SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
filed pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): May 30, 1996
CURATIVE HEALTH SERVICES, INC.
(Exact name of registrant as specified in its charter)
Minnesota 0-19370 41-1503914
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
14 Research Way, Box 9052, East Setauket, New York 11733-9502
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (516) 689-7000
Curative Technologies, Inc.
(Former name or former address, if changed since last report.)
Exhibit Index on Page 3
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Item 5. Other Events.
1) At the Curative Health Services, Inc. (the
"Company") Annual Meeting of Shareholders held
May 30, 1996, the shareholders approved an amendment
to the Company's Articles of Incorporation, which
changed its name from "Curative Technologies,
Inc." to "Curative Health Services, Inc."
2) At the Company's Board of Directors meeting held
on June 24, 1996, the Board of Directors adopted
amendment to the Company's Bylaws with respect to
notice requirements to the Board of Directors of
certain stockholder proposals and the ability of
stockholder to remove directors and call meetings.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
99.1 Fourth Restated Articles of Incorporation of the
Company, as amended.
99.2 Amended and Restated Bylaws of the Company.
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: June 27, 1996
CURATIVE HEALTH SERVICES, INC.
By /s/ John C. Prior
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John C. Prior
Chief Financial Officer
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INDEX TO EXHIBITS
-----------------
(c) Exhibits
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Page No.
--------
99.1 Fourth Restated Articles of Incorporation of the
Company, as amended............................................
99.2 Amended Restated Bylaws of the Company.........................
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FOURTH
RESTATED
ARTICLES OF INCORPORATION
OF
CURATIVE TECHNOLOGIES, INC.
ARTICLE I. NAME
The name of this Corporation is Curative Technologies, Inc.
ARTICLE II. REGISTERED OFFICE
The address of the registered office of this Corporation in Minnesota is
7667 Cahill Road, Edina, Minnesota 55435.
ARTICLE III. AUTHORIZED SHARES
The aggregate number of shares which this Corporation shall have authority
to issue is 60,000,000 shares, divided into 50,000,000 shares of Common Stock,
par value $.01 per share, and 10,000,000 shares of Preferred Stock, par value
$.01 per share, undesignated as to series. The shares of Preferred Stock shall
be divisible into such classes and series, have the designations, voting rights,
and other rights and preferences, and be subject to the restrictions, that the
board of directors may from time to time establish, fix and determine,
consistent with these articles of incorporation.
ARTICLE IV. NO CUMULATIVE VOTING
There shall be no cumulative voting by the stockholders of the Corporation.
ARTICLE V. NO PREEMPTIVE RIGHTS
The stockholders of the Corporation shall not have any preemptive rights to
subscribe for or acquire securities or rights to purchase securities of any
class, kind or series of the Corporation.
ARTICLE VI. WRITTEN ACTION BY DIRECTORS
An action required or permitted to be taken at a meeting of the board of
directors of the Corporation may be taken by a written action signed, or
counterparts of a written action signed in the aggregate, by all of the
directors unless the action need not be approved by the stockholders of the
Corporation, in which case the action may be taken by a written action signed,
or counterparts or a written action
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signed in the aggregate, by the number of directors that would be required to
take the same action at a meeting of the board of directors of the Corporation
at which all of the directors were present.
ARTICLE VII. LIMITATION ON DIRECTOR'S LIABILITY
A director of this Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders; (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (iii) under ss.302A.559 or ss.80A.23 of the Minnesota
Statutes; (iv) for any transaction from which the director derived an improper
personal benefit; or (v) for any act or omission occurring prior to the date
when this Article VII became effective.
If the Minnesota Business Corporation Act is hereafter amended to authorize
the further elimination or limitation of the liability of a director, then the
liability of a director of this Corporation shall be eliminated or limited to
the fullest extent permitted by the Minnesota Business Corporation Act.
Any repeal or modification of the foregoing provisions of this Article VII
by the stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
of modification.
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State of Minnesota
Office of the Secretary of State
[SEAL]
See instructions on reverse
side for completing this form.
Notice of Change of
Registered Office--Registered Agent or Both
by
- --------------------------------------------------------------------------------
Name of Corporation
Curative Technologies, Inc.
- --------------------------------------------------------------------------------
Pursuant to Minnesota Statutes, Section 302A, 123, 303.10 or 317.19 the
undersigned hereby certifies that the Board of Directors of the above named
Corporation has resolved to change the corporation's registered office or agent:
- --------------------------------------------------------------------------------
Agent's (Fill in this box only if you already have an agent. Do not use
Name the corporate name in this box.)
F
CT Corporation
R ----------------------------------------------------------------------------
Address
O No. & 7667 Cahill Road
Street
M ----------------------------------------------------------------------------
City County Zip
Edina Hennepin MN 55435
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Agent's
Name CT Corporation
----------------------------------------------------------------------------
T Address (You may not list a P.O. Box, but you may list a rural route and
No. & box number.)
