shares of its own stock belonging to this corporation shall not be voted, directly or
indirectly, at any meeting and shall not be counted in determining the total number of outstanding
shares at any given time, but shares of its own stock held by the corporation in a fiduciary
capacity may be voted and shall be counted in determining the total number of outstanding shares.
Section 1.9 Shareholder Lists
. After a record date for notice of and voting at a
meeting has been fixed, the Secretary (or the corporations transfer agent or other person
authorized by these Bylaws or by law) shall prepare and make available, beginning two (2) business
days after notice is given of a shareholder meeting, a complete list of the shareholders entitled
to notice and to vote at the meeting, arranged in alphabetical order and showing the address of
each shareholder and the number of shares each shareholder is entitled to vote at the meeting. The
corporation shall not be required to include electronic mail addresses or other electronic contact
information on such list. Such list shall be open to the examination of any shareholder with
voting rights as well as such shareholders agent or attorney, for any purpose germane to the
meeting for the period beginning two (2) business days after notice is given of a shareholder
meeting and continuing through the meeting (i) on a reasonably accessible electronic network,
provided that the information required to gain access to such list is provided with the notice of
the meeting or (ii) during ordinary business hours at the corporations principal executive office.
In the event that the corporation determines to make the list available on an electronic network,
the corporation may take reasonable steps to ensure that such information is available only to
shareholders of the Corporation (or their agents or attorneys). If the meeting is to be held at a
place, then the list shall be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any shareholder (or his agents or attorneys) who is
present. If the meeting is to be held solely by means of remote communication, then the list shall
also be open to the examination of any shareholder (or his agents or attorneys) during the whole
time of the meeting on a reasonably accessible network, and the information required to access such
list shall be provided with the notice of the meeting.
Section 1.10 Conduct of Meetings
. The Chairman of the Board, who may not also serve
as an executive officer of the corporation, or, in his absence, the Vice Chairman of the Board, if
any, who may not also serve as an executive officer of the corporation, or the President or other
officer designated by the Chairman, shall preside at all regular or special meetings of
shareholders. Subject to the North Dakota Corporation Laws, such presiding person shall have
the power to set procedural rules, including but not limited to rules respecting the time allotted
to shareholders to speak, governing all aspects of the conduct of such meetings.
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Section 1.11 Notice of Shareholder Business at Annual Meeting
.
(a) At an annual meeting of the shareholders, only such business shall be conducted as shall
have been brought before the meeting (i) pursuant to the corporations notice of meeting, (ii) by
or at the direction of a majority of the members of the Board of Directors, or (iii) by any
shareholder of the corporation who is a shareholder of record at the time of giving of notice
provided for in paragraph (b) of this Section 1.11, who shall be entitled to vote at such meeting,
and who complies with the notice procedures set forth in paragraph (b) of this Section 1.11.
(b) For business to be properly brought before an annual meeting by a shareholder, including,
without limitation, the nomination of a person or persons for election to the Board of Directors,
pursuant to clause (iii) of paragraph (a) of this Section 1.11, the shareholder must have given
timely notice thereof in writing to the Secretary of the corporation at the corporations principal
place of business. To be timely, a shareholders notice must be delivered to or mailed and
received at the principal executive offices of the corporation (A) no later than the later of
ninety (90) days prior to the first anniversary of the preceding years annual meeting or
twenty-five (25) days after the date of the Public Notice of Meeting, and (B) no earlier than one
hundred twenty (120) days prior to the first anniversary of the preceding years annual meeting;
provided, however, that in the event that the date of the meeting is changed by more than five
(5) days from such anniversary date, notice by the shareholder to be timely must be received no
later than the later of ninety (90) days prior to the meeting or twenty-five (25) days after the
date of the Public Notice of Meeting.
(c) A shareholders notice to the Secretary with respect to business to be brought at an
annual meeting shall set forth (1) the name of the shareholder or beneficial owner, (2) a statement
that the shareholder or beneficial owner is the beneficial owner of one or more shares in the
corporation and reasonable evidence of that ownership, and (3) the general nature of the business
to be proposed.
(d) If the business to be submitted by a shareholder is the nomination of a person or persons
for election to the Board of Directors then such shareholders notice must set forth, in addition
to items (1) and (2) in the previous paragraph, the number of candidates that the shareholder or
beneficial owner intends to nominate.
