OPERATING AGREEMENT OF COPPERFIELD, LLC ARTICLE 1. OFFICES
Exhibit
3.8
1.1) Offices. The address of the registered
office of the limited liability company (the
“Company”) shall be designated in the Articles of
Organization, as amended from time to time. The principal
executive office of the Company shall initially be located at
2430 Metropolitan Centre, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000, and the Company may have offices at such other
places within or without the State of Minnesota as the Board of
Governors shall from time to time determine or the business of
the Company requires.
ARTICLE
2.
MEETINGS OF MEMBERS
MEETINGS OF MEMBERS
2.1) Regular Meetings. Regular meetings of the
members of the Company entitled to vote shall be held on an
annual or other less frequent basis as shall be determined by
the Board of Governors or by the chief manager, provided, that
if a regular meeting has not been held during the immediately
preceding 15 months, members holding three percent (3%) or
more of the voting power of all members entitled to vote may
demand a regular meeting of members by written notice of demand
given to the chief manager or the treasurer of the Company. At
each regular meeting, the members, voting as provided in the
Articles of Organization and this Operating Agreement, shall
elect qualified successors for governors 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 as shall come before the meeting.
No meeting shall be considered a regular meeting unless
specifically designated as such in the notice of meeting or
unless all the members entitled to vote are present in person or
by proxy and none of them objects to such designation.
2.2) Special Meetings. Special meetings of the
members entitled to vote may be called at any time by the
Chairman of the Board, the chief manager, the treasurer, two or
more governors, or a member or members holding ten percent (10%)
or more of the voting power of all members entitled to vote who
shall demand such special meeting by giving written notice of
demand to the chief manager or the treasurer specifying the
purposes of the meeting.
2.3) Meetings Held Upon Member Demand. Within
30 days after receipt by the chief manager or the treasurer of a
demand from any member or members entitled to call a regular or
special meeting of members, the Board of Governors shall cause
such meeting to be called and held on notice no later than
90 days after receipt of such demand. If the Board of
Governors fails to cause such a meeting to be called and held,
the member or members making the demand may call the meeting by
giving notice as provided in Section 2.5 hereof at the
expense of the Company.
2.4) Place of Meetings. Meetings of the
members shall be held at the principal executive office of the
Company or at such other place, within or without the State of
Minnesota, as is designated by the Board of Governors, except
that a regular meeting called by or at the demand of a member
shall be held in the county where the principal executive office
of the Company is located.
2.5) Notice of Meetings. Except as otherwise
specified in Section 2.6 or required by law, a written
notice setting out the place, date and hour of any regular or
special meeting shall be given to each member entitled to vote
not less than two days nor more than 60 days prior to the
date of the meeting; provided, that notice of a meeting at which
there is to be considered a proposal (i) to dispose of all,
or substantially all, of the property and assets of the Company
or (ii) to dissolve the Company shall be given to all
members of record, whether or not entitled to vote; and provided
further, that notice of a meeting at which there is to be
considered a proposal to adopt a plan of merger or exchange
shall be given to all members of record, whether or not entitled
to vote, at least 14 days prior thereto. Notice of any
special meeting shall state the purpose or purposes of the
proposed meeting, and the business transacted at all special
meetings shall be confined to the purposes stated in the notice.
2.6) Waiver of Notice. A member may waive
notice of any meeting before, at or after the meeting, in
writing, orally or by attendance. Attendance at a meeting by a
member is a waiver of notice of that meeting unless the member
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 be lawfully considered at such meeting and does not
participate in the consideration of the item at such meeting.
2.7) Quorum and Adjourned Meeting. The holders
of a majority of the voting power of the members entitled to
vote at a meeting, represented either in person or by proxy,
shall constitute a quorum for the transaction of business at any
regular or special meeting of members. If a quorum is present
when a duly called or held meeting is convened, the members
present may continue to transact business until adjournment,
even though the withdrawal of a number of members originally
present leaves less than the proportion or number otherwise
required for a quorum. In case a quorum is not present at any
meeting, those present shall have the power to adjourn the
meeting from time to time, without notice other than
announcement at the meeting, until the requisite number of
members entitled to vote shall be represented. At such adjourned
meeting at which the required voting power of members entitled
to vote shall be represented, any business may be transacted
which might have been transacted at the original meeting.
2.8) Voting. At each meeting of the members,
every member having the right to vote shall be entitled to vote
in person or by proxy duly appointed by an instrument in writing
subscribed by such member. Each member shall have the number of
votes equal to the number of units such member owns. Upon the
demand of any member, the vote for governors or the vote upon
any question before the meeting shall be by ballot. All
elections shall be determined and all questions decided by a
majority of the voting power of the Company represented at any
meeting at which there is a quorum except in such cases as shall
otherwise be required by statute,
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the Articles of Organization or this Operating Agreement.