O Street
2915 Waters Road, Suite 110
----------------------------------------------------------------------------
City County Zip
Minnesota-St. Paul Dakota MN 55121
- --------------------------------------------------------------------------------
The new address may not be a post office box. It must be a street address,
pursuant to Minnesota Statutes, Section 302A.011, Subd. 3.
This change is effective on the day it is
filed with the Secretary of State, unless you
indicate another date, no later than 30 days
after filing with the Secretary of State, in
this box: [ ]
I certify that I am authorized to execute this certificate and I further certify
that I understand that by signing this certificate I am subject to the penalties
of perjury as set forth in section 609.48 as if I had signed this certificate
under oath.
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Name of Officer or Other Authorized Signature
Agent of Corporation
Russell B. Whitman /s/ Russell B. Whitman
- --------------------------------------------------------------------------------
Title or Office Date
President & CEO 7/18/93
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Do not write below this line. For Secretary of State's use only.
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Receipt Number File Data
- --------------------------------------------------------------------------------
STATE OF MINNESOTA
DEPARTMENT OF STATE
FILED
JUL 28 1993
894501
/s/ Joan Anderson Growe
Secretary of State
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Page 2
[SEAL] STATE OF MINNESOTA
SECRETARY OF STATE
NOTICE OF CHANGE OF REGISTERED OFFICE/
REGISTERED AGENT
Please read the instructions on the back before completing this form.
1. Corporate Name:
Curative Technologies, Inc.
- --------------------------------------------------------------------------------
2. Registered Office Address (No. & Street): List a complete street address or
rural route and rural route box number. A post office box is not
acceptable.
401 Second Avenue South, #454 Minneapolis MN 55401
- --------------------------------------------------------------------------------
Street City State Zip Code
3. Registered Agent (Registered agents are required for foreign corporations
but optional for Minnesota corporations):
CT Corporation System
- --------------------------------------------------------------------------------
If you do not wish to designate an agent, you must list "NONE" in this box.
DO NOT LIST THE CORPORATE NAME.
In compliance with Minnesota Statutes, Section 302A.123, 303.10, 308A.025,
317A.123 or 322B.135 I certify that the above listed company has resolved to
change the company's registered office and/or agent as listed above.
I certify that I am authorized to execute this certificate and I further certify
that I understand that by signing this certificate I am subject to the penalties
of perjury as set forth in Minnesota Statutes Section 609.48 as if I had signed
this certificate under oath.
/s/ Joseph W. Wirth
- ------------------------------
Signature of Authorized Person
Name and Telephone Number of a Contact Person: Joe Wirth (612) 340-8854
--------------------------------
please print legibly
- --------------------------------------------------------------------------------
Office Use Only
Filing Fee: Minnesota Corporations,
Cooperatives and
Limited Liability
Companies: $35.00 STATE OF MINNESOTA
DEPARTMENT OF STATE
Non-Minnesota FILED
Corporations: $50.00 SEP 01 1995
Make checks payable to /s/ Joan Anderson Growe
Secretary of State
Secretary of State
Return to: Minnesota Secretary of State
180 State Office Bldg.
100 Constitution Ave.
St. Paul, MN 55155-1299
(612) 296-2803
164735
<PAGE>
CERTIFICATE OF DESIGNATION
OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
CURATIVE TECHNOLOGIES, INC.
The undersigned hereby certifies that the Board of Directors of Curative
Technologies, Inc. (the "Corporation"), a corporation organized and existing
under the Minnesota Business Corporation Act, duly adopted the following
resolution on October 25, 1995:
RESOLVED, that a series of preferred stock of the Corporation is hereby
created, and the designation and amount thereof and the relative rights and
preferences of the shares of such series, are as follows:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" (the "Preferred
Shares") and the number of shares constituting the Preferred Shares shall be
500,000. Such number of shares may be increased or decreased by resolution of
the Board of Directors and any necessary shareholder approval; provided,
however, that no decrease shall reduce the number of shares of Preferred Shares
to a number less than the number of shares then outstanding plus the number of
shares reserved for issuance upon the exercise of outstanding options, rights or
warrants or upon the conversion of any outstanding securities issued by the
Corporation convertible into Preferred Shares.
Section 2. Dividends and Distributions.