(e) If a qualified shareholder, as defined in paragraph 8 of Section 10-35-02 of the PTCA or
any successor provision thereto, provides notice of an intention to nominate one or more candidates
for election to the Board of Directors that satisfies paragraphs (b), (c) and (d) of this Section,
as applicable, and also includes: (i) the name of the person or the names of the members of the
group comprising such qualified shareholder; (ii) a statement that the person or group satisfies
the definition of a qualified shareholder under the PTCA and reasonable evidence of the required
ownership of shares by the person or group; (iii) a statement that the person or group does not
have knowledge that the candidacy or, if elected, board membership of any of its
nominees would violate controlling state or federal law or rules other than rules regarding
director independence of a national securities exchange or national securities association
applicable to the corporation; (iv) the information regarding each nominee that is required to be
included in the corporations proxy statement by the rules and regulations adopted by the SEC under
the Exchange Act; (v) a statement from each nominee that the nominee consents to be named in the
corporations proxy statement and form of proxy and, if elected, to serve on the Board of Directors
of the corporation, for inclusion in the corporations proxy statement; and (vi) if desired, a
statement not longer than five hundred (500) words (without counting the information required in
(i)-(v) above) supplied by the qualified shareholder in support of each nominee (the Supporting
Statement), the corporation shall include the name of each nominee and the Supporting Statement,
if any, in the corporations proxy statement and shall make provision for shareholders to vote on
each such nominee on the form of proxy solicited on behalf of the corporation.
5
(f) Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted
at an annual meeting except in accordance with the procedures set forth in this Section 1.11. 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 and in accordance with the
procedures prescribed by these Bylaws 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,
subject to the North Dakota Corporation Laws. Notwithstanding the foregoing provisions of this
Section 1.11, shareholders shall also comply with all applicable requirements of the Exchange Act
and the rules and regulations promulgated thereunder with respect to matters set forth in this
Section 1.11. Whether or not the procedures in these Bylaws are followed, no matter that is not a
proper matter for shareholder consideration shall be brought before the meeting. Nothing in this
Section 1.11 shall be deemed to affect any rights of shareholders to request inclusion of proposals
or nominations in the corporations proxy statement pursuant to the applicable rules and
regulations promulgated under the Exchange Act.
ARTICLE II.
Board of Directors
Section 2.1 Powers
. Except as reserved to the shareholders by law, by the Articles
of Incorporation or by these Bylaws, the business of the corporation shall be managed under the
direction of the Board of Directors, who shall have and may exercise all of the powers of the
corporation. In particular, and without limiting the foregoing, the Board of Directors shall have
the power, subject to the PTCA, to issue or reserve for issuance from time to time the whole or any
part of the capital stock of the corporation that may be authorized from time to time to such
person, for such consideration and upon such terms and conditions as they shall determine,
including the granting of options, warrants or conversion or other rights to stock.
Section 2.2 Number of Directors; Qualifications
. The Board of Directors shall
consist of such number of directors (which shall not be less than three or less than the number of
shareholders, if less than three) as shall be fixed initially by the incorporator(s) and thereafter
by the Board of Directors from time to time. No director need be a shareholder.
Section 2.3 Election of Directors
.
(a) The initial Board of Directors shall be designated in the Articles of Incorporation, or if
not so designated, elected by the incorporator(s) at the first meeting thereof. Thereafter,
directors shall be elected by the shareholders at their annual meeting or at any special meeting
the notice of which specifies the election of directors as an item of business for such meeting.
6
(b) In any election of directors, each share entitled to vote on the election of directors
shall be entitled to vote for or against, or to abstain with respect to, each candidate for
election. To be elected, a candidate must receive the affirmative vote of at least a majority of
the votes cast for or against the candidates election.
(c) The shareholders of the corporation may act by written consent to elect directors, but the
consent will be in lieu of the annual meeting of the shareholders only if (i) the election by
consent takes effect within the one hundred twenty (120) day period before the anniversary date of
the most recent annual meeting; and (ii) the full Board of Directors is elected by the consent.
(d) The Board of Directors shall appoint a Chairman of the Board who shall preside at meetings
of the Board of Directors and shall perform such duties and possess such powers as are assigned to
him by the Board of Directors. The Chairman of the Board may not serve as an executive officer of
the corporation.
Section 2.4 Vacancies
. In the case of any vacancy in the Board of Directors from
death, resignation, removal, disqualification or other cause, including a vacancy resulting from
enlargement of the Board, the election of a director to fill such vacancy shall be by vote of a
majority of the directors then in office, whether or not constituting a quorum, or by the
shareholders. The director thus elected shall hold office until the election of his successor.
Notwithstanding the foregoing, an individual who is not elected under Section 2.3(b) of these
Bylaws may not be appointed by the Board of Directors to fill a vacancy on the Board of Directors
at any time thereafter, unless the individual is subsequently elected as a director by the
shareholders.
Section 2.5 Change in Size of the Board
. The number of the Board of Directors may be
changed by vote of a majority of the directors then in office, except that the number of directors
shall not be changed at a time when (i) the Board of Directors has notice that there will be a
contested election of directors at the next regular or special meeting of shareholders; or (ii) the
shareholders do not have the right to nominate candidates for election at the next regular meeting
of the shareholders under Section 1.11 above.
Section 2.6 Tenure and Resignation
. Except as otherwise provided by law, by the
Articles of Incorporation or by these Bylaws, directors shall hold office until the earlier of one
year or the next annual meeting of shareholders, and thereafter until their successors are chosen
and qualified. Any director may resign by delivering or mailing postage prepaid a written
resignation to the corporation at its principal office or to the Chairman of the Board, if any, the
President, Secretary or Assistant Secretary, if any. Such resignation shall be effective upon
receipt unless it is specified to be effective at some other time or upon the happening of
some other event.
