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Exhibit 3.4
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YOUNG AMERICA HOLDINGS, INC.
Incorporated under the laws
of the State of Minnesota
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AMENDED AND RESTATED
BY-LAWS
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As adopted on April 7 , 1998
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AMENDED AND RESTATED
BY-LAWS OF
YOUNG AMERICA HOLDINGS, INC.
ARTICLE I
OFFICES
1.1. Registered Office.
The registered office of Young America Holdings, Inc. (the "Corporation"),
in the State of Minnesota, shall be at 000 Xxxxx Xxxx, Xxxxx Xxxxxxx, Xxxxxxxxx
00000.
1.2. Other Offices.
The Corporation may also have an office or offices at any other place or
places within or outside the State of Minnesota.
ARTICLE II
MEETING OF STOCKHOLDERS; STOCKHOLDERS'
CONSENT IN LIEU OF MEETING
2.1. Annual Meetings.
The annual meeting of the stockholders for the election of directors, and
for the transaction of such other business as may properly come before the
meeting, shall be held at such place, date and hour as shall be fixed by the
Board of Directors (the "Board") and designated in the notice or waiver of
notice thereof, except that no annual meeting need be held if all actions,
including the election of directors, required by the Business Corporation Act of
the State of Minnesota (the "Minnesota Statute") to be taken at a stockholders'
annual meeting are taken by written consent in lieu of meeting pursuant to
Section 2.10.
2.2. Special Meetings.
A special meeting of the stockholders for any purpose or purposes may be
called as provided within the Minnesota Statute.
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2.3. Notice of Meetings.
Except as otherwise required by statute, the Articles of Incorporation of
the Corporation (the "Articles") or these By-laws, notice of each annual or
special meeting of the stockholders shall be given to each stockholder of record
entitled to vote at such meeting not less than 10 nor more than 60 days before
the day on which the meeting is to be held, by delivering written notice thereof
to him personally, or by mailing a copy of such notice, postage prepaid,
directly to him at his address as it appears in the records of the Corporation,
or by transmitting such notice thereof to him, her or it at such address by
telegraph, cable or other telephonic transmission. Every such notice shall state
the place, the date and hour of the meeting, and, in case of a special meeting,
the purpose or purposes for which the meeting is called. Notice of any meeting
of stockholders shall not be required to be given to any stockholder who shall
attend such meeting in person or by proxy, or who shall, in person or by
attorney thereunto authorized, waive such notice in writing, either before or
after such meeting. Except as otherwise provided in these By-laws, neither the
business to be transacted at, nor the purpose of, any meeting of the
stockholders need be specified in any such notice or waiver of notice. Notice of
any adjourned meeting of stockholders shall not be required to be given, except
when expressly required by law.
2.4. Quorum.
At each meeting of the stockholders, except where otherwise provided by
the Articles or these By-laws, the holders of a majority of the issued and
outstanding shares of capital stock of the Corporation entitled to vote at such
meeting, present in person or represented by proxy, shall constitute a quorum
for the transaction of business. In the absence of a quorum, a majority in
interest of the stockholders present in person or represented by proxy and
entitled to vote, or, in the absence of all the stockholders entitled to vote,
any officer entitled to preside at, or act as secretary of, such meeting, shall
have the power to adjourn the meeting from time to time, until stockholders
holding the requisite amount of stock to constitute a quorum shall be present or
represented. At any such adjourned meeting at which a quorum shall be present,
any business may be transacted which might have been transacted at the meeting
as originally called.
2.5. Organization.
(a) Unless otherwise determined by the Board, at each meeting of the
stockholders, one of the following shall act as chairman of the meeting and
preside thereat, in the following order of precedence:
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(i) the Chairman;
(ii) the President;
(iii) any director, officer or stockholder of the Corporation
designated by the Board to act as chairman of such meeting and to preside
thereat if the Chairman or the President shall be absent from such
meeting; or
(iv) a stockholder of record who shall be chosen chairman of such
meeting by a majority in voting interest of the stockholders present in
person or by proxy and entitled to vote thereat.
(b) The Secretary or, if he or she shall be presiding over such meeting in
accordance with the provisions of this Section 2.5 or if he or she shall be
absent from such meeting, the person (who shall be an Assistant Secretary, if an
Assistant Secretary has been appointed and is present) whom the chairman of such
meeting shall appoint, shall act as secretary of such meeting and keep the
minutes thereof.
