Attached files
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EX-12.1 - EXHIBIT 12.1 - NASH FINCH CO | c13527exv12w1.htm |
EX-21.1 - EXHIBIT 21.1 - NASH FINCH CO | c13527exv21w1.htm |
EX-10.31 - EXHIBIT 10.31 - NASH FINCH CO | c13527exv10w31.htm |
EX-31.1 - EXHIBIT 31.1 - NASH FINCH CO | c13527exv31w1.htm |
EX-23.2 - EXHIBIT 23.2 - NASH FINCH CO | c13527exv23w2.htm |
EX-23.1 - EXHIBIT 23.1 - NASH FINCH CO | c13527exv23w1.htm |
EX-24.1 - EXHIBIT 24.1 - NASH FINCH CO | c13527exv24w1.htm |
EX-32.1 - EXHIBIT 32.1 - NASH FINCH CO | c13527exv32w1.htm |
EX-31.2 - EXHIBIT 31.2 - NASH FINCH CO | c13527exv31w2.htm |
10-K - 10-K - NASH FINCH CO | c13527e10vk.htm |
Exhibit 3.10
NASH-FINCH COMPANY BYLAWS
(As Amended February 28, 2011)
(As Amended February 28, 2011)
ARTICLE I
STOCK
STOCK
1. Shares of the Companys stock may be certificated or uncertificated, as provided under
Delaware law. All certificates of stock of the Company shall be numbered in the order in which they
are issued, and shall be entered in the books of the Company as they are issued. Each certificate
shall exhibit the holders name and the number of shares and shall be signed by the Board Chair,
President or any corporate Vice President and by the Secretary or an Assistant Secretary. Any or
all of the signatures on a stock certificate may be facsimiles.
2. Transfer of shares of the Companys stock shall be made only on the books of the Company
and may be authorized only by the record holder of such shares, or his legal representative or duly
authorized attorney-in-fact, and, in the case of shares represented by a certificate, upon
surrender of the certificate for cancellation.
3. Stock of the Company which shall have been purchased by it and held in the treasury shall
be subject to disposal by the Board of Directors, but, while held by the Company, shall not be
voted, nor shall it participate in the dividends or profits of the Company; provided that such
stock may participate in any stock split in the form of a stock dividend.
ARTICLE II
STOCKHOLDERS AND STOCKHOLDERS MEETINGS
STOCKHOLDERS AND STOCKHOLDERS MEETINGS
1. The annual meeting of the stockholders of this Company for the election of directors and
the transaction of such other business as may properly be brought before such meeting shall be held
at such date, time and place, either within or outside the State of Delaware, as may be designated
by resolution of the Board of Directors from time to time and stated in the notice of the meeting.
The Board of Directors may postpone, reschedule or cancel any annual meeting of stockholders
previously scheduled by the Board of Directors.
2. The holders of a majority of the stock issued and outstanding, and entitled to vote
thereat, present in person, or represented by proxy, shall be requisite and shall constitute a
quorum at all meetings of the stockholders for the transaction of business except as otherwise
provided by law, by the certificate of incorporation or by these bylaws. If, however, such
majority shall not be present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereon, present in person or by proxy, shall have power to adjourn the meeting
from time to time without notice other than announcement at the meeting, until the requisite amount
of voting stock shall be present. At such adjourned meeting at which the requisite amount of voting
stock shall be represented any business may be transacted which might have been transacted at the
meeting as originally notified. If the adjournment is for more than 30 days, a notice of the
adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If
after the adjournment a new record date for determination of stockholders entitled to vote is fixed
for the adjourned meeting, the Board of Directors shall fix as the record date for determining
stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed
for determination of stockholders entitled to vote at the adjourned meeting, and shall give notice
of the adjourned meeting to each stockholder of record as of the record date so fixed for notice of
such adjourned meeting. Voting at meetings of stockholders need not be by written ballot.
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Except as otherwise provided by these Bylaws, each director shall be elected by the vote of a
majority of the votes cast with respect to that directors election at any meeting for the election
of directors at which a quorum is present, provided that if, as of the 10th day preceding the date
the Company first mails its notice of meeting for such meeting to the stockholders of the Company,
the number of nominees exceeds the number of directors to be elected (a Contested Election), the
directors shall be elected by a vote of a plurality of the votes cast. For purposes of this
Section 2, a majority of votes cast shall mean that the number of votes cast for a directors
election exceeds the number of votes cast against that directors elections (with abstentions
and broker nonvotes not counted as a vote cast either for or against that directors
election). All other elections and questions coming before a meeting at which a quorum is present
shall be decided by a majority vote of the stock issued and outstanding and entitled to vote
thereon, then present in person or represented by proxy, unless the question is one upon which by
express provision of the statutes or of the certificate of incorporation, a different vote is
required in which case such express provision shall govern and control the decision of such
question.