Section 2.7 Removal
. All or any number of the directors may be removed, with or
without cause, at a meeting expressly called for that purpose by a vote of the holders of the
majority of the shares then entitled to vote at an election of directors or, in accordance with the
North Dakota Corporation Laws, by a majority of the remaining directors.
7
Section 2.8 Meetings
. Regular meetings of the Board of Directors may be held without
call or notice at such times and such places within or without the State of North Dakota as the
Board may, from time to time, determine, provided that notice of the first regular meeting
following any such determination shall be given to directors absent from such determination. A
regular meeting of the Board of Directors shall be held without notice immediately after, and at
the same place as, the annual meeting of the shareholders or the special meeting of the
shareholders held in place of such annual meeting, unless a quorum of the directors is not then
present. Special meetings of the Board of Directors may be held at any time and at any place
designated in the call of the meeting when called by the Chairman of the Board, the Vice Chairman
of the Board, if any, the President, or a majority of the directors. Members of the Board of
Directors or any committee elected thereby may participate in a meeting of such Board or 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 at the same time, and participation by
such means shall constitute presence in person at the meeting.
Section 2.9 Notice of Meeting
. It shall be sufficient notice to a director to send
or give notice (i) by mail at least seventy-two (72) hours before the meeting addressed to such
person at his usual or last known business or residence address or (ii) in person, by telephone,
facsimile or electronic transmission to the extent provided in Section 2.10 of these Bylaws, at
least twenty-four (24) hours before the meeting. Notice shall be given by or upon the direction of
the Secretary, or in his absence or unavailability, may be given by or upon the direction of any
Assistant Secretary, if any, or by the officer or directors calling the meeting. The requirement
of notice to any director may be waived by a written waiver of notice signed by the person entitled
to notice or a waiver by electronic transmission by the person entitled to notice, executed or
transmitted by such person before or after the meeting or meetings, and filed with the records of
the meeting, or by attendance at the meeting without protesting prior thereto or at its
commencement the lack of notice. A notice or waiver of notice or any waiver of electronic
transmission of a directors meeting need not specify the purposes of the meeting.
Section 2.10 Agenda
. Any lawful business may be transacted at a meeting of the Board
of Directors, notwithstanding the fact that the nature of the business may not have been specified
in the notice or waiver of notice of the meeting.
Section 2.11 Quorum
. At any meeting of the Board of Directors, a majority of the
directors then in office shall constitute a quorum for the transaction of business. Any meeting
may be adjourned by a majority of the votes cast upon the question, whether or not a quorum is
present, and the meeting may be held as adjourned without further notice.
Section 2.12 Action at Meeting
. Any motion adopted by vote of the majority of the
directors present at a meeting at which a quorum is present shall be the act of the Board of
Directors, except where a different vote is required by law or by the Articles of Incorporation or
these Bylaws. The assent in writing of any director to any vote or action of the directors taken
at any meeting, whether or not a quorum was present and whether or not the director had or waived
notice of the meeting, shall have the same effect as if the director so assenting was present at
such meeting and voted in favor of such vote or action.
8
Section 2.13 Action Without Meeting
. Any action required or permitted to be taken at
any meeting of the Board, or any committee thereof, may be taken without a meeting if all of the
members of the Board or committee, as the case may be, consent to the action in writing or by
electronic transmission and the writing(s) or electronic transmission(s) are filed with the minutes
of proceedings of the Board or committee. Such filing shall be in paper form if the minutes are in
paper form and shall be in electronic form if the minutes are maintained in electronic form. Such
consent shall be treated for all purposes as a vote of the Board or committee, as the case may be,
at a meeting.
Section 2.14 Compensation
. By resolution of the Board of Directors, each director may
either be reimbursed for his expenses, if any, for attending each meeting of the Board of
Directors or may be paid a fixed fee for attending each meeting of the Board of Directors,
or both. No such payment shall preclude any director from serving the corporation in any
other capacity and receiving compensation therefor.
Section 2.15 Committees
. The Board of Directors may, by the affirmative vote of a majority
of the directors then in office, appoint an executive committee or other committees
consisting of one or more directors and may by vote delegate to any such committee some or
all of their powers except those which by law, the Articles of Incorporation or these
Bylaws they may not delegate. In the absence or disqualification of a member of a
committee, the members of the committee present and not disqualified, whether or not they
constitute a quorum, may by unanimous vote appoint another member of the Board of Directors
to act at the meeting in place of the absent or disqualified member. A committee may create
one or more subcommittees, each subcommittee to consist of one or more members of the
committee, and delegate to such subcommittee any or all of the powers of the committee.