2.6. Order of Business.
The order of business at each meeting of the stockholders shall be
determined by the chairman of such meeting, but (subject to applicable law) such
order of business may be changed by a majority in voting interest of those
present in person or by proxy at such meeting and entitled to vote thereat.
2.7. Voting.
Except as otherwise provided by law, the Articles or these By-laws, at
each meeting of the stockholders, every stockholder of the Corporation shall be
entitled to one vote in person or by proxy for each share of Common Stock of the
Corporation held by him, her or it and registered in his name on the books of
the Corporation on the date fixed pursuant to Section 6.7 as the record date for
the determination of stockholders entitled to vote at such meeting. Persons
holding stock in a fiduciary capacity shall be entitled to vote the shares so
held. A person whose stock is pledged shall be entitled to vote, unless, in the
transfer by the pledgor on the books of the Corporation, he, she or it has
expressly empowered the pledgee to vote thereon, in which case only the pledgee
or his proxy may represent such stock and vote thereon. If shares or other
securities having voting power stand in the record of two or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants in common,
tenants by the entirety or otherwise, or if two or more persons have the same
fiduciary relationship respecting the same shares, unless the Secretary shall be
given written notice to the contrary and
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furnished with a copy of the instrument or order appointing them or creating the
relationship wherein it is so provided, their acts with respect to voting shall
have the following effect:
(i) if only one votes, his act binds all;
(ii) if more than one votes, the act of the majority so voting binds
all; and
(iii) if more than one votes, but the vote is evenly split on any
particular matter, such shares shall be voted in the manner provided by
law.
If the instrument so filed shows that any such tenancy is held in unequal
interests, a majority or even-split for the purposes of this Section 2.7 shall
be a majority or even-split in interest. The Corporation shall not vote directly
or indirectly any share of its own capital stock. Any vote of stock may be given
by the stockholder entitled thereto in person or by his proxy appointed by an
instrument in writing, subscribed by such stockholder or by his attorney
thereunto authorized, delivered to the secretary of the meeting; provided ,
however, that no proxy shall be voted after three years from its date, unless
said proxy provides for a longer period. At all meetings of the stockholders,
all matters (except where other provision is made by law, the Articles or these
By-laws) shall be decided by the vote of a majority in interest of the
stockholders present in person or by proxy at such meeting and entitled to vote
thereon, a quorum being present. Unless demanded by a stockholder present in
person or by proxy at any meeting and entitled to vote thereon, the vote on any
question need not be by ballot. Upon a demand by any such stockholder for a vote
by ballot upon any question, such vote by ballot shall be taken. On a vote by
ballot, each ballot shall be signed by the stockholder voting, or by his proxy,
if there be such proxy, and shall state the number of shares voted.
2.8. Inspection.
The chairman of the meeting may at any time appoint one or more inspectors
to serve at any meeting of the stockholders. Any inspector may be removed, and a
new inspector or inspectors appointed, by the Board at any time. Such inspectors
shall decide upon the qualifications of voters, accept and count votes, declare
the results of such vote, and subscribe and deliver to the secretary of the
meeting a certificate stating the number of shares of stock issued and
outstanding and entitled to vote thereon and the number of shares voted for and
against the question, respectively. The inspectors need not be stockholders of
the Corporation, and any director or officer of the Corporation may be an
inspector on any question other than a vote for or against his election to any
position with the Corporation or on any other matter in which he or she may be
directly
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interested. Before acting as herein provided, each inspector shall subscribe an
oath faithfully to execute the duties of an inspector with strict impartiality
and according to the best of his ability.
2.9. List of Stockholders.
It shall be the duty of the Secretary or other officer of the Corporation
who shall have charge of its stock ledger to prepare and make, at least 10 days
before every meeting of the stockholders, a complete list of the stockholders
entitled to vote thereat, 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 any such meeting, during ordinary business hours, for
a period of at least 10 days prior to such meeting, either at a place within the
city where such meeting is to be held, which place shall be specified in the
notice of the meeting or, if not so specified, at the place where the meeting is
to be held. Such list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
2.10. Stockholders' Consent in Lieu of Meeting.
Any action required by the Minnesota Statute to be taken at any annual or
special meeting of the stockholders of the Corporation, or any action which may
be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, by a consent in
writing, as permitted by the Minnesota Statute.