In order for any incumbent director to become a nominee of the Board of Directors for further
service on the Board of Directors, such person must submit an irrevocable resignation, contingent
on (i) that person not receiving a majority of the votes cast in an election that is not a
Contested Election, and (ii) acceptance of that resignation by the Board of Directors in accordance
with the policies and procedures adopted by the Board of Directors for such purpose. In the event
an incumbent director fails to receive a majority of the votes cast in an election that is not a
Contested Election, the corporate governance committee, or such other committee designated by the
Board of Directors pursuant to these Bylaws, shall make a recommendation to the Board of Directors
as to whether to accept or reject the resignation of such incumbent director, or whether other
action should be taken. The Board of Directors shall act on the resignation, taking into account
the committees recommendation, and publicly disclose (by a press release and filing an appropriate
disclosure with the Securities and Exchange Commission) its decision regarding the resignation and,
if such resignation is rejected, the rationale behind the decision within 90 days following
certification of the election results. The committee in making its recommendation and the Board of
Directors in making its decision each may consider any factors and other information that they
consider appropriate and relevant.
If the Board of Directors accepts a directors resignation pursuant to this Section 2, or if a
nominee for director is not elected and the nominee is not an incumbent director, then the Board of
Directors may fill the resulting vacancy pursuant to Article III, Section 2 of these Bylaws.
3. Unless otherwise provided by statute, the certificate of incorporation or these Bylaws, at
any meeting of the stockholders each stockholder shall be entitled to one vote in person or by
written proxy for each share of the capital stock having voting power held by such stockholder.
4. Unless otherwise provided by statute, the certificate of incorporation or these Bylaws,
notice of an annual meeting stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote thereat at such address as appears on the stock ledger of the Company
not less than 10 days nor more than 60 days before the date of meeting.
5. The officer who has charge of the stock ledger of the Company shall prepare and make, at
least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting (provided, however, if the record date for determining the stockholders
entitled to vote is less than 10 days before the date of the meeting, the list shall reflect the
stockholders entitled to vote as of the 10th day before the meeting date), arranged in alphabetical
order, and showing the address of each stockholder and the number of shares registered in the name
of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, at least 10 days prior to 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 meeting or (ii) during ordinary business hours at the principal place of
business of the Company. If the meeting is to be held at a place, then a list of stockholders
entitled to vote at the meeting shall be produced and kept at the time and place of the meeting
during the whole time thereof and may be examined by any stockholder 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 stockholder during the whole time of the meeting on a reasonably accessible
electronic network, and the information required to access such list shall be provided
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with the
notice of the meeting. Except as otherwise provided by law, the stock ledger shall be the only
evidence as to who are
the stockholders entitled to examine the list of stockholders required by this Article II,
Section 5 or to vote in person or by proxy at any meeting of stockholders.
6. At an annual meeting of stockholders, only such business (other than nominations for
election to the Board of Directors, which must comply with the provisions of Article III, Section
6) shall be conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors (or any duly authorized
committee thereof), (b) otherwise properly brought before the meeting by or at the direction of the
Board of Directors (or any duly authorized committee thereof), or (c) otherwise properly brought
before the meeting by any stockholder of the Company (i) who is a stockholder of record on the date
of the giving of the notice provided for in this Article II, Section 6 and on the record date for
the determination of stockholders entitled to notice of and to vote at such annual meeting and (ii)
who complies with the notice procedures set forth in this Article II, Section 6.
In addition to any other applicable requirements, for business to be properly brought before an
annual meeting by a stockholder (other than nominations for election to the Board of Directors,
which must comply with the provisions of Article III, Section 6), the stockholder must have given
timely notice in proper written form to the Secretary of the Company and any such proposed business
must constitute a proper matter for stockholder action. In no event shall the public announcement
of an adjournment or postponement of an annual meeting commence a new time period (or extend any
time period) for the giving of stockholders notice as described above.