Unless the Board of Directors shall otherwise provide, any such committee may make rules
for the conduct of its business, but unless otherwise provided by the Board of Directors or
such rules, its meetings shall be called, notice given or waived, its business conducted or
its action taken as nearly as may be in the same manner as is provided in these Bylaws with
respect to meetings or for the conduct of business or the taking of actions by the Board of
Directors. The Board of Directors shall have power at any time to fill vacancies in,
change the membership of, or discharge any such committee at any time. The Board of
Directors shall have power to rescind any action of any committee, but no such rescission
shall have retroactive effect.
ARTICLE III.
Officers
Section 3.1 Enumeration
. The officers shall consist of a President, a Treasurer, a
Secretary and such other officers and agents (including one or more Vice Presidents, Assistant
Treasurers and Assistant Secretaries), as the Board of Directors may, in their discretion,
determine.
Section 3.2 Election
. The President, Treasurer and Secretary shall be elected
annually by the directors at their first meeting following the annual meeting of the shareholders
or any special meeting held in lieu of the annual meeting. Other officers may be chosen by the
directors at such meeting or at any other meeting.
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Section 3.3 Qualification
. An officer may, but need not, be a director or
shareholder. Any two or more offices may be held by the same person. Notwithstanding the foregoing,
the Chairman of the Board may not serve as an executive officer of the corporation. Any officer may
be required by the directors to give bond for the faithful performance of his duties to the
corporation in such amount and with such sureties as the directors may determine. The premiums for
such bonds may be paid by the corporation.
Section 3.4 Tenure
. Except as otherwise provided by the Articles of Incorporation or
these Bylaws, the term of office of each officer shall be for one year or until his successor is
elected and qualified or until his earlier resignation or removal.
Section 3.5 Removal
. Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board of Directors whenever in its judgment the best interests of
the corporation would be served thereby, but such removal shall be without prejudice to the
contract rights, if any, of the person so removed. Election or appointment of an officer or agent
shall not of itself create contract rights.
Section 3.6 Resignation
. Any officer may resign by delivering or mailing postage
prepaid a written resignation to the corporation at its principal office or to the President,
Secretary or Assistant Secretary, if any, and such resignation shall be effective upon receipt
unless it is specified to be effective at some other time or upon the happening of some event, but
such resignation shall be without prejudice to the contract rights, if any, of the corporation.
Section 3.7 Vacancies
. A vacancy in any office arising from any cause may be filled
for the unexpired portion of the term by the Board of Directors.
Section 3.8 President
. The President shall have general charge and control of the
affairs of the corporation subject to the direction of the Board of Directors; sign all
certificates of stock of the corporation; perform all duties required by the Bylaws of the
corporation, and as may be assigned from time to time by the Board of Directors; and shall make
such reports to the Board of
Directors and shareholders as may be required. In addition, if no Chairman of the Board is
elected by the Board or if the Chairman and Vice Chairman, if any, are unavailable, the President
shall perform all the duties required of such officers by these Bylaws.
Section 3.9 Vice President(s)
. The Vice President(s), if any, shall have such powers
and perform such duties as the Board of Directors may from time to time determine. In the event
there is more than one Vice President, the Board of Directors may designate one or more of the Vice
Presidents as Executive Vice Presidents, who shall perform such duties as shall be assigned by the
Board of Directors.
Section 3.10 Treasurer and Assistant Treasurers
. The Treasurer, subject to the
direction and under the supervision and control of the Board of Directors, shall have general
charge of the financial affairs of the corporation. The Treasurer shall have custody of all funds,
securities and valuable papers of the corporation, except as the Board of Directors may otherwise
provide. The Treasurer shall keep or cause to be kept full and accurate records of account that
shall be the property of the corporation, and which shall be always open to the inspection of each
elected officer and director of the corporation. The Treasurer shall deposit or cause to be
deposited all funds of the corporation in such depository or depositories as may be authorized by
the Board of Directors. The Treasurer shall have the power to endorse for deposit or collection
all notes, checks, drafts, and other negotiable instruments payable to the corporation. The
Treasurer shall perform such other duties as are incidental to the office, and such other duties as
may be assigned by the Board of Directors. Assistant Treasurers, if any, shall have such powers
and perform such duties as the Board of Directors may from time to time determine.
10
Section 3.11 Secretary and Assistant Secretaries
. The Secretary shall record, or
cause to be recorded, all proceedings of the meetings of the shareholders and directors (including
committees thereof) in the book of records of this corporation. The record books shall be open at
reasonable times to the inspection of any shareholder, director, or officer. The secretary shall
notify the shareholders and directors, when required by law or by these Bylaws, of their respective
meetings, sign all certificates of stock of the corporation, make such reports to the Board of
Directors and shareholders as may be required and shall perform such other duties as the directors
and shareholders may from time to time prescribe. The Secretary shall have the custody and charge
of the corporate seal, if any, and shall affix the seal of the corporation to all instruments
requiring such seal, and shall certify under the corporate seal the proceedings of the directors
and of the shareholders, when required. In the absence of the Secretary at any such meeting, a
temporary secretary shall be chosen who shall record the proceedings of the meeting in the
aforesaid books. Assistant Secretaries, if any, shall have such powers and perform such duties as
the Board of Directors may from time to time designate.