ARTICLE III
BOARD OF DIRECTORS
3.1. General Powers.
The business, property and affairs of the Corporation shall be managed by
or under the direction of the Board, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by law or by the
Articles directed or required to be exercised or done by the stockholders.
3.2. Number and Term of Office.
The number of directors shall be fixed from time to time by the Board.
Directors need not be stockholders. Each director shall hold office until his
successor is elected and qualified,
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or until his earlier death or resignation or removal in the manner hereinafter
provided.
3.3. Election of Directors.
At each meeting of the stockholders for the election of directors at which
a quorum is present, the persons receiving the greatest number of votes, up to
the number of directors to be elected, of the stockholders present in person or
by proxy and entitled to vote thereon shall be the directors; provided, however,
that for purposes of such vote no stockholder shall be allowed to cumulate his
votes. Unless an election by ballot shall be demanded as provided in Section
2.7, election of directors may be conducted in any manner approved at such
meeting.
3.4. Resignation, Removal and Vacancies.
(a) Any director may resign at any time by giving written notice to the
Board, the Chairman, the President or the Secretary. Such resignation shall take
effect at the time specified therein or, if the time be not specified, upon
receipt thereof; unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
(b) Except as otherwise provided in the Stockholders' Agreement dated as
of November 25, 1997 among the Corporation and the other parties named therein
(as such agreement may from time to time be amended, restated or supplanted, the
"Stockholders' Agreement), any director or the entire Board may be removed, with
or without cause, at any time by vote of the holders of a majority of the shares
then entitled to vote at an election of directors or by written consent of the
stockholders pursuant to Section 2.10.
(c) Except as otherwise provided in the Stockholders' Agreement, vacancies
occurring on the Board for any reason may be filled by vote of the stockholders
or by the stockholders' written consent pursuant to Section 2.10, or by vote of
the Board or by the directors' written consent pursuant to Section 3.6. If the
number of directors then in office is less than a quorum, such vacancies may be
filled by a vote of a majority of the directors then in office.
3.5. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of
directors, the Board shall meet for the purpose of organization and the
transaction of other business, unless it shall have transacted all such business
by written consent pursuant to Section 3.6.
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(b) Other Meetings. Other meetings of the Board shall be held at such
times and places as the Board, the Chairman, the President or any director shall
from time to time determine.
(c) Notice of Meetings. Notice shall be given to each director of each
meeting, including the time, place and purpose of such meeting. Notice of each
such meeting shall be mailed to each director, addressed to him or her at his or
her residence or usual place of business, at least two days before the date on
which such meeting is to be held, or shall be sent to him or her at such place
by telegraph, cable, wireless or other form of recorded communication, or be
delivered personally or by telephone not later than the day before the day on
which such meeting is to be held, but notice need not be given to any director
who shall attend such meeting. A written waiver of notice, signed by the person
entitled thereto, whether before or after the time of the meeting stated
therein, shall be deemed equivalent to notice.
(d) Place of Meetings. The Board may hold its meetings at such place or
places within or outside the State of Minnesota as the Board may from time to
time determine, or as shall be designated in the respective notices or waivers
of notice thereof.
(e) Quorum and Manner of Acting. A majority of the total number of
directors, which majority must include at least one BT Director (as defined in
the Stockholders' Agreement), then in office shall be present at any meeting of
the Board in order to constitute a quorum for the transaction of business at
such meeting, and the majority vote of those directors present at any such
meeting at which a quorum is present shall be necessary for the passage of any
resolution or act of the Board, except as otherwise expressly required by law,
the Articles or these By-laws; provided, however, that notwithstanding the
foregoing, at any time after the occurrence of a Trigger Event (as defined in
the Stockholders' Agreement), the affirmative assent of at least one BT Director
(as defined in the Stockholders' Agreement) shall be required for any action
(whether by vote or by written consent) of the Board (or any committee thereof).
In the absence of a quorum for any such meeting, a majority of the directors
present thereat may adjourn such meeting from time to time until a quorum shall
be present.
(f) Organization. At each meeting of the Board, one of the following shall
act as chairman of the meeting and preside thereat, in the following order of
precedence:
(i) the Chairman;
(ii) the President (if a director); or
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(iii) any director designated by a majority of the directors
present.
