EXHIBIT 3.1.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
RLD ENTERPRISES, INC.
ARTICLE I
NAME
1.1) The name of the corporation shall be RLD Enterprises, Inc.
ARTICLE II
REGISTERED AGENT
2.1) The registered agent of the corporation is James Garlie whose address is
8120 Penn Avenue South, Suite 140, Minneapolis, Minnesota 55431, which address
is also the address of the registered office of the corporation.
ARTICLE III
PURPOSE
3.1) The corporation is organized for the transaction of any and all lawful
business purposes for which corporations may be incorporated under the Minnesota
Business Corporation Act.
ARTICLE IV
DURATION
4.1) The duration of the corporation shall be perpetual.
ARTICLE V
STOCK
5.1) The total number of shares of all classes of stock which the corporation
shall have authority to issue is 70,000,000 shares, of which 50,000,000 shares
shall be Common Stock, $.01 par value, and 20,000,000 shares shall be Serial
Preferred Stock. The Board of Directors of the Corporation is authorized to
establish from the Serial Preferred Stock, by resolution adopted and filed in
the manner provided by law, one or more classes or series of preferred shares,
to designate each such class or series, and to fix the relative rights and
preferences of each such class or series.
5.2) Except as provided by law, by these Articles of Incorporation or by the
resolution or resolutions of the Board of Directors providing for the issue of
any series of the Preferred Stock, the Common Stock shall have the exclusive
right to vote for the election of Directors and for all other purposes, each
holder of the Common Stock being entitled to one vote for each share held.
Shareholders shall not have any cumulative voting rights.
5.3) Subject to all of the rights of the Preferred Stock, the holders of the
Common Stock shall be entitled to receive, when, as and if declared by the Board
of Directors, out of funds legally available therefor, dividends payable in
cash, stock or otherwise.
5.4) Shareholders shall not have any preemptive rights to subscribe for or
purchase any shares of the Corporation. The Board of Directors may, at any time
and from time to time, issue and sell for such consideration as may be
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permitted by law, any or all of the authorized shares of the corporation not
then issued and any and all of any stock of any class that may hereafter be
authorized.
5.5) The Board of Directors may issue any or all shares of the corporation
authorized by these Articles and not already issued, including any shares
previously issued and reacquired by the corporation, provided such shares have
not been retired. Upon approval by the Board of Directors, shares may be issued
for any consideration, or for no consideration to effectuate share conversions,
dividends or splits, including reverse splits. The Board of Directors may
determine the value of non-monetary consideration received for shares.
5.6) The Board of Directors may issue rights to purchase shares of the
corporation, and shall fix the terms, provisions and conditions of such rights
to purchase, including the conversion basis and the price at which shares may be
purchased or subscribed. Shares to be issuable upon the exercise of all
outstanding rights to purchase, including such rights to be issued, must be
authorized by this Certificate and not already issued.
ARTICLE VI
NON-CUMULATIVE VOTING
6.1) In all elections for directors, each shareholder shall have one vote for
each share of stock held. A shareholder shall not have the right to cumulate his
or her shares in any election of directors.
ARTICLE VII
DIRECTORS
7.1) The Board of Directors shall have the power and authority to take any
action required or permitted of it by law or by this Certificate. The Board
shall take action by the affirmative vote of a majority of directors present at
a duly held meeting, except where law requires the affirmative vote of a larger
proportion or number and except as otherwise provided herein. The directors
shall be divided into three (3) classes, as nearly equal in number as the then
total number of directors constituting the whole Board permits, with the term of
office of one class expiring each year at the regular meeting of shareholders.
Except as otherwise provided in these Articles or the Bylaws, each director
shall be elected by the shareholder to hold office for a term of three
consecutive years.
7.2) Any action required or permitted to be taken at a Board meeting may be
taken by written action signed by a majority of directors. If the action must
also be approved by the shareholders, then the action must be taken by written
action of all the directors.
7.3) Any or all of the directors of the corporation may be removed from office
by the stockholders, with or without cause, at any annual or special meeting of
stockholders of the corporation, the notice of which shall state that the
removal of a director or directors is among the purposes of the meeting, by the
affirmative vote of at least sixty-six and two thirds percent (66 2/3%) of the
outstanding shares of Common Stock of the corporation.
ARTICLE VIII
POWERS
8.1) The corporation shall have the unlimited power to engage in and to do any
act necessary or incidental to the carrying out of its purposes, together with
the power to do or perform any acts consistent with or which may be implied from
the powers expressly conferred upon corporations by the Minnesota Business
Corporation Act.