Section 3.12 Other Powers and Duties
. Subject to these Bylaws and to such
limitations as the Board of Directors may from time to time prescribe, the officers of the
corporation shall each have such powers and duties as generally pertain to their respective
offices, as well as such powers and duties as from time to time may be conferred by the Board of
Directors.
ARTICLE IV.
Capital Stock
Section 4.1 Shares of Stock
. The shares of stock of the corporation shall be
evidenced by an entry in the stock transfer books of the corporation and shall be represented by a
stock certificate, unless and until the Board of Directors of the corporation adopts a resolution
permitting shares to be uncertificated. Notwithstanding the adoption of any such resolution
providing for uncertificated shares, every holder of shares theretofore represented by certificates
and, upon request, every holder of uncertificated shares, shall be entitled to have a certificate
representing the number of shares of the capital stock of the corporation owned by such holder in
such form as shall, in conformity to law, be prescribed from time to time by the Board of
Directors. Certificates shall be consecutively numbered by class, shall be signed by the President
or one of the Vice Presidents, and the Secretary or an Assistant Secretary or such other officers
designated by the Board of Directors from time to time as permitted by law, shall bear the seal of
the corporation, if any, and shall express on its face its number, date of issue, class, the number
of shares for which, and the name of the holder to whom, it is issued. The corporate seal and any
or all of the signatures of corporation officers may be facsimile if the stock certificate is
manually counter-signed by an authorized person on behalf of a transfer agent or registrar other
than the corporation or its employee. If an officer, transfer agent or registrar who has signed,
or whose facsimile signature has been placed on, a certificate shall have ceased to be such before
the 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 time of its issue.
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Section 4.2
Transfers
. Stock of the corporation shall be transferable in the manner
prescribed by applicable law and in these Bylaws. Transfers of stock shall be made on the books of
the corporation, and in the case of certificated shares of stock, only by the person named in the
certificate or by such persons attorney lawfully constituted in writing and upon the surrender of
the certificate therefor, properly endorsed for transfer and payment of all necessary transfer
taxes; or, in the case of uncertificated shares of stock, upon receipt of proper transfer
instructions from the registered holder of the shares of by such persons attorney lawfully
constituted in writing, and upon payment of all necessary transfer taxes and compliance with
appropriate procedures for transferring shares in uncertificated form; provided, however, that such
surrender and endorsement, compliance or payment of taxes shall not be required in any case in
which the officers of the corporation shall determine to waive such requirement. With respect to
certificated shares of stock, every certificate exchanged, returned or surrendered to the
corporation shall be marked Canceled, with the date of cancellation, by the Secretary or an
Assistant Secretary of the corporation or the transfer agent thereof. No transfer of stock shall
be valid as against the corporation for any purpose until it shall have been entered in the stock
records of the corporation by an entry showing from and to whom transferred.
Section 4.3 Record Holders
. Except as otherwise may be required by law, by the
Articles of Incorporation or by these Bylaws, the corporation shall be entitled to treat the record
holder of stock as shown on its books as the owner of such stock for all purposes, including the
payment of dividends and the right to vote with respect thereto, regardless of any transfer, pledge
or other disposition of such stock, until the shares have been transferred on the books of the
corporation in accordance with the requirements of these Bylaws. It shall be the duty of each
shareholder to notify the corporation of his post office address.
Section 4.4 Record Date
. In order that the corporation may determine the
shareholders entitled to: (a) notice of or to vote at any meeting of shareholders or any
adjournments thereof, (b) express consent to corporate action in writing without a meeting, (c)
receive payment of any dividend or other distribution or allotment of any rights, or (d) 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 a record date, which date shall not precede the
date on which the resolution fixing the record date is adopted by the Board of Directors and which
record date: (i) in the case of determination of shareholders entitled to vote at any meeting of
the shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than
fifty (50) nor less than ten (10) days before the date of such meeting; (ii) in the case of
determination of shareholders entitled to express consent to corporate action in writing without a
meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the
record date is adopted by the Board; and (iii) in the case of any other action, shall not be more
than fifty (50) days prior to such other action.
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If no record date is fixed:
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the record date for determining shareholders entitled to receive notice of or
to vote at a meeting of shareholders shall be at the close of business on the day
next preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is held;
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the record date for determining shareholders entitled to express consent to
corporate action in writing without a meeting, when no prior action by the Board
of Directors is required by law, shall be the day on which the first written
consent setting forth the action taken or proposed to be taken is delivered to the
corporation in accordance with applicable law, or, if prior action by the Board is
required by law shall be at the close of business on the day on which the Board
adopts the resolution taking such prior action; and
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the record date for determining shareholders for any other purpose shall be at
the close of business on the day on which the Board of Directors adopts the
resolution relating thereto.