The Secretary or, in the case of his absence, an Assistant Secretary, if
an Assistant Secretary has been appointed and is present, or any person whom the
chairman of the meeting shall appoint shall act as secretary of such meeting and
keep the minutes thereof.
3.6. Directors' Consent in Lieu of Meeting.
Any action required or permitted to be taken at any meeting of the Board
may be taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed by all
the directors then in office and such consent is filed with the minutes of the
proceedings of the Board.
3.7. Action by Means of Conference Telephone or Similar Communications
Equipment.
Any one or more members of the Board may participate in a meeting of the
Board by means of conference telephone or similar communications equipment by
which all persons participating in the meeting can hear each other, and
participation in a meeting by such means shall constitute presence in person at
such meeting.
3.8. Committees.
Subject to the proviso contained within Section 3.5(e), the Board may, by
resolution or resolutions passed by a majority of the whole Board, designate one
or more committees, each such committee to consist of one or more directors of
the Corporation, which to the extent provided in said resolution or resolutions
shall have and may exercise the powers of the Board in the management of the
business and affairs of the Corporation, such committee or committees to have
such name or names as may be determined from time to time by resolution adopted
by the Board. A majority of all the members of any such committee may determine
its action and fix the time and place of its meetings, unless the Board shall
otherwise provide. Except as otherwise provided in the Stockholders' Agreement,
the Board shall have power to change the members of any such committee at any
time, to fill vacancies and to discharge any such committee, either with or
without cause, at any time.
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ARTICLE IV
OFFICERS
4.1. Executive Officers.
The principal officers of the Corporation shall be a Chairman, if one is
appointed (and any references to the Chairman shall not apply if a Chairman has
not been appointed), a President, a Secretary, and a Treasurer, and may include
such other officers as the Board may appoint pursuant to Section 4.3. Any two or
more offices may be held by the same person.
4.2. Authority and Duties.
All officers, as between themselves and the Corporation, shall have such
authority and perform such duties in the management of the Corporation as may be
provided in these By-laws or, to the extent so provided, by the Board.
4.3. Other Officers.
The Corporation may have such other officers, agents and employees as the
Board may deem necessary, including one or more Assistant Secretaries, one or
more Assistant Treasurers and one or more Vice Presidents, each of whom shall
hold office for such period, have such authority, and perform such duties as the
Board, the Chairman, or the President may from time to time determine. The Board
may delegate to any principal officer the power to appoint and define the
authority and duties of, or remove, any such officers, agents, or employees.
4.4. Term of Office, Resignation and Removal.
(a) All officers shall be elected or appointed by the Board and shall hold
office for such term as may be prescribed by the Board. Each officer shall hold
office until his successor has been elected or appointed and qualified or until
his earlier death or resignation or removal in the manner hereinafter provided.
The Board may require any officer to give security for the faithful performance
of his duties.
(b) Any officer may resign at any time by giving written notice to the
Board, the Chairman, the President or the Secretary. Such resignation shall take
effect at the time specified therein or, if the time be not specified, at the
time it is accepted by action of the Board. Except as aforesaid, the acceptance
of such resignation shall not be necessary to make it effective.
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(c) All officers and agents elected or appointed by the Board shall be
subject to removal at any time by the Board or by the stockholders of the
Corporation with or without cause.
4.5. Vacancies.
If the office of Chairman, President, Secretary or Treasurer becomes
vacant for any reason, the Board shall fill such vacancy, and if any other
office becomes vacant, the Board may fill such vacancy. Any officer so appointed
or elected by the Board shall serve only until such time as the unexpired term
of his predecessor shall have expired, unless reelected or reappointed by the
Board.
4.6. The Chairman.
The Chairman shall give counsel and advice to the Board and the officers
of the Corporation on all subjects concerning the welfare of the Corporation and
the conduct of its business and shall perform such other duties as the Board may
from time to time determine. Unless otherwise determined by the Board, he or she
shall preside at meetings of the Board and of the Stockholders at which he or
she is present.
4.7. The President.
The President shall be the chief executive officer of the Corporation. The
President shall have general and active management and control of the business
and affairs of the Corporation subject to the control of the Board and shall see
that all orders and resolutions of the Board are carried into effect. The
President shall from time to time make such reports of the affairs of the
Corporation as the Board may require and shall perform such other duties as the
Board may from time to time determine.