(a) Subject to the rights of the holders of any shares of any series of
preferred stock (or any similar stock) ranking prior and superior to the
Preferred Shares with respect to dividends, the holders of Preferred Shares, in
preference to the holders of Common Stock, par value $.01 (the "Common Stock"),
of the Corporation, and of any other junior stock, shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the first day
of March, June, September and December in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing on the
first Quarterly Dividend Payment Date after the first issuance of a share of
fraction of a share of Preferred Shares, in an amount per share (rounded to the
nearest cent) equal to the greater of (a) $1.00 or (b) subject to the provision
for adjustment hereinafter set forth, 100 times the aggregate per share amount
of all cash dividends, and 100 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions, other than a dividend
payable in shares of Common Stock or a subdivision of the
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outstanding shares of Common Stock (by reclassification or otherwise), declared
on the Common Stock since the immediately preceding Quarterly Dividend Payment
Date or, with respect to the first Quarterly Dividend Payment Date, since the
first issuance of any share of fraction of a share of Preferred Shares. In the
event the Corporation shall at any time after November 6, 1995, declare of pay
any dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise) into a greater or lesser number of
shares of common Stock, then in each such case the amount to which holders of
shares of Preferred Shares were entitled immediately prior to such event under
clause (b) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
(b) The corporation shall declare a dividend or distribution on the
Preferred Shares as provided in paragraph (A) of this Section immediately after
it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock or a subdivision of the outstanding
Common Stock); provided that, in the event no dividend or distribution shall
have been declared on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a
dividend of $1.00 per share on the Preferred Shares shall nevertheless be
payable, out of funds legally available for such purpose, on such subsequent
Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding shares
of Preferred Shares from their date of issue. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the shares of Preferred Shares in an amount
less than the total amount of such dividends at the time accrued and payable on
such shares shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may fix a record date for
the determination of holders of Preferred Shares entitled to receive payment of
a dividend or distribution declared thereon, which record date shall be not more
than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights.
(a) Subject to the provision for adjustment hereinafter set forth, each
preferred share shall entitle the holder thereof to 100 votes on al matters
submitted to a vote of the stockholders of the Corporation. In the event the
Corporation shall at any time after November 6, 1995, declare of pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by
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reclassification or otherwise) into a greater or lesser number of shares of
Common Stock, then in each such case the number of votes per share to which
holders of shares of Preferred Shares were entitled immediately prior to such
event shall be adjusted by multiplying such number by a fraction, the numerator
of which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
(b) Except as otherwise provided herein or by law, the holders of Preferred
Shares and the holders of Common Stock and any other capital stock of the
Corporation having general voting rights shall vote together as one class on all
matters submitted to a vote of share holders of the Corporation.
(c) Except as set forth herein by law, holders of Preferred Shares shall
have no special voting rights and their consent shall not be required (except to
the extent they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
Section 4. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or distributions
payable on the Preferred Shares as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions ,
whether or not declared, on shares of Preferred Shares outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Preferred Shares;
(ii) declare or pay dividends, or make any other distributions, on any
shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Preferred Shares, except
dividends paid ratably on the Preferred Shares and all such parity stock on
which dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares
of any stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Preferred Shares; provided, however, that
the Corporation amy at any time redeem, purchase or otherwise acquire
shares of any such junior stock in exchange for shares of any stock of the
Corporation ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Preferred Shares; or
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<PAGE>
(iv) redeem or purchase or otherwise acquire for consideration any
Preferred Shares, or any stock ranking on a parity with the Preferred
Shares, except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors, after consideration
of the respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective
series or classes.
(b) The corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any Preferred Shares purchased or otherwise
acquired by the corporation in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued shares of preferred stock and
may be reissued as part of a new series of preferred stock subject to the
conditions and restrictions on issuance set forth herein, in the Articles of
Incorporation, or in any other certificate of designation creating a series of
preferred stock or any similar stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be made (1)
to the holders of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the PReferred Shares unless, prior
thereto, the holders of Preferred Shares shall have received the greater of (i)
$100 per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment, or
(ii) an aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount to be distributed
per share to holders of Common Stock, or (2) to the holders of stock ranking on
a parity (either as to dividends or upon liquidation, dissolution or winding up)
with the Preferred Shares, except distributions made ratably on the Preferred
Shares and all such parity stock in proportion to the total amounts to which the
holders of all such shares are entitled upon such liquidation, dissolution or
winding up. In the event the Corporation shall at any time after November 6,
1995, declare or pay any dividend on the Common Stock payable in shares of
common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise) into a
greater or lesser number of shares of Common Stock, then in each such case the
aggregate amount to which holders of shares of Preferred Shares were entitled
immediately prior to such event under clause (1)(ii)
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of the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Preferred Shares shall at the same time be similarly exchanged or changed into
an amount per share, subject to the provision for adjustment hereinafter set
forth, equal to 100 times the aggregate amount of stock, securities, cash and/or
any other property (payable in kind), as the case may be, into which or for
which each share of Common Stock is changed or exchanged. In the event the
Corporation shall at any time after November 6, 1995, declare or pay any
dividend on the common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise) into a greater or lesser number of
shares of common Stock, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of PReferred
Shares shall be adjusted by multiplying such amount by a fraction, the numerator
of which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Preferred Shares shall not be
redeemable.
Section 9. Rank. The Preferred Shares shall rank, with respect to the
payment of dividends and the distribution of assets, junior to all series of any
other class of the Corporation's preferred stock.
Section 10. Fractional Shares. Preferred Shares may be issued in fractions
of a share which are integral multiples of one one-hundredth of a share which
shall entitle the holder , in proportion to such holder's fractional shares, to
receive dividends, participate in distributions and to have the benefit of all
other rights of holders of Preferred Shares.