To be timely, a stockholders notice to the Secretary must be delivered to or be mailed and
received at the principal executive offices of the Company not less than 60 days nor more than 90
days prior to the anniversary date of the immediately preceding annual meeting of stockholders;
provided, however, that in the event that the date of the meeting is called for a date that is not
within 25 days before or after such anniversary date, notice by the stockholder in order to be
timely must be so received not later than the close of business on the 10th day following the day
on which such notice of the date of the annual meeting was mailed or public announcement of the
date of the annual meeting was made, whichever first occurs. To be in proper written form, a
stockholders notice to the Secretary must set forth as to each matter the stockholder proposes to
bring before the annual meeting (i) a brief description of the business to be brought before the
annual meeting, the text of the proposal or business (including the text of any resolutions
proposed for consideration and in the event that such business includes a proposal to amend these
Bylaws, the language of the proposed amendment) and the reasons for conducting such business at
such meeting; (ii) the name and address, as they appear on the Companys books, of the stockholder
proposing such business, and the name and record address of the beneficial owner, if any, on whose
behalf the proposal is made; (iii) as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the proposal is made, (A) the class, series and number of all shares
of the Companys stock which are owned of record by such stockholder, (B) the name of each nominee
holder of shares owned beneficially but not of record by such stockholder and the number of shares
of stock held by each such nominee holder, and (C) whether and the extent to which any derivative
instrument, swap, option, warrant, short interest, hedge or profit interest or other transaction
has been entered into by or on behalf of such stockholder and/or such beneficial owner with respect
to stock of the Company and whether any other agreement, arrangement or understanding (including
any short position or any borrowing or lending of shares of stock) has been made by or on behalf of
such stockholder and/or such beneficial owner, the effect or intent of any of the foregoing being
to mitigate loss to, or to manage risk of stock price changes for, such stockholder and/or such
beneficial owner or to increase the voting power or pecuniary or economic interest of such
stockholder and/or such beneficial owner with respect to stock of the Company; (iv) a description
of all agreements, arrangements, or understandings between such stockholder and/or such beneficial
owner and any other person or persons (including their names) in connection with the proposal of
such business by such stockholder and any material interest of such stockholder and/or such
beneficial owner in such business, including any anticipated benefit to the stockholder and/or such
beneficial owner therefrom; (v) a representation that such stockholder is a holder of record of
stock of the Company entitled to vote at such meeting and intends to appear in person or by proxy
at the annual meeting to bring such business before the meeting; (vi) a representation whether the
stockholder and/or the beneficial owner, intends or is a part of a group which intends (A) to
deliver a proxy statement and/or form of proxy to holders of at least the percentage of the
Companys outstanding capital stock required to approve or adopt the proposal and/or (B) otherwise
to
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solicit proxies or votes from stockholders in support of such proposal; and (vii) any other
information relating to such stockholder that would be required to be disclosed in a proxy
statement or other filing required to be made in connection with the solicitation of proxies with
respect
to business brought at an annual meeting of stockholders pursuant to Section 14 of the Securities
Exchange Act of 1934, as amended (the Exchange Act), and the rules and regulations promulgated
thereunder. The foregoing notice requirements of this Article II, Section 6 shall be deemed
satisfied by a stockholder with respect to business if the stockholder has notified the Company of
his, her or its intention to present a proposal at an annual meeting in compliance with applicable
rules and regulations promulgated under the Exchange Act and such stockholders proposal has been
included in a proxy statement that has been prepared by the Company to solicit proxies for such
annual meeting. For purposes of these bylaws, public announcement shall mean disclosure in a
press release reported by the Dow Jones News Service, Associated Press or comparable news service
or in a document publicly filed by the Company with the Securities and Exchange Commission pursuant
to Section 13, 14 or 15(b) of the Exchange Act.
Notwithstanding anything in these bylaws to the contrary, no business (other than nominations for
election to the Board of Directors, which must comply with the provisions of Article III, Section
6) shall be conducted at an annual meeting except in accordance with the procedures set forth in
this Article II, Section 6; provided, however, that once business has been properly brought before
the annual meeting in accordance with such procedures, nothing in this Article II, Section 6 shall
be deemed to preclude discussion by any stockholder of any such business. The chairman of the
meeting may, if the facts warrant, determine that the business was not properly brought before the
meeting; and if the chairman should so determine, the chairman shall so declare to the meeting, and
any such business not properly brought before the meeting shall not be transacted.
Notwithstanding the foregoing provisions of this Article II, Section 6, unless otherwise required
by law, if the stockholder (or a qualified representative of the stockholder) does not appear at
the annual meeting of stockholders of the Company to present proposed business, such proposed
business shall not be transacted, notwithstanding that proxies in respect of such vote may have
been received by the Company. For purposes of this Article II, Section 6, to be considered a
qualified representative of the stockholder, a person must be a duly authorized officer, manager or
partner of such stockholder or must be authorized by a writing executed by such stockholder or an
electronic transmission delivered by such stockholder to act for such stockholder as proxy at the
meeting of stockholders and such person must produce such writing or electronic transmission, or a
reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.