ARTICLE IX
BYLAWS
9.1) The Board of Directors may adopt bylaws which may contain any provision
relating to the management of the business or the regulation of the affairs of
the corporation not inconsistent with the law or the Articles. The power to
adopt, amend or repeal the bylaws shall be vested in the Board.
ARTICLE X
SHAREHOLDERS
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10.1) Actions which require shareholder approval shall be taken by the
affirmative vote of the holders of a majority of the voting power of the shares
present, except when the Minnesota Business Corporation Act, of this Certificate
requires a larger proportion or number.
10.2) Except as otherwise provided in these Articles of Incorporation, the
affirmative vote of the holders of a majority of the voting power of the shares
outstanding shall be sufficient to amend these Articles of Incorporation. All
other shareholder actions shall require an affirmative vote of the holders of a
majority of the voting power of the shares present.
ARTICLE XI
INDEMNIFICATION
11.1) The directors of the Corporation shall be indemnified by the Corporation
for their actions as directors to the fullest extent permitted by the Minnesota
Corporation Act as amended from time to time.
11.2) No director shall have personal liability to the Corporation or its
shareholders for monetary damages for breach of fiduciary duty as a director
except as otherwise required by law.
ARTICLE XII
BUSINESS COMBINATIONS
12.1) The Board of Directors of the Corporation, when evaluating any proposal
another party involving:
(i) a tender offer for any securities of the Corporation,
(ii) a merger or consolidation of the Corporation with or into any other person,
(iii) a sale, lease, exchange or other disposition by the Corporation, or any
subsidiary of the Corporation, whether or not in partial or complete
liquidation, of all or any substantial part of the assets of the Corporation to
or with any other person,
(iv) any issuance or transfer by the Corporation or any subsidiary of the
Corporation of any securities of the Corporation having voting power (whether
generally or upon the happening of any contingency), or any securities or
instruments convertible into or exchangeable for securities having voting power,
to any other person in exchange for securities, cash or other property or a
combination thereof, or
(v) any other transaction having an effect similar to any of the foregoing upon
the properties, operations or control of the Corporation, shall, in connection
with the exercise of its judgment in determining what is in the best interests
of the Corporation and its stockholders, give due consideration to the
following:
(1) the character, integrity, business philosophy and financial status of the
other party or parties to the transaction;
(2) the consideration to be received by the Corporation or its stockholders in
connection with such transaction, as compared to:
(a) the current market price or value of the Corporation's properties or
securities;
(b) the estimated future value of the Corporation, its properties or securities;
(c) such other measures of the value of the Corporation, its properties or
securities as the Board of Directors may deem appropriate;
(3) the projected social, legal and economic effects of the proposed action or
transaction upon the Corporation, its employees, suppliers, regulatory agencies
and customers and the communities in which the Corporation and its subsidiaries
do business;
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(4) the general desirability of the continuance of the Corporation as an
independent entity; and
(5) such other factors as the Board of Directors may deem relevant.
In giving such consideration to the foregoing factors, the Board of Directors
and each individual director shall be deemed to be performing their duly
authorized duties and acting in good faith and in the best interests of the
Corporation.
12.2) The affirmative vote of the holders of not less than two-thirds of the
outstanding shares of the Corporation's common stock (other than the shares
beneficially owned by an "Acquiring Person" as hereinafter defined) shall be
required for the approval of authorization of any "Business Combination" (as
hereinafter defined) of the Corporation or any subsidiary of the Corporation
with any Acquiring Person, notwithstanding the fact that no vote may be
required, or that a lesser percentage may be specified by law or otherwise;
provided, however, that the two-thirds outstanding common stock requirement
shall not be applicable and such Business Combination shall require only such
affirmative vote as is required by law or otherwise if: (i) the Board of
Directors of the Corporation by at least a 65% vote has expressly approved such
Business Combination either in advance of or subsequent to such Acquiring Person
becoming an Acquiring Person; or (ii) as of the date of the consummation of a
Business Combination, the holders of each class or series of capital stock, as
the case may be, of the Corporation receive a Fair Price as such term is defined
in subsection (c) below.