Section 11. Amendment. The Articles of Incorporation of the Corporation
shall not be amended in any manner which would materially alter or change the
powers, preferences or rights of the Preferred Shares so as to affect them
adversely without the affirmative vote of the holders of at least two-thirds of
the outstanding shares of Preferred Shares, voting together as a single class.
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IN WITNESS WHEREOF, I have subscribed my name this 25th day of October,
1995.
CURATIVE TECHNOLOGIES, INC.
By /s/ John C. Prior
---------------------------
John C. Prior
Vice President, Finance,
Chief Financial Officer
and Secretary
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<PAGE>
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
CURATIVE TECHNOLOGIES, INC.
The undersigned, John C. Prior, Secretary of Curative Technologies, Inc., a
Minnesota Corporation, hereby certifies that the following resolution was duly
adopted by the shareholders and the board of directors of the corporation
pursuant to Chapter 302A of the Minnesota Business Corporation Act and that such
resolution has not been subsequently modified or rescinded:
NAME CHANGE
RESOLVED, that Article 1 of the Articles of Incorporation of the
corporation is hereby amended in its entirety to read as follows:
ARTICLE 1. NAME
The name of the corporation is "Curative Health Services, Inc.".
IN WITNESS WHEREOF, the undersigned, the Secretary of Curative
Technologies, Inc., being duly authorized on behalf of Curative Technologies,
Inc., has executed this document as of May 31, 1996.
/s/ John C. Prior
-------------------------
John C. Prior
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AMENDED AND RESTATED BYLAWS
OF
CURATIVE HEALTH SERVICES, INC.
Effective June 24, 1996
ARTICLE I.
OFFICES, CORPORATE SEAL
Section 1.01. Registered Office. The registered office of the Corporation
in Minnesota shall be that set forth in the articles of incorporation or in the
most recent amendment of the articles of incorporation or resolution of the
directors filed with the secretary of state of Minnesota changing the registered
office.
Section 1.02. Other Offices. The Corporation may have such other offices,
within or without the state of Minnesota, as the directors shall, from time to
time, determine.
Section 1.03. Corporate Seal. The Corporation shall have no seal.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
Section 2.01. Annual Meetings.
(a) A meeting of the stockholders shall be held annually (the "annual
meeting") on such date and at such place and time as the board of directors
shall by resolution establish.
(b) At the annual meeting the stockholders, voting as provided in the
articles of incorporation and these bylaws, shall elect qualified successors for
directors who serve for an indefinite term or whose terms have expired or are
due to expire within six months after the date of the meeting and shall transact
such other business which is properly brought before them.
(c) To be properly brought before an annual meeting of stockholders,
business must be (1) specified in the notice of the meeting, (2) directed to be
brought before the meeting by the board of directors or (3) proposed at the
meeting by a stockholder who (i) was a stockholder of record at the time of
giving of notice provided for in these Bylaws, (ii) is entitled to vote at the
meeting and (iii) gives prior notice of the matter, which must otherwise be a
proper matter for stockholder action, in the manner herein provided. For
business to be properly brought before an annual meeting by a stockholder, the
stockholder must give written notice to the secretary of the Corporation so as
to be received at the principal executive offices of the Corporation at least 60
days before the date that is one year after the prior year's
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annual meeting. Such notice shall set forth (1) the name and record address of
the stockholder and of the beneficial owner, if any, on whose behalf the
proposal will be made, (2) the class and number of shares of the Corporation
owned by the stockholders and beneficially owed by the beneficial owner, if any,
on whose behalf the proposal will be made, (3) a brief description of the
business desired to be brought before the meeting and the reasons for conducting
such business and (4) any material interest in such business. The chairman of
the meeting may refuse to acknowledge any proposed business not made in
compliance with the foregoing procedure.
Section 2.02 Special Meetings. Special meetings of the stockholders may be
held at any time and for any purpose and may be called by the chief executive
officer, the chief financial officer, two or more directors or by a stockholder
or stockholders holding 10% or more of the voting power of all shares entitled
to vote, except that a special meeting for the purpose of considering any action
to directly or indirectly facilitate or affect a business combination, including
any action to change or otherwise affect the composition of the board of
directors for that purpose, must be called by 25% or more of the voting power of
all shares entitled to vote. A stockholder or stockholders holding the requisite
percentage of the voting power of all shares entitled to vote may demand a
special meeting of the stockholders by written notice of demand given to the
chief executive officer or chief financial officer of the Corporation and
containing the purposes of the meeting. Within 30 days after receipt of demand
by one of those officers, the board of directors shall cause a special meeting
of stockholders to be called and held on notice no later than 90 days after
receipt of the demand, at the expense of the Corporation. Special meetings shall
be held on the date and at the time and place fixed by the chief executive
officer, chief financial officer or the board of directors, except that a
special meeting called by or at the demand of a stockholder or stockholders
shall be held in the county where the principal executive office is located. The
business transacted at a special meeting shall be limited to the purposes as
stated in the notice of the meeting.