Notwithstanding the foregoing provisions of this Article II, Section 6, a stockholder shall also
comply with all applicable requirements of the Exchange Act, and the rules and regulations
promulgated thereunder with respect to the matters set forth in this Article II, Section 6;
provided however, that any reference in these Bylaws to the Exchange Act or the rules and
regulations promulgated thereunder are not intended to and shall not limit any requirements
applicable to proposals as to any other business to be considered pursuant to this Article II,
Section 6, and compliance with this Article II, Section 6 shall be the exclusive means for a
stockholder to submit other business (other than business brought properly under and in compliance
with Rule 14a-8 of the Exchange Act, as such Rule may be amended from time to time). Nothing in
this Article II, Section 6 shall be deemed to affect any rights (a) of stockholders to request
inclusion of proposals or nominations in the Companys proxy statement pursuant to applicable rules
and regulations promulgated under the Exchange Act or (b) of the holders of any series of preferred
stock of the Company to elect directors pursuant to any applicable provisions of the certificate of
incorporation.
7. Special meetings of the stockholders, for any purpose or purposes, unless otherwise
prescribed by statute or by the certificate of incorporation, may be called at any time only by the
Board Chair or the President or by an affirmative vote of two-thirds (2/3) of the full Board of
Directors at any regular or special meeting of the Board of Directors called for that purpose.
The Board of Directors may postpone, reschedule or cancel any special meeting of stockholders
previously scheduled by the Board of Directors. Only such business shall be conducted at a special
meeting of stockholders as shall have been brought before the meeting pursuant to the Companys
notice of meeting.
8. Business transacted at any special meeting of stockholders shall be limited to the purposes
stated in the notice.
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9. Notice of a special meeting stating the place, date and hour of the meeting and the purpose
or purposes for which the meeting is called, shall be given not less than 10 nor more than 60 days
before the date of such meeting, to each stockholder entitled to vote at such meeting.
10. The date and time of the opening and closing of the polls for each matter upon which the
stockholders will vote at a meeting shall be announced at the meeting by the person presiding over
the meeting. The Board of Directors may adopt by resolution such rules and regulations for the
conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent
inconsistent with such rules and regulations as adopted by the Board of Directors, the person
presiding over any meeting of stockholders shall have the right and authority to convene and (for
any or no reason) to recess and/or adjourn the meeting, to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of such presiding person, are appropriate
for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by
the Board of Directors or prescribed by the presiding person of the meeting, may include, without
limitation, the following: (i) the establishment of an agenda or order of business for the meeting;
(ii) rules and procedures for maintaining order at the meeting and the safety of those present;
(iii) limitations on attendance at or participation in the meeting to stockholders entitled to vote
at the meeting, their duly authorized and constituted proxies or such other persons as the
presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after
the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions
or comments by participants. The presiding person at any meeting of stockholders, in addition to
making any other determinations that may be appropriate to the conduct of the meeting, shall, if
the facts warrant, determine and declare to the meeting that a matter or business was not properly
brought before the meeting and if such presiding person should so determine, such presiding person
shall so declare to the meeting and any such matter or business not properly brought before the
meeting shall not be transacted or considered. Unless and the extent determined by the Board of
Directors or the person presiding over the meeting, meetings of stockholders shall not be required
to be held in accordance with the rules of parliamentary procedure.
11. No action shall be taken by the stockholders except in an annual or special meeting as
provided for in this Article II.
ARTICLE III
DIRECTORS
DIRECTORS
1. The number of directors shall be not less than seven (7) nor more than twelve (12) in
number, which number shall be determined by the Board of Directors from time to time. At each
annual meeting of stockholders from and after the annual meeting of stockholders to be held in
2008, each director shall hold office for a term expiring at the next annual meeting of
stockholders to be held in the year following the year of their election, with such director to
hold office until his or her successor is elected and qualified. Directors shall hold office until
the expiration of the terms for which they were elected and qualified; provided, however, that a
director or the entire Board of Directors may be removed, with or without cause, by the holders of
a majority of the shares then entitled to vote at an election of directors.
2. If the office of any director or directors becomes vacant by reason of death, resignation,
or retirement, disqualification, removal from office, increase in the number of directors, or
otherwise, a majority of the remaining directors, though less than a quorum, at a meeting called
for that purpose, may choose a successor or successors, or a new director or directors in the event
of an increase in the number of directors, who shall hold office until the next annual meeting of
stockholders or until a successor shall be elected and shall qualify.
3. In addition to the powers and authorities by these bylaws expressly conferred upon it, the
Board of Directors may exercise all such powers of the Company and do all such lawful acts and
things as are not by statute or by the certificate of incorporation or by these bylaws directed or
required to be exercised or done by the stockholders.