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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 may
fix a new record date for the adjourned meeting.
Section 4.5 Transfer Agent and Registrar for Shares of Corporation
. The Board of
Directors may appoint a transfer agent or registrar or both and may require all certificates of
stock to bear the signature of either or both. Any transfer agent so appointed shall maintain,
among other records, a shareholders ledger, setting forth the names and addresses of the holders
of all issued shares of stock of the corporation, the number of shares held by each and, in the
case of certificated shares of stock, the certificate numbers and the date of issue of any
certificates representing such shares. Any registrar so appointed shall maintain, among other
records, a share register, setting forth the total number of shares of each class of shares that
the corporation is
authorized to issue and the total number of shares actually issued. The shareholders ledger
and the share register are hereby identified as the stock transfer books of the corporation; but as
between the shareholders ledger and the share register, the names and addresses of shareholders,
as they appear on the shareholders ledger maintained by the transfer agent shall be the official
list of shareholders of record of the corporation. The name and address of each shareholder of
record, as they appear upon the shareholders ledger, shall be conclusive evidence of who are the
shareholders entitled to receive notice of the meetings of shareholders, to vote at such meetings,
to examine a complete list of the shareholders entitled to vote at meetings, and to own, enjoy and
exercise any other property or rights deriving from such shares against the corporation.
Shareholders, but not the corporation, its directors, officers, agents or attorneys, shall be
responsible for notifying the transfer agent, in writing, of any changes in their names or
addresses from time to time, and failure to do so will relieve the corporation, its other
shareholders, directors, officers, agents and attorneys, and its transfer agent and registrar, of
liability for failure to direct notices or other documents, or pay over or transfer dividends or
other property or rights, to a name or address other than the name and address appearing in the
shareholders ledger maintained by the transfer agent.
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Section 4.6 Loss of Certificates
. In case of the loss, destruction or mutilation of
a certificate of stock, a replacement certificate may be issued in place thereof upon such terms as
the Board of Directors may prescribe, including, in the discretion of the Board of Directors, a
requirement of bond and indemnity to the corporation.
Section 4.7 Restrictions on Transfer
. Any certificate representing shares of stock
that are subject to any restriction on transfer, whether pursuant to law, the Articles of
Incorporation, these Bylaws or any agreement to which the corporation is a party, shall have the
fact of the restriction noted conspicuously on the certificate and shall also set forth on the face
or back of such certificate either the full text of the restriction or a statement that the
corporation will furnish a copy of the full text of the restriction to the holder of such
certificate upon written request and without charge.
Section 4.8 Multiple Classes of Stock
. The amount and classes of the capital stock
and the par value, if any, of the shares of the corporation shall be as fixed in the Articles of
Incorporation. At all times when there are two or more classes of stock, the several classes of
stock shall conform to the description and the terms and have the respective preferences, voting
powers, restrictions and qualifications set forth in the Articles of Incorporation and these
Bylaws. Any certificate issued when the corporation is authorized to issue more than one class or
series of stock shall set forth on its face or back either (i) the full text of the preferences,
voting powers, qualifications and special and relative rights of the shares of each class and
series authorized to be issued, or (ii) a statement of the existence of such preferences, powers,
qualifications and rights and a statement that the corporation will furnish a copy thereof to the
holder of such certificate upon written request and without charge.
ARTICLE V.
Distributions and Dividends
Section 5.1 Declaration of Distributions and Dividends
. Except as otherwise required
by law or by the Articles of Incorporation, the Board of Directors may, in its discretion, subject
to and in accordance with the North Dakota Corporation Laws, declare what, if any, distributions or
dividends shall be paid or issued. Distributions may be paid in cash or other property and
dividends may be issued in shares of the corporations stock, provided that the Board of Directors
may pay and issue distributions and dividends in any combination thereof. Distributions and
dividends shall be payable and/or issuable upon such dates as the Board of Directors may designate.
The Board of Directors may authorize a distribution only if it determines that the corporation
will be able to pay its debts in the ordinary course of business after making the distribution and
the Board of Directors does not know before the distribution is made that the determination was or
has become erroneous.
Section 5.2 Reserves
. Before the payment of any distribution and before making any
distribution of profits, the Board of Directors, from time to time and in its absolute discretion,
subject to and in accordance with the North Dakota Corporation Laws, shall have power to set aside
out of the surplus or net profits of the corporation such sum or sums as the Board of Directors
deems proper and sufficient as a reserve fund to meet contingencies or for such other purpose as
the Board of Directors shall deem to be in the best interests of the corporation, and the Board of
Directors may modify or abolish any such reserve.
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ARTICLE VI.