Section 2.03. Quorum, Adjourned Meetings. The holders of a majority voting
power of the shares entitled to vote shall constitute a quorum for the
transaction of business at any annual or special meeting. In case a quorum shall
not be present at a meeting, the meeting may be adjourned from time to time
without notice other than announcement at the time of adjournment of the date,
time and place of the adjourned meeting.
Section 2.04. Voting. At each meeting of the stockholders every stockholder
having the right to vote shall be entitled to vote either in person or by proxy.
Each stockholder, unless the articles of incorporation or statutes provide
otherwise, shall have one vote for each share having voting power registered in
such stockholder's name on the books of the corporation. Jointly owned shares
may
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be voted by any joint owner unless the Corporation receives written notice
from any one of them denying the authority of that person to vote those shares.
Upon the demand of any stockholder, the vote upon any question before the
meeting shall be by ballot. All questions shall be decided by the affirmative
vote of the holders of a majority of the voting power of shares entitled to vote
and represented at the meeting at the time of the vote except if otherwise
required by statute, the articles of incorporation, or these bylaws.
Section 2.05. Record Date. The board of directors may fix a date, not
exceeding 60 days preceding the date of any meeting of stockholders, as a record
date for the determination of the stockholders entitled to notice of, and to
vote at, such meeting, notwithstanding any transfer of shares on the books of
the Corporation after any record date so fixed. If the board of directors fails
to fix a record date for determination of the stockholders entitled to notice of
and to vote at, any meeting of stockholders, the record date shall be the 20th
day preceding the date of such meeting.
Section 2.06 Notice of Meetings. There shall be mailed to each stockholder,
shown by the books of the Corporation to be a holder of record of voting shares,
at his address as shown by the books of the Corporation, a notice setting out
the date, time and place of each annual meeting and each special meeting, except
where the meeting is an adjourned meeting and the date, time and place of the
meeting were announced at the time of adjournment, which notice shall be mailed
at least 20 days, and not more than 60 days, prior thereto. Every notice of any
special meeting called pursuant to section 2.02 hereof shall state the purpose
or purposes for which the meeting has been called, and the business transacted
at all special meetings shall be confined to the purposes stated in the notice.
Section 2.07. Waiver of Notice. Notice of any annual or special meeting may
be waived by any stockholder either before, at or after such meeting orally or
in writing signed by such stockholder or a representative entitled to vote the
shares of such stockholder. A stockholder, by his attendance at any meeting of
stockholders, shall be deemed to have waived notice of such meeting, except
where the stockholder objects at the beginning of the meeting to the transaction
of business because the meeting is not lawfully called or convened, or objects
before a vote on an item of business because the item may not lawfully be
considered at that meeting and does not participate in the consideration of the
item at that meeting.
Section 2.08. Conduct of Meetings. The highest ranking officer of the
Corporation who is present shall call to order and act as chairman of any
meeting of the stockholders. In the absence of the secretary of the Corporation,
the secretary of the meeting shall be such person as the chairman of the meeting
appoints. The chairman of the meeting shall have the right and authority to
prescribe such rules,
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regulations and procedures and to do all such acts as, in the judgment of such
chairman, are appropriate for conduct of the meeting. To the extent not
prohibited by law, such rules, regulations or procedures may include, without
limitation, establishment of (1) an agenda or order of business for the meeting
and the method by which business may be proposed, (2) rules and procedures for
maintaining order at the meeting and the safety of those present, (3)
limitations on attendance at or participation in the meeting to stockholders of
record of the corporation, their duly authorized proxies or such other persons
as the chairman of the meeting shall determine, (4) restrictions on entry to the
meeting after the time fixed for the commencement thereof and (5) limitations on
the time allotted to questions or comments by participants. Any proposed
business contained in the notice of a regular meeting is deemed to be on the
agenda and no further motions or other actions shall be required to bring such
proposed business up for consideration. Unless and to the extent otherwise
determined by the chairman of the meeting, it shall not be necessary to follow
Robert's Rules of Order or any other rules of parliamentary procedure at the
meeting of the stockholders. Following completion of the business of the meeting
as determined by the chairman of the meeting, the chairman of the meeting shall
have the exclusive authority to adjourn the meeting.
Section 2.09. Nomination of Directors. Only persons nominated in accordance
with the following procedures shall be eligible for election by stockholders as
directors. Nominations of person for election as directors may be made at a
meeting of stockholders called for the purpose of electing directors (a) by or
at the direction of the board of directors or (b) by a stockholder who (i) was a
stockholder of record at the time of giving of notice provided for in these
Bylaws, (ii) is entitled to vote at the meeting and (iii) gives prior notice of
the nomination, in the manner herein provided. For a nomination to be properly
made by a stockholder, the stockholder must give written notice to the secretary
of the Corporation so as to be received at the principal executive offices of
the Corporation at least 60 days before the date that is one year after the
prior years meeting. Such notice shall set forth (a) as to the stockholder
giving the notice: (1) the name and record address of the stockholder and of the
beneficial owner, if any, on whose behalf the nomination will be made and (2)
the class and number of shares of the Corporation owned by the stockholder and
beneficially owned by the beneficial owner, if any, on whose behalf the
nomination will be made; and (b) as to each person the stockholder proposes to
nominate: (1) the name, age, business address and residence address of the
person, (2) the principal occupation or employment of the person and (3) the
class and number of shares of the Corporation owned by the person. The chairman
of the meeting may refuse to acknowledge any proposed nomination not made in
compliance with the foregoing procedure.