4. The Board of Directors may designate one or more committees, each committee to consist of
one or more directors of the Company, which, to the extent provided in said resolution or
resolutions and permitted by
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statute or by the certificate of incorporation, shall have and may
exercise the powers of the Board of Directors in the management of the business and affairs of the
Company, and may have power to authorize the seal of the Company to be affixed to all papers which
may require it. In the absence or disqualification of a member of the committee, the member or
members thereof present at any meeting and not disqualified from voting, whether or
not he, she or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in place of any such absent or disqualified member. Such
committee or committees shall have such name or names as may be determined from time to time by
resolution adopted by the Board of Directors.
5. The Board of Directors, at its first meeting after each annual meeting of stockholders,
shall elect a director to serve as Board Chair. The director so elected shall not, by virtue of
such election, be deemed to be an officer of the Company pursuant to Article VI hereof. An officer
of the Company, elected by the Board of Directors under the provisions of said Article VI, however,
may be elected to serve as the Board Chair. The Board Chair shall preside at all meetings of the
stockholders and Board of Directors and otherwise shall have such duties and responsibilities as
may be assigned from time to time by the Board of Directors. During the absence or disability of
the Board Chair, the Board of Directors shall designate another director to discharge the duties of
the Board Chair.
6. Only persons who are nominated in accordance with the following procedures shall be
eligible for election as directors of the Company, except as may be otherwise provided in the
certificate of incorporation with respect to the right of holders of preferred stock of the Company
to nominate and elect a specified number of directors in certain circumstances. Nominations of
persons for election to the Board of Directors may be made at any annual meeting of stockholders,
or at any special meeting of stockholders called for the purpose of electing directors, (i) by or
at the direction of the Board of Directors (or any duly authorized committee thereof) or (ii) by
any stockholder of the Company (a) who is a stockholder of record on the date of the giving of the
notice provided for in this Section Article III, Section 6 and on the record date for the
determination of stockholders entitled to notice of and to vote at such meeting and (b) who
complies with the notice procedures set forth in this Article III, Section 6.
In addition to any other applicable requirements, for a nomination to be made by a stockholder,
such stockholder must have given timely notice thereof in proper written form to the Secretary of
the Company. In no event shall the public announcement of an adjournment or postponement of an
annual meeting commence a new time period (or extend any time period) for the giving of
stockholders notice as described above.
To be timely, a stockholders notice to the Secretary must be delivered to or be mailed and
received at the principal executive offices of the Company (i) in the case of an annual meeting,
not less than 60 days nor more than 90 days prior to the anniversary date of the immediately
preceding annual meeting of stockholders; provided, however, that in the event that the date of the
meeting is called for a date that is not within 25 days before or after such anniversary date,
notice by the stockholder in order to be timely must be so received not later than the close of
business on the 10th day following the day on which such notice of the date of the annual meeting
was mailed or public announcement of the date of the annual meeting was made, whichever first
occurs; and (ii) in the case of a special meeting called for the purpose of electing directors, not
later than the close of business on the 10th day following the day on which notice of the date of
the special meeting was mailed or public announcement of the date of the special meeting was made,
whichever first occurs. Such stockholders notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election as a director (i) the name, age, business address and
residence address of such person, (ii) the principal occupation or employment of such person, (iii)
(A) the class, series and number of all shares of stock of the Company which are owned of record by
such person, (B) the name of each nominee holder of shares owned beneficially but not of record by
such person and the number of shares of stock held by each such nominee holder, and (C) whether and
the extent to which any derivative instrument, swap, option, warrant, short interest, hedge or
profit interest or other transaction has been entered into by or on behalf of such person with
respect to stock of the Company and whether any other agreement, arrangement or understanding
(including any short position or any borrowing or lending of shares of stock) has been made by or
on behalf of such person, the effect or intent of any of the foregoing being to mitigate loss to,
or to manage risk of stock price changes for, such person or to increase the voting power or
pecuniary or economic interest of such person with respect to stock of the Company; (iv) any other
information relating to the person that would be required to be disclosed in a proxy statement or
other filings required to be made in connection with solicitations of proxies for election
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of
directors pursuant to Section 14 of the Exchange Act, and the rules and regulations promulgated
thereunder; and (b) as to the stockholder giving the notice and the beneficial owner, if any, one
whose behalf the nomination is made, (i) the name and record address of such stockholder and of any