For the purpose of this Article 12:
(a) The term "Business Combination" shall mean any
(i) merger or consolidation of the Corporation with an Acquiring person or any
other Corporation which is or after such merger or consolidation would be an
"Affiliate" or "Associate" (as hereinafter defined) of an Acquiring Person;
(ii) sale, lease or transfer (in one transaction or a series of transactions)
with any Acquiring Person or any Affiliate of any Acquiring Person, of all or
substantially all of the assets of the Corporation or of a subsidiary of the
Corporation to an Acquiring Person or any Affiliate or Associate of any
Acquiring Person;
(iii) adoption of any plan or proposal for the liquidation or dissolution of the
Corporation proposed by or on behalf of an Acquiring Person or any Affiliate or
Associate of any Acquiring Person;
(iv) reclassification of securities (including any reverse stock split) or
recapitalization of the Corporation or any other transaction that would have the
effect, either directly or indirectly, of increasing the proportionate ownership
of any class of equity or convertible securities of the Corporation or any
subsidiary of the Corporation which is directly or indirectly beneficially owned
by an Acquiring Person or any Affiliate or Associate of any Acquiring Person;
and
(v) an agreement, contract or other arrangement providing for any of the
transactions described in this definition of Business combination.
(b) The term "Fair Market Value" shall mean (i) in the case of shares, the
highest closing sale price quoted during the 30-day calendar period immediately
preceding the consummation of the Business Combination on the National
Association of Securities Dealers, Inc. automated quotations system or any
similar system then in general use, or if such shares are listed on an exchange,
the highest closing bid quotation with respect to the shares during the 30-day
calendar period preceding the date in question, or, if no such quotations are
available, the fair market value of a share on the date in question as
determined by 65% of the Board of Directors; and (ii) in the case of property
other than cash or shares, the fair market value of such property on the date in
question as determined by 65% of the Board of Directors.
(c) The term "Fair Price" shall mean that the aggregate amount of cash and the
Fair Market Value of consideration other than cash to be received per share are
at least equal to the highest of the following:
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(i) if applicable, the highest per share price, including any brokerage
commissions, transfer taxes, and soliciting dealers' fees, paid by the Acquiring
Person for any shares acquired by it within the two year period immediately
preceding the consummation of the Business Combination or the transaction in
which it became an Acquiring Person, whichever is higher; or
(ii) the Fair Market Value per share.
(d) The term "Person" shall mean any individual, firm, corporation or other
entity and shall include any group comprised of any Person and any other Person
with whom such person or any Affiliate or Associate of such Person has any
agreement, arrangement or understanding, directly or indirectly, for the purpose
of acquiring, holding, voting or disposing of voting stock of the Corporation.
(e) The term "Acquiring Person" shall mean any Person (other than the
Corporation, or any subsidiary or any profit-sharing, employee stock ownership
or other employee benefit plan of the Corporation or any subsidiary or any
trustee of or fiduciary with respect to any such plan when acting in such
capacity) who or which:
(i) is the Beneficial Owner (as hereinafter defined) of 15% or more of the
outstanding common stock of the Corporation;
(ii) is an Affiliate or Associate of the Corporation and at any time within the
two year period immediately prior to the date in question was the Beneficial
Owner of 15% or more of the outstanding common stock of the Corporation; or
(iii) is at such time an assignee of or has otherwise succeeded to the
beneficial ownership of any shares of outstanding common stock of the
Corporation which were at any time within the two year period immediately prior
to such time beneficially owned by any Acquiring Person, if such assignment or
succession shall have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning of the
Securities Act of 1933.
(f) A Person shall be a Beneficial Owner of any common stock:
(i) which such Person or any of its Affiliates or Associates beneficially owns,
directly or indirectly; or
(ii) which such person or any of its Affiliates or Associates has, directly or
indirectly,
(a) the right to acquire whether such right is exercisable immediately or not,
pursuant to any agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise, or
(b) the right to vote pursuant to any agreement, arrangement or understanding;
(g) The terms "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as in effect on September 1, 1997.
(h) An Acquiring Person shall be deemed to have acquired a share of the common
stock of the Corporation at the time when such Acquiring Person became the
beneficial owner thereof.
ARTICLE XIII
AMENDMENTS
13.1) Notwithstanding any other provision of law, these Articles of
Incorporation or the Bylaws of the Corporation, the affirmative vote of the
holders of 66 2/3 percent of the outstanding voting shares of each class
eligible to vote, voting as a class, of the Corporation shall be required to
alter, amend, repeal or adopt any provision conflicting with, Section 7.1,
Section 7.3, Article XII or this Article XIII of these Articles of
Incorporation.
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IN WITNESS WHEREOF, I have hereunto set my hand this 17th day of
September, 1997.
/s/ James Garlie
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James Garlie President