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ARTICLE III.
DIRECTORS
Section 3.01. General Powers. The business and affairs of the Corporation
shall be managed by or under the authority of the board of directors, except as
otherwise permitted by statute.
Section 3.02. Number, Qualification and Term of Office. Until changed as
provided in these bylaws, the Corporation shall have six directors. The number
of directors shall be increased or decreased from time to time by resolution of
the board of directors or the stockholders. Directors need not be stockholders.
Each of the directors shall hold office until the annual meeting of stockholder
next held after such director's election and until such director's successor
shall have been elected and shall qualify, or until the earlier death,
resignation, removal, or disqualification of such director.
Section 3.03. Board Meetings. Meetings of the board of directors may be
held from time to time at such time and place within or without the state of
Minnesota as may be designated in the notice of such meeting.
Section 3.04. Calling Meetings; Notice. Meetings of the board of directors
may be called by the chief executive officer by giving at least twenty-four
hours' notice, or by any other director by giving at least five days' notice, of
the date, time and place thereof to each director by mail, telephone, telegram
or in person. If the day or date, time and place of a meeting of the board of
directors has been announced at a previous meeting of the board, no notice is
required. Notice of an adjourned meeting of the board of directors need not be
given other than by announcement at the meeting at which adjournment is taken.
Section 3.05. Waiver of Notice. Notice of any meeting of the board of
directors may be waived by any director either before, at, or after such meeting
orally or in a writing signed by such director. A director, by his attendance at
any meeting of the board of directors, shall be deemed to have waived notice of
such meeting, except where the director objects at the beginning of the meeting
to the transaction of business because the meeting is not lawfully called or
convened and does not participate thereafter in the meeting.
Section 3.06. Quorum and Vote at Meetings. A majority of the directors
holding office immediately prior to a meeting of the board of directors shall
constitute a quorum for the transaction of business at such meeting. A vote 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 if otherwise required by
statute, the articles of incorporation or these bylaws.
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Section 3.07. Absent Directors. A director may give advance written consent
or opposition to a proposal to be acted on at a meeting of the board of
directors. If such director is not present at the meeting, consent or opposition
to a proposal does not constitute presence for purposes of determining the
existence of a quorum, but consent or opposition shall be counted as a vote in
favor of or against the proposal and shall be entered in the minutes or other
record of action at the meeting, if the proposal acted on at the meeting is
substantially the same or has substantially the same effect as the proposal to
which the director has consented or objected.
Section 3.08. Conference Communications. Any or all directors may
participate in any meeting of the board of directors, or of any duly constituted
committee thereof, by any means of communication through which the directors may
simultaneously hear each other during such meeting. For the purposes of
establishing a quorum and taking any action at the meeting, such directors
participating pursuant to this section 3.08 shall be deemed present in person at
the meeting; and the place of the meeting shall be the place of origination of
the conference telephone conversation or other comparable communication
technique.
Section 3.09. Vacancies; Newly Created Directorships. Vacancies on the
board of directors of this Corporation occurring by reason of death,
resignation, removal or disqualification shall be filled for the unexpired term
by a majority of the remaining directors of the board although less than a
quorum; newly created directorships resulting from an increase in the authorized
number of directors by action of the board of directors may be filled by
majority vote of the directors serving at the time of such increase; and each
director elected pursuant to this section 3.09 shall be a director until such
director's successor is elected by the stockholders at their next annual or
special meeting.
Section 3.10. Removal. Any or all of the directors may be removed from
office at any time, but only for cause, by the affirmative vote of the
stockholders holding a majority of the shares entitled to vote at an election of
directors. In the event that the entire board or any one or more directors be so
removed by the stockholders, new directors shall be selected at the same
meeting. A director named by the board of directors to fill a vacancy may be
removed from office at any time, with or without cause, by the affirmative vote
of a majority of the remaining directors if the stockholders have not elected
directors in the interim between the time of the appointment to fill such
vacancy and the time of the removal.
Section 3.11. Committees. A resolution approved by the affirmative vote of
a majority of the board of directors may establish committees having the
authority of the board in the management of the business of the Corporation to
the extent provided in the resolution. A committee shall consist of one or more
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persons, who need not be directors, appointed by affirmative vote of a majority
of the directors present. Committees (other than special litigation committees)
are subject to the direction and control of, and vacancies in the membership
thereof shall be filled by, the board of directors. A majority of the members of
the committee present at a meeting is a quorum for the transaction of business
The Corporation shall have an Audit Committee, a majority of the members of
which shall be independent directors.