4.8. The Secretary.
The Secretary shall, to the extent practicable, shall attend all meetings
of the Board and all meetings of the stockholders and shall record all votes and
the minutes of all proceedings in a book to be kept for that purpose. He or she
may give, or cause to be given, notice of all meetings of the stockholders and
of the Board, and shall perform such other duties as may be prescribed by the
Board, the Chairman or the President, under whose supervision he or she shall
act. He or she shall keep in safe custody the certificate books and stockholder
records and such other books and records as the Board may direct, and shall
perform all other duties incident to the office of Secretary and such other
duties as from time to time may be assigned to him or her by the Board, the
Chairman or the President.
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4.9. The Treasurer.
The Treasurer shall have the care and custody of the corporate funds and
other valuable effects, including securities, shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the
Board. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board, taking proper vouchers for such disbursements, shall
render to the Chairman, President and directors, at the regular meetings of the
Board, or whenever they may require it, an account of all his transactions as
Treasurer and of the financial condition of the Corporation and shall perform
all other duties incident to the office of Treasurer and such other duties as
from time to time may be assigned to him or her by the Board, the Chairman or
the President.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
5.1. Execution of Documents.
The Board shall designate, by either specific or general resolution, the
officers, employees and agents of the Corporation who shall have the power to
execute and deliver deeds, contracts, mortgages, bonds, debentures, checks,
drafts and other orders for the payment of money and other documents for and in
the name of the Corporation, and may authorize such officers, employees and
agents to delegate such power (including authority to redelegate) by written
instrument to other officers, employees or agents of the Corporation; unless so
designated or expressly authorized by these By-laws, no officer, employee or
agent shall have any power or authority to bind the Corporation by any contract
or engagement, to pledge its credit or to render it liable pecuniarily for any
purpose or amount.
5.2. Deposits.
All funds of the Corporation not otherwise employed shall be deposited
from time to time to the credit of the Corporation or otherwise as the Board or
Treasurer, or any other officer of the Corporation to whom power in this respect
shall have been given by the Board, shall select.
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5.3. Proxies with Respect to Stock or Other Securities of Other Corporations.
The Board shall designate the officers of the Corporation who shall have
authority from time to time to appoint an agent or agents of the Corporation to
exercise in the name and on behalf of the Corporation the powers and rights
which the Corporation may have as the holder of stock or other securities in any
other corporation, and to vote or consent with respect to such stock or
securities. Such designated officers may instruct the person or persons so
appointed as to the manner of exercising such powers and rights, and such
designated officers may execute or cause to be executed in the name and on
behalf of the Corporation, such written proxies, powers of attorney or other
instruments as they may deem necessary or proper in order that the Corporation
may exercise its powers and rights.
ARTICLE VI
SHARES AND THEIR TRANSFER; FIXING RECORD DATE
6.1. Certificates for Shares.
Every owner of stock of the Corporation shall be entitled to have a
certificate certifying the number and class of shares owned by him, her or it in
the Corporation, which shall be in such form as shall be prescribed by the
Board. Certificates shall be numbered and issued in consecutive order and shall
be signed by, or in the name of, the Corporation by the Chairman, the President
or any Vice President, and by the Treasurer (or an Assistant Treasurer, if
appointed) or the Secretary (or an Assistant Secretary, if appointed). In case
any officer or officers who shall have signed any such certificate or
certificates shall cease to be such officer or officers of the Corporation,
whether because of death, resignation or otherwise, before such certificate or
certificates shall have been delivered by the Corporation, such certificate or
certificates may nevertheless be adopted by the Corporation and be issued and
delivered as though the person or persons who signed such certificate had not
ceased to be such officer or officers of the Corporation.
6.2. Record.
A record in one or more counterparts shall be kept of the name of the
person, firm or corporation owning the shares represented by each certificate
for stock of the Corporation issued, the number of shares represented by each
such certificate, the date thereof and, in the case of cancellation, the date of
cancellation. Except as otherwise expressly required by law, the person in whose
name shares of stock stand on the
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stock record of the Corporation shall be deemed the owner thereof for all
purposes regarding the Corporation.
6.3. Transfer and Registration of Stock.
(a) The transfer of stock and certificates which represent the stock of
the Corporation shall be governed by Section 302A.417 of the Minnesota Statutes,
as amended from time to time.