Powers of Officers to Contract
with the Corporation
Any and all of the directors and officers of the corporation, notwithstanding their official
relations to it, may enter into and perform any contract or agreement of any nature between the
corporation and themselves, or any and all of the individuals from time to time constituting the
Board of Directors of the corporation, or any firm or corporation in which any such director may be
interested, directly or indirectly, whether such individual, firm or corporation thus contracting
with the corporation shall thereby derive personal or corporate profits or benefits or otherwise;
provided, that (i) the material facts of the contract or agreement and as to such persons interest
are fully disclosed or are known to the Board of Directors or a committee thereof and the Board of
Directors or committee in good faith authorizes, approves or ratifies the contract or transaction
in good faith by a majority of the disinterested directors on the Board of Directors or such
committee; (ii) if the material facts of the contract or agreement and as to such persons interest
are fully disclosed or are known to all shareholders, whether or not entitled to vote thereon, and
the contract is approved in good faith by (A) a vote of the shareholders holding two-thirds of the
voting power of the shares entitled to vote, other than shares held by the interested director(s)
or (B) the unanimous affirmative vote of the holder of all outstanding shares, whether or not
entitled to vote; (iii) the contract or agreement, and the person asserting the validity of the
contract or agreement, is fair and reasonable as to the corporation as of the time it is
authorized, approved or ratified; or (iv) as otherwise provided by law. Any director of the
corporation who is interested in any transaction as aforesaid may not be counted in determining the
existence of a quorum at any meeting of the Board of Directors which shall authorize or ratify any
such transaction. This Article shall not be construed to invalidate any contract or other
transaction which would otherwise be valid under the common or statutory law applicable thereto.
ARTICLE VII.
Indemnification
Section 7.1 Indemnification
. The corporation shall indemnify to the fullest extent
authorized or permitted by applicable law any person (his heirs, executors and administrators) who
was or is a party or is threatened to be made a party to any threatened, pending or completed
civil, criminal, administrative, arbitration, or investigative proceeding, including without
limitation a proceeding by or in the right of the corporation, by reason of the fact that such
person is or was a director or officer of the corporation or, while serving as a director or
officer of the corporation, is or was serving at the request of the corporation as a director or
officer or in any other capacity for another corporation, partnership, joint venture, trust or
other enterprise, against all expenses (including attorneys fees), judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by such person in connection with such
proceeding if, with respect to the acts or omissions of the such person, such person (i) has not
been indemnified by another organization, (ii) acted in good faith, (iii) received no improper
personal benefit, (iv) with respect to any criminal proceeding, had no reasonable cause to believe
the conduct was unlawful, and (v) reasonably believed that the conduct was in the best interest of
the corporation (or if, at the corporations request, such person served for another organization,
reasonably believed that the conduct was not opposed to the best interest of the corporation). The
termination of any proceeding by judgment, order, settlement or conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person did not
satisfy the criteria of the preceding sentence.
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The corporation may indemnify any person who is or was an employee or agent of the
corporation, or any person who is or was serving at the request of the corporation as an employee
or agent or in any other capacity of another corporation, partnership, joint venture, trust or
other enterprise, in the manner and to the extent that it shall indemnify any director or officer
under this Section 7.1.
Section 7.2 Determination Of Indemnification
. Any indemnification under Section 7.1
(unless ordered by a court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer, employee or agent is
proper in the circumstances because such person has met the applicable standard of conduct set
forth in Section 7.1. Such determination shall be made (i) by the Board of Directors by a majority
of a quorum, not counting any directors who are at the time parties to the proceeding for
determining either a majority or the presence of a quorum, (ii) if a quorum under clause (i) of
this Section 7.2 cannot be obtained, by a majority of a committee by a majority of a committee of
the Board of Directors, consisting solely of two or more directors not at the time parties to the
proceeding, duly designated to act in the matter by a majority of the full Board of Directors,
including directors who are parties, (iii) by special legal counsel, or (iv) as otherwise provided
by the North Dakota Corporation Laws.
Section 7.3 Right To Indemnification
. Notwithstanding the other provisions of this
Article VII, to the extent that a director or officer of the corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to in Section 7.1, or in
defense of any claim, issue or matter therein, such person shall be indemnified against expenses
(including attorneys fees) actually and reasonably incurred by such person in connection
therewith.
Section 7.4 Advance Of Expenses
. Expenses incurred in defending a civil or criminal
proceeding may be paid by the corporation on behalf of a director, officer, employee or agent in
advance of the final disposition of such action, suit or proceeding as authorized by the Board of
Directors in the specific case upon (i) receipt of written affirmation by the person of a
good-faith belief that the applicable criteria for indemnification have been satisfied and a
written undertaking by the person to repay all amounts so paid or reimbursed by the corporation, if
the ultimate determination is that the criteria for indemnification have not been satisfied, and
(ii) after a determination that the facts then known to those making the determination would not
preclude indemnification.
Section 7.5 Indemnification Not Exclusive
. The indemnification provided by this
Article VII shall not be deemed exclusive of any other rights to which any person seeking
indemnification may be entitled under any law, any agreement, the Articles of Incorporation, any
vote of shareholders or disinterested directors or otherwise, both as to action in such persons
official capacity and as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director, officer, employee or agent and shall inure
to the benefit of the heirs, executors and administrators of such a person.