Section 3.12. Written Action. Any action which might be taken at a meeting
of the board of directors, or any duly constituted committee thereof, may be
taken without a meeting if done in writing and signed by all of the directors or
committee members, unless the articles of incorporation provide otherwise and
the action need not be approved by the stockholders.
Section 3.13. Compensation. Directors who are not salaried officers of this
Corporation shall receive such fixed sum per meeting attended or such fixed
annual sum as shall be determined, from time to time, by resolution of the board
of directors. The board of directors may, by resolution, provide that all
directors shall receive their expenses, if any, of attendance at meetings of the
board of directors or any committee thereof. Nothing herein contained shall be
construed to preclude any director from serving this Corporation in any other
capacity and receiving proper compensation therefor.
ARTICLE IV.
OFFICERS
Section 4.01. Number. The officers of the Corporation shall consist of a
chairman of the board (if one is elected by the board), a chief executive
officer, one or more vice presidents (if desired by the board), a chief
financial officer, a secretary and such other officers and agents as may, from
time to time, be elected by the board of directors. Any number of offices may be
held by the same person.
Section 4.02 Election, Term of Office and Qualifications. The board of
directors shall elect or appoint, by resolution approved by the affirmative vote
of a majority of the directors present, from within or without their number, the
chief executive officer, chief financial officer and such other officers as may
be deemed advisable, each of whom shall have the powers, rights, duties,
responsibilities and terms of office provided for in these bylaws or a
resolution of the board of directors not inconsistent therewith. The chief
executive officer and all other officers who may be directors shall continue to
hold office until the election and qualification of their successors,
notwithstanding an earlier termination of their directorship.
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Section 4.03. Removal and Vacancies. Any officer may be removed from his
office by the board of directors at any time, with or without cause. Such
removal, however, shall be without prejudice to the contract rights of the
person so removed. If there be a vacancy in an office of the Corporation by
reason of death, resignation or otherwise, such vacancy shall be filled for the
unexpired term by the board of directors.
Section 4.04. Chairman of the Board. The chairman of the board, if one is
elected, shall preside at all meetings of the stockholders and directors and
shall have such other duties as may be prescribed, from time to time, by the
board of directors.
Section 4.05. Chief Executive Officer. The chief executive officer shall
have general active management of the business of the Corporation. In the
absence of the chairman of the board, he shall preside at all meetings of the
stockholders and directors. He shall see that all orders and resolutions of the
board of directors are carried into effect. He shall execute and deliver, in the
name of the Corporation, any deeds, mortgages, bonds, contracts or other
instruments pertaining to the business of the Corporation unless the authority
to execute and deliver is required by law to be exercised by another person or
is expressly delegated by the articles of incorporation or bylaws or by the
board of directors to some other officer or agent of the Corporation. He shall
maintain records of and, whenever necessary, certify all proceedings of the
board of directors and the stockholders, and in general, shall perform all
duties usually incident to the office of the chief executive officer. He shall
have such other duties as may, from time to time, be prescribed by the board of
directors.
Section 4.06. Vice President. Each vice president, if one or more is
elected, shall have such powers and shall perform such duties as prescribed by
the board of directors or by the chief executive officer. In the event of the
absence or disability of the chief executive officer, the vice president(s)
shall succeed to his power and duties in the order designated by the board of
directors.
Section 4.07. Secretary. The secretary shall be secretary of and shall
attend all meetings of the stockholders and board of directors and shall record
all proceedings of such meetings in the minute book of the Corporation. He shall
give proper notice of meetings of stockholders and directors. He shall perform
such other duties as may, from time to time, be prescribed by the board of
directors or by the chief executive officer.
Section 4.08. Chief Financial Officer. The chief financial officer shall
keep accurate financial records for the Corporation. He shall deposit all
moneys, drafts and checks in the name of, and to the credit of, the Corporation
in such banks and depositories as the board of directors shall, from time to
time, designate. He
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shall have power to endorse for deposit all notes, checks and drafts received by
the Corporation. He shall disburse the funds of the Corporation, as ordered by
the board of directors, making proper vouchers therefor. He shall render to the
chief executive officer and the directors, whenever requested, an account of all
his transactions as chief financial officer and of the financial conditions of
the Corporation, and shall perform such other duties as may, from time to time,
be prescribed by the board of directors or by the chief executive officer.
Section 4.09. Compensation. The officers of the Corporation shall receive
such compensation for their services as may be determined, from time to time, by
resolution of the board of directors.
ARTICLE V.
SHARES AND THEIR TRANSFER
Section 5.01. Certificates for Shares. All shares of the Corporation shall
be certificated shares. Each holder of shares of the Corporation shall be
entitled to a certificate for shares, in such form as the board of directors
may, from time to time, approve. Certificates shall be signed by an authorized
representative of the Corporation's transfer agent. A certificate representing
shares of the Corporation shall contain on its face the information required by
Minnesota Statutes, Section 302A.417, subd. 4. A certificate representing shares
issued by this Corporation shall set forth upon the face or back of the
certificate, or shall state that the Corporation will furnish to any stockholder
upon request and without charge, a full statement of the designations,
preferences, limitations and relative rights of the shares of each class or
series authorized to be issued, so far as they have been determined, and the
authority of the board to determine relative rights and preferences of
subsequent classes or series. All matters dealing with the transfer of shares
and the loss of certificates shall be dealt with in the resolution of the board
of directors appointing this Corporation's transfer agent.