such beneficial owner; (ii) (A) the class, series and number of all shares of stock of the Company
which are owned of record by such stockholder, (B) the name of each nominee holder of shares owned
beneficially but not of record by such stockholder and the number of shares of stock held by each
such nominee holder, and (C) whether and the extent to which any derivative
instrument, swap, option, warrant, short interest, hedge or profit interest or other transaction
has been entered into by or on behalf of such stockholder and/or such beneficial owner with respect
to stock of the Company and whether any other agreement, arrangement or understanding (including
any short position or any borrowing or lending of shares of stock) has been made by or on behalf of
such stockholder and/or such beneficial owner, the effect or intent of any of the foregoing being
to mitigate loss to, or to manage risk of stock price changes for, such stockholder and/or such
beneficial owner or to increase the voting power or pecuniary or economic interest of such
stockholder and/or such beneficial owner with respect to stock of the Company; (iii) a description
of all agreements, arrangements, or understandings between such stockholder and/or such beneficial
owner and each proposed nominee and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made by such stockholder, and any material interest of such
stockholder and/or such beneficial owner in such nomination, including any anticipated benefit to
the stockholder and/or such beneficial owner therefrom; (iv) a representation that such stockholder
is a holder of record of stock of the Company entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to nominate the persons named in its notice; (v) a
representation whether the stockholder or the beneficial owner, if any, intends or is a part of a
group which intends (A) to deliver a proxy statement and/or form of proxy to holders of at least
the percentage of the Companys outstanding capital stock required to elect the nominee and/or (B)
otherwise to solicit proxies or votes from stockholders in support of such nomination; and (vi)any
other information relating to such stockholder that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with the solicitation of proxies for
election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a written consent of each proposed
nominee to being named as a nominee and to serve as a director if elected. At the request of the
Board of Directors (or any duly authorized committee thereof), any person nominated by the Board of
Directors (or any duly authorized committee thereof) for election as a director shall furnish to
the Secretary of the Company that information required to be set forth in a stockholders notice of
nomination that pertains to the nominee.
The chairman of the meeting may, if the facts warrant, determine that a nomination was not made in
accordance with the procedures prescribed in this bylaw; and if the chairman should so determine,
the chairman shall so declare to the meeting, and the defective nomination shall be disregarded.
Notwithstanding the foregoing provisions of this Article III, Section 6, unless otherwise required
by law, if the stockholder (or a qualified representative of the stockholder) does not appear at
the annual meeting of stockholders of the Company to present a nomination, such nomination shall be
disregarded, notwithstanding that proxies in respect of such vote may have been received by the
Company. For purposes of this Article III, Section 6, to be considered a qualified representative
of the stockholder, a person must be a duly authorized officer, manager or partner of such
stockholder or must be authorized by a writing executed by such stockholder or an electronic
transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of
stockholders and such person must produce such writing or electronic transmission, or a reliable
reproduction of the writing or electronic transmission, at the meeting of stockholders.
ARTICLE IV
MEETINGS OF THE BOARD
MEETINGS OF THE BOARD
1. Each newly elected Board of Directors shall hold its first and annual meeting immediately
following the annual meeting of the stockholders at a place designated by the Board, or they may
meet at such place and time as shall be fixed by the consent in writing or by electronic
transmission of all the directors. No notice of such meeting shall be necessary to the newly
elected directors in order legally to constitute the meeting; provided, however, that a majority of
the whole Board shall be present.
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2. Meetings of the Board of Directors other than the annual meeting, may be called at any time
by the Board Chair, Chief Executive Officer, President or Secretary, or in their absence by the
Executive Vice President, or by any Vice President or on the written request of any three
directors; on one days notice to each director, either personally or by mail or by telecopier,
telephone or other means of electronic transmission. Unless otherwise fixed by the Board, such
meetings shall be held at the office of the Company in Edina, Minnesota.
3. At all meetings of the Board a majority of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors,
except as may be otherwise specifically provided by statute or by the certificate of incorporation
or by these bylaws.
4. Unless otherwise restricted by the certificate of incorporation or these bylaws, any
actions required or permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting, if all members of the Board or the committee, as
the case may be, consent thereto in writing or by electronic transmission, and the writing or
writings or electronic transmissions are filed with the minutes of proceedings of the Board or the
committee.
5. Unless otherwise restricted by the certificate of incorporation, the Board of Directors
shall have the authority to fix the compensation of directors.
ARTICLE V
INDEMNIFICATION
INDEMNIFICATION
Section 1.
Right to Indemnification.