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Section 7.6 Insurance
. The corporation may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any liability asserted
against such person and incurred by such person in any such capacity, or arising out of such
persons status as such, whether or not the corporation would have the power to indemnify such
person against liability under the provisions of this Article VII.
Section 7.7 Continuity
. The indemnification and advancement of expenses provided for
in this Article VII shall, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or agent of the corporation and shall
inure to the benefit of the heirs, executors and administrators of such a person.
ARTICLE VIII.
Miscellaneous Provisions
Section 8.1 Articles of Incorporation
. All references in these Bylaws to the
Articles of Incorporation shall be deemed to refer to the Articles of Incorporation of the
corporation, as amended and in effect from time to time.
Section 8.2 Fiscal Year
. Except as from time to time otherwise provided by the Board
of Directors, the fiscal year of the corporation shall end on December 31 of each year.
Section 8.3 Corporate Seal
. The Board of Directors shall have the power to adopt and
alter the seal of the corporation or to decide that there shall be no seal.
Section 8.4 Execution of Instruments
. All deeds, leases, transfers, contracts,
bonds, notes, and other obligations authorized to be executed by an officer of the corporation on
its behalf shall be signed by the Chairman of the Board of Directors, the Vice Chairman of the
Board of Directors, if any, the President, any Vice President, the Treasurer, or any Assistant
Treasurer, except as the Board of Directors may generally or in particular cases otherwise
determine.
Section 8.5 Voting of Securities
. Unless the Board of Directors otherwise provides,
the President or the Treasurer may waive notice of and act on behalf of this corporation, or
appoint another person or persons to act as proxy or attorney in fact for this corporation with or
without discretionary power and/or power of substitution, at any meeting of shareholders or
shareholders of any other corporation or organization, any of whose securities are held by this
corporation.
Section 8.6 Evidence of Authority
. A certificate by the Secretary or any Assistant
Secretary as to any action taken by the shareholders, directors or any officer or representative of
the corporation shall, as to all persons who rely thereon in good faith, be conclusive evidence of
such action. The exercise of any power which by law, by the Articles of Incorporation, or by these
Bylaws, or under any vote of the shareholders or the Board of Directors, may be exercised by an
officer of the corporation only in the event of absence of another officer or any other contingency
shall bind the corporation in favor of anyone relying thereon in good faith, whether or not such
absence or contingency existed.
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Section 8.7 Corporate Records
. The original, or attested copies, of the Articles of
Incorporation, these Bylaws, records of all meetings of the incorporators and shareholders, and the
stock transfer books shall be kept at an office of the corporation, or at an office of its transfer
agent or of the Secretary or of the Assistant Secretary, if any. Said copies and records need not
all be kept in the same office. They shall be available at all reasonable times to inspection of
any shareholder for any purpose but not to secure a list of shareholders for the purpose of selling
said list or copies thereof or for using the same for a purpose other than in the interest of the
applicant, as a shareholder, relative to the affairs of the corporation.
Section 8.8 Charitable Contributions
. The Board of Directors from time to time may
authorize contributions to be made by the corporation in such amounts as it may determine to be
reasonable to corporations, trusts, funds or foundations organized and operated exclusively for
charitable, scientific or educational purposes, no part of the net earning of which inures to the
private benefit of any shareholder or individual.
Section 8.9 Communications of Notices
. Any notice required to be given under these
Bylaws may be given by (i) delivery in person, (ii) mailing it, postage prepaid, first class, (iii)
mailing it by nationally or internationally recognized second day or faster courier service, or
(iv) electronic transmission, in each case, to the addressee; provided however that facsimile
transmission or electronic transmission may only be used if the addressee has consented to such
means.
Section 8.10 Electronic Transmissions
. Notwithstanding any reference in these Bylaws
to written instruments, all notices, meetings, proxies, consents and other communications
contemplated by these Bylaws may be conducted by means of an electronic transmission, to the
extent permitted by law, if specifically authorized by the Board of Directors of the corporation.
ARTICLE IX.
Amendments
Section 9.1 Amendments by the Board of Directors
. Subject to (i) the provisions of
the Articles of Incorporation of the corporation as in effect from time to time and (ii) the rights
of shareholders pursuant to Section 9.2 of these Bylaws to propose the adoption, amendment or
repeal and/or to adopt, amend, and repeal Bylaws made by the Board of Directors, the Board of
Directors may make, adopt, amend, and repeal from time to time these Bylaws and make from time to
time new Bylaws of the corporation.
Section 9.2 Amendments by the Shareholders
. Subject to the provisions of the
Articles of Incorporation of the corporation as in effect from time to time, the shareholders of
the corporation may, solely upon the affirmative vote of the holders of the majority of the shares
entitled to vote thereon (i) adopt, amend, or repeal Bylaws made by the Board of Directors or (ii)
make new Bylaws.
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