(b) Registration of transfers of shares of the Corporation shall be made
only on the books of the Corporation upon request of the registered holder
thereof, or of his attorney thereunto authorized by power of attorney duly
executed and filed with the Secretary of the Corporation, and upon the surrender
of the certificate or certificates for such shares properly endorsed or
accompanied by a stock power duly executed.
6.4. Addresses of Stockholders.
Each stockholder shall designate to the Secretary an address at which
notices of meetings and all other corporate notices may be served or mailed to
him, her or it, and, if any stockholder shall fail to designate such address,
corporate notices may be served upon him, her or it by mail directed to him, her
or it at his post-office address, if any, as the same appears on the share
record books of the Corporation or at his last known post-office address.
6.5. Lost, Destroyed and Mutilated Certificates.
The holder of any shares of the Corporation shall immediately notify the
Corporation of any loss, destruction or mutilation of the certificate therefor,
and the Board may, in its discretion, cause to be issued to him, her or it a new
certificate or certificates for such shares, upon the surrender of the mutilated
certificates or, in the case of loss or destruction of the certificate, upon
satisfactory proof of such loss or destruction, and the Board may, in its
discretion, require the owner of the lost or destroyed certificate or his legal
representative to give the Corporation a bond in such sum and with such surety
or sureties as it may direct to indemnify the Corporation against any claim that
may be made against it on account of the alleged loss or destruction of any such
certificate.
6.6. Regulations.
The Board may make such rules and regulations as it may deem expedient,
not inconsistent with these By-laws, concerning the issue, transfer and
registration of certificates for stock of the Corporation.
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6.7. Fixing Date for Determination of Stockholders of Record.
(a) In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, the Board 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, and which record date shall be not more than 60 nor less than 10 days
before the date of such meeting. If no record date is fixed by the Board, the
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held. 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 may fix a new record date for the adjourned
meeting.
(b) In order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board 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, and which date shall
be not more than 10 days after the date upon which the resolution fixing the
record date is adopted by the Board. If no record date has been fixed by the
Board, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the Board
is required by the Minnesota Statute, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in this State,
its principal place of business or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board and prior action by the Board is required by the
Minnesota Statute, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the close
of business on the day on which the Board adopts the resolution taking such
prior action.
(c) In order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights or the stockholders entitled to exercise any rights in respect of any
change, conversion or exc hange of stock, or for the purpose of any other lawful
action, the Board may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted, and which
record date shall be not more
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than 60 days prior to such action. If no record date is fixed, the record date
for determining stockholders for any such purpose shall be at the close of
business on the day on which the Board adopts the resolution relating thereto.
ARTICLE VII
SEAL
The Corporation shall have no corporate seal.
ARTICLE VIII
FISCAL YEAR
The fiscal year of the Corporation shall be the calendar year unless
otherwise determined by the Board.
ARTICLE IX
INDEMNIFICATION AND INSURANCE
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 Section 302A.521 of the
Minnesota Statute, as now enacted or hereafter amended. Unless otherwise
approved by the Board, the Corporation shall not indemnify any employee of the
Corporation who is not otherwise entitled to indemnification pursuant to this
Article. The Board may authorize the purchase and maintenance of insurance
and/or the execution of individual agreements for the purpose of such
indemnification, and the Corporation shall advance all reasonable costs and
expenses (including attorneys' fees) incurred in defending any action, suit or
proceeding to all persons entitled to indemnification under this Article, all in
a manner, under circumstances and to the extent permitted by Section 302A.521 of
the Minnesota Statute, as now enacted or hereafter amended.
ARTICLE X
AMENDMENT
Except as otherwise provided in the Stockholders' Agreement, these By-laws
may be amended or altered by a vote of the majority of the whole Board at any
meeting provided that notice of such proposed amendment shall have been given in
the
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notice given to the directors of such meeting. Such authority in the Board is
subject to the power of the shareholders to change or repeal such By-laws by a
majority vote of the shareholders present or represented at any regular or
special meeting of shareholders called for such purpose, and the Board shall not
make or alter any By-laws fixing a quorum for meetings of shareholders,
prescribing procedures for removing directors or filling vacancies in the Board,
or fixing the number of directors or their classifications, qualifications, or
terms of office.
* * * * *
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