ARTICLE VI.
DISTRIBUTIONS, RECORD DATE
Section 6.01. Distributions. Subject to the provisions of the articles of
incorporation, of these bylaws, and of law, the board of directors may authorize
and cause the Corporation to make distributions whenever, and in such amounts or
forms as, in its opinion, are deemed advisable.
Section 6.02. Record Date. Subject to any provisions of the articles of
incorporation, the board of directors may fix a date not exceeding 120 days
preceding the date fixed for the payment of any distribution as the record date
for the determination of the stockholders entitled to receive payment of the
distribution and, in such case, only stockholders of record on the date so fixed
shall be entitled to
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receive payment of such distribution notwithstanding any transfer of shares on
the books of the Corporation after the record date.
ARTICLE VII.
BOOKS AND RECORDS
Section 7.01. Share Register. The board of directors of the Corporation
shall cause to be kept at its principal executive office, or at another place or
places within the United Stated determined by the board:
(a) a share register not more than one year old, containing the names and
addresses of the stockholder and the number and classes of shares held
by each stockholder; and
(b) a record of the dates on which certificates or transaction statements
representing shares were issued.
Section 7.02. Other Books and Records. The board of directors shall cause
to be kept at its principal executive office, or if its principal executive
office is not in Minnesota, shall make available at its Minnesota registered
office within ten days after receipt by an officer of the Corporation of a
written demand for them made by a stockholder or other person authorized by the
Minnesota Statutes, Section 302A.461, original or copies of:
(a) records of all proceedings of stockholders for the last three years;
(b) records of all proceedings of the board for the last three years;
(c) its articles of incorporation and all amendments currently in effect;
(d) its bylaws and all amendments currently in effect;
(e) financial statements required by the Minnesota Statutes, Section
302A.463 and the financial statements for the most recent interim
period prepared in the course of the operation of the Corporation for
distribution to the stockholders or to a governmental agency as a
matter of public record;
(f) reports made to stockholders generally within the last three years;
(g) a statement of the names and usual business addresses of its directors
and principal officers; and
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(h) any stockholder voting or control agreements of which the Corporation
is aware.
ARTICLE VIII.
INDEMNIFICATION OF CERTAIN PERSONS
Section 8.01. The Corporation shall indemnify all officers and directors of
the Corporation, for such expenses and liabilities, in such manner, under such
circumstances and to such extent as permitted by Minnesota Statutes, Section
302A.521, as now enacted or hereafter amended. Unless otherwise approved by the
board of directors or required by law, the Corporation shall not indemnify any
employee or agent of the Corporation who is not otherwise entitled to
indemnification pursuant to the prior sentence of this section 8.01.
ARTICLE IX.
AMENDMENTS
Section 9.01. These bylaws may be amended or altered by a vote of the
majority of the whole board of directors at any meeting. Such authority of the
board of directors is subject to the power of the stockholders, exercisable in
the manner provided in the Minnesota Statutes, Section 302A.181, subd. 3, to
adopt, amend, or repeal bylaws adopted, amended, or repealed by the board of
directors. The board of directors shall not in any case adopt, amend or repeal a
bylaw fixing a quorum for meetings of stockholders, prescribing procedures for
removing directors or filling vacancies in the board of directors, or fixing the
number of directors or their classifications, qualifications or terms of office,
but may adopt or amend a bylaw to increase the number of directors.
ARTICLE X.
SECURITIES OF OTHER CORPORATIONS
Section 10.01. Voting Securities Held by the Corporation. Unless otherwise
ordered by the board of directors, the chief executive officer shall have full
power and authority on behalf of the Corporation (a) to attend any meeting of
security holders of other corporations in which the Corporation may hold
securities and to vote such securities on behalf of this Corporation; (b) to
execute any proxy for such meeting on behalf of the Corporation; or (c) to
execute a written action in lieu of a meeting of such other corporation on
behalf of this Corporation. At such meeting, the chief executive officer shall
possess and may exercise any and all rights and powers incident to the ownership
of such securities that the Corporation possesses. The board of directors may,
from time to time, grant such power and authority to one or more persons and may
remove such power and authority from the chief executive officer or any other
person or persons.
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Section 10.02. Purchase and Sale of Securities. Unless otherwise ordered by
the board of directors, the chief executive officer shall have full power and
authority on behalf of the Corporation to purchase, sell, transfer or encumber
any and all securities of any other corporation owned by the Corporation, and
may execute and deliver such documents as may be necessary to effectuate such
purchase, sale, transfer or encumbrance. The board of directors may, from time
to time, confer like powers upon any other person or persons.
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