Every person who was or is a party or is threatened to be made a party to or is involved in any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a director or officer of
the Company or, while a director or officer of the Company, is or was serving at the request of the
Company or for its benefit as a director, officer, employee or agent of another corporation, or as
its representative in a partnership, joint venture, trust or other enterprise, including any
employee benefit plan, shall be indemnified and held harmless by the Company to the fullest extent
legally permissible under the General Corporation Law of the State of Delaware in the manner
prescribed therein, from time to time, against all expenses (including attorneys fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in connection
therewith. Similar indemnification may be provided by the Company to an employee or agent of the
Company who was or is a party or is threatened to be made a party to or is involved in any such
threatened, pending or completed action, suit or proceeding by reason of the fact that he is or was
an employee or agent of the Company or is or was serving at the request of the Company or for its
benefit as a director, officer, employee, or agent of another corporation or as its representative
in a partnership, joint venture, trust or other enterprise, including any employee benefit plan.
Section 2.
Other Indemnification.
The rights of indemnification conferred by the Article shall not be exclusive of, but shall be
in addition to, any other rights which such directors, officers, employees or agents may have or
hereafter acquire and, without limiting the generality of such statement, they shall be entitled to
their respective rights of indemnification under any by-law, agreement, vote of stockholders,
provisions or law or otherwise, as well as their rights under this Article.
Section 3.
Indemnification Agreement.
The Company shall have the express authority to enter such agreements as the Board of
Directors deems appropriate for the indemnification of present or future directors or officers of
the Company
in
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connection with their service to, or status with, the Company or any other
corporation, entity or enterprise with whom such person is serving at the express written request
of the Company.
ARTICLE VI
OFFICERS
OFFICERS
1. The Board of Directors, at its first meeting after each annual meeting of stockholders,
shall elect the corporate officers of the Company.
2. The corporate officers of the Company shall be a Chief Executive Officer, a President, as
many Vice Presidents (some of whom may be designated Senior Vice Presidents) as may be deemed
necessary, such Assistant Vice Presidents as may be deemed necessary, a Secretary and such
Assistant Secretaries as may be deemed necessary, a Treasurer and such Assistant Treasurers as may
be deemed necessary, and a Controller and such Assistant Controllers as may be deemed necessary.
3. The Board of Directors may elect such other corporate officers and agents as it shall deem
necessary, including a Chief Operating Officer, one or more Executive Vice Presidents, and one or
more operating officers (who may be designated Vice Presidents, but who shall not be corporate
officers). Such other corporate and operating officers and agents shall hold their offices for such
terms, shall exercise such powers and perform such duties as shall be determined from time to time
by the Board; provided, however, that operating officers shall exercise only such powers and
perform only such duties as may be determined by the Board and shall not have authority to exercise
the powers or discharge the duties of any corporate officer. Unless expressly stated to the
contrary, any reference in these Bylaws to officers, by title or otherwise, other than in this
Paragraph 3 of Article VI, shall be deemed to mean corporate officers.
4. The Chief Executive Officer must be a director but no other officer need be a director. Any
two offices may be held by the same person.
5. If the President is also the Chief Executive Officer of the Company, he shall have general
and active management of the business of the Company, shall see that all orders and resolutions of
the Board are carried into effect and shall perform such other duties as the Board shall prescribe.
He shall possess power to sign all certificates, contracts and other instruments of the Company. If
the offices of President and Chief Executive Officer are not held by the same person, then the
Chief Executive Officer shall have the foregoing responsibilities, duties and powers (except that,
pursuant to Article I, Section 1 of these Bylaws, the Chief Executive Officer shall not sign
certificates of stock); and the President shall report to the Chief Executive Officer and shall
exercise such powers and shall perform such duties as shall be determined from time to time by the
Board.
6. During the absence of the Chief Executive Officer, the President (if a different person),
and during the absence or disability of both of them, the Executive Vice Presidents in the order in
which they have been nominated, shall exercise all the functions of the Chief Executive Officer.
Each Executive Vice President shall have such powers and discharge such duties as may be assigned
from time to time by the Board of Directors.
7. The Vice Presidents and Assistant Vice Presidents shall perform such duties as are
prescribed and allotted to them by the Board of Directors, the Chief Executive Officer or the
President.
8. The Secretary shall issue notices of all meetings, shall attend all meetings of the Board
of Directors and all meetings of the stockholders, shall keep their minutes, shall have charge of
the seal and the corporate books, shall sign with the President, Executive Vice Presidents or Vice
Presidents, stock certificates and such other instruments as require such signature, and shall make
such reports and perform such other duties as are incident to the office or are properly required
of him by the Board of Directors.
9. The Assistant Secretary shall, in the absence or disability of the Secretary, perform the
duties and exercise the powers of the Secretary and shall perform such other duties as the Board of
Directors or the Chief Executive Officer shall prescribe.
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10. The Treasurer shall have the custody of all monies and securities of the Company. He shall
sign or countersign such instruments as require his signature, and shall perform all duties
incident to his office, or that are properly required of him by the Board. He shall render to the
Chief Executive Officer and Board of Directors, whenever required, a report of his transactions as
Treasurer and of the financial condition of the Company.
11. The Assistant Treasurers shall, in the absence or disability of the Treasurer, perform the
duties and exercise the powers of the Treasurer, and shall perform such other duties as the Board
of Directors or the Chief Executive Officer shall prescribe.
12. The Controller shall keep regular books of accounts and balance the same periodically. He
shall keep full and accurate accounts of receipts and disbursements of the Company. He shall
deposit all monies, and other valuable effects of the Company, in such depositories as may be
designated. He shall disburse the funds of the Company as properly authorized on adequate
supporting documents and shall render to the Chief Executive Officer and Board of Directors,
whenever required, an accounting of all of his transactions as Controller and the financial
condition of the Company.
13. The Assistant Controller shall, in the absence or disability of the Controller, perform the
duties and exercise the powers of the Controller, and shall perform such other duties as the Board
of Directors or the Chief Executive Officer shall prescribe.
ARTICLE VII
DIVIDENDS
DIVIDENDS
1. Dividends upon the capital stock of the Company, subject to the provisions of the
certificate of incorporation, if any, may be declared by the Board of Directors at any regular or
special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the
capital stock, subject to the provisions of the certificate of incorporation.
2. Before payment of any dividend, there may be set aside out of any funds of the Company
available for dividends such sum or sums as the directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Company, or for such other purposes
as the directors shall think conducive to the interest of the Company, and the directors may modify
or abolish any such reserve in the manner in which it was created.
ARTICLE VIII
FIXING RECORD DATE
FIXING RECORD DATE
1. In order that the Company may determine the stockholders entitled to notice of any meeting
of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which record date shall, unless otherwise required by law, not be
more than 60 nor less than 10 days before the date of such meeting. If the Board of Directors so
fixes a date, such date shall also be the record date for determining the stockholders entitled to
vote at such meeting unless the Board of Directors determines, at the time it fixes such record
date, that a later date on or before the date of the meeting shall be the date for making such
determination. If no record date is fixed by the Board of Directors, the record date for
determining stockholders entitled to notice of or to vote at a meeting of directors shall be 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. A
determination of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for determination of stockholders entitled to vote at the
adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to
notice of such adjourned meeting the same or an earlier date as that fixed for determination of
stockholders entitled to vote in accordance herewith at the adjourned meeting.
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2. In order that the Company may determine the stockholders entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to exercise any rights
in respect of any change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which shall not be more than 60 days prior to
such other action. If no such record date is fixed, the record date for determining the
stockholders for any such purpose shall be the close of business on the day on which the Board of
Directors adopts the resolutions relating thereto.
ARTICLE IX
REGISTERED STOCKHOLDERS
REGISTERED STOCKHOLDERS
1. The Company shall be entitled to recognize the exclusive right of a person registered on
its books as the owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other notice thereof, except
as otherwise provided by the laws of Delaware.
ARTICLE X
NOTICE
NOTICE
1. Whenever under the provision of the statutes or of the certificate of incorporation or of
these bylaws, notice is required to be given to any director or stockholder, it shall not be
construed to mean personal notice, but such notice may be given in writing, by mail, by depositing
the same in the post office or letter box, in a postpaid sealed wrapper, addressed to such
stockholder or director at such address as appears on the books of the Company, and such notice
shall be deemed to be given at the time when the same shall be thus mailed. Notice to directors may
also be given by telecopier, telephone or other means of electronic transmission.
2. Whenever any notice is required to be given under the provisions of the statutes or of the
certificate of incorporation or of these bylaws, a waiver thereof in writing, signed by the person
or persons entitled to said notice, or a waiver by electronic transmission by the person entitled
to notice, whether before or after the time stated therein, shall be deemed equivalent thereto.
ARTICLE XI
SEAL
SEAL
1. The corporate seal of the Company shall be of such design as may be decided upon by the
officers of the Company.
ARTICLE XII
AMENDMENTS
AMENDMENTS
1. These bylaws may be amended, repealed or altered in whole or in part by the Board of
Directors at any regular meeting or at any special meeting of the Board of Directors where such
action has been announced in the call and notice of meeting.
ARTICLE XIII
CONSTRUCTION
CONSTRUCTION
1. Masculine pronouns shall be construed as feminine or neuter pronouns and singular pronouns
and verbs shall be construed as plural in any place or places herein in which the context may
require such construction.
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