Governors shall be elected by a plurality of the votes cast by
members entitled to vote thereon.
2.9) Order of Business. The suggested order of
business at any regular meeting and, to the extent appropriate,
at all other meetings of the members shall, unless modified by
the presiding chair, be:
(a) Roll call;
(b) Proof of due notice of meeting or waiver of
notice;
(c) Determination of existence of quorum;
(d) Reading and disposal of any unapproved
minutes;
(e) Reports of managers and committees;
(f) Election of governors;
(g) Unfinished business;
(h) New business; and
(i) Adjournment.
ARTICLE
3.
GOVERNORS
3.1) General Powers. Except as authorized by
the members pursuant to a member control agreement or unanimous
affirmative vote, the business and affairs of the Company shall
be managed by or under the direction of a Board of Directors.
3.2) Number, Term and Qualifications. The
Board of Directors shall consist of one or more persons. The
number of persons on the first Board (if not named in the
Articles of Organization) shall be determined by the organizer
or members. Thereafter at each regular meeting, the members
shall determine the number of governors; provided, that between
regular meetings the authorized number of governors may be
increased or decreased by the members or increased by the Board
of Governors. Each governor shall serve for an indefinite term
that expires at the next regular meeting of members, and until
his or her successor is elected and qualified, or until his or
her earlier death, resignation, disqualification, or removal as
provided by statute.
3.3) Vacancies. Vacancies on the Board of
Governors may be filled by the affirmative vote of a majority of
the remaining members of the Board, though less than a quorum;
provided, that newly created memberships resulting from an
increase in the authorized number of governors shall be filled
by the affirmative vote of a majority of the governors serving
at the time of such increase. Persons so elected shall be
governors until their successors are elected by the members, who
may make such election at the next regular or special meeting of
the members.
3.4) Quorum and Voting. A majority of the
governors currently holding office shall constitute a quorum for
the transaction of business. In the absence of a quorum, a
majority of the governors present may adjourn a meeting from
time to time until a quorum is present. If a quorum is present
when a duly called or held meeting is convened, the governors
present may
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continue to transact business until adjournment even though the
withdrawal of a number of governors originally present leaves
less than the proportion or number otherwise required for a
quorum. Except as otherwise required by law or the Articles of
Organization, the acts of a majority of the governors present at
a meeting at which a quorum is present shall be the acts of the
Board of Governors.
3.5) Board Meetings: Place and
Notice. Meetings of the Board of Governors may be
held from time to time at any place within or without the State
of Minnesota that the Board of Governors may designate. In the
absence of designation by the Board of Governors, Board meetings
shall be held at the principal executive office of the Company,
except as may be otherwise unanimously agreed orally, or in
writing, or by attendance. Any governor may call a Board meeting
by giving at least 24 hours notice to all governors of the
date and time of the meeting. The notice need not state the
purpose of the meeting, and may be given by mail, telephone,
telegram, or in person. If a meeting schedule is adopted by the
Board, or if the date and time of a Board meeting has been
announced at a previous meeting, no notice is required.
3.6) Waiver of Notice. A governor may
waive notice of any meeting before, at or after the meeting, in
writing, orally or by attendance. Attendance at a meeting by a
governor is a waiver of notice of that meeting unless the
governor 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.
3.7) Absent Governors. A governor may
give advance written consent or opposition to a proposal to be
acted on at the Board meeting. If the governor 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 of 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 governor has consented or objected.
3.8) Compensation. Governors who are not
salaried managers of the Company shall receive such fixed sum
and expenses per meeting attended or such fixed annual sum or
both as shall be determined from time to time by resolution of
the Board of Governors. Nothing herein contained shall be
construed to preclude any governor from serving this Company in
any other capacity and receiving proper compensation therefor.
3.9) Committees. The Board of Governors
may, by resolution approved by affirmative vote of a majority of
the Board, establish committees having the authority of the
Board in the management of the business of the Company only to
the extent provided in the resolution. Committees may include a
special litigation committee consisting of one or more
independent governors or other independent persons to consider
legal rights or remedies of the Company and whether those rights
and remedies should be pursued. Each such committee shall
consist of one or more natural persons (who need not be
governors) appointed by the affirmative vote of a majority of
the governors present, and shall, other than special litigation
committees, be subject
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at all times to the direction and control of the Board. A
majority of the members of a committee present at a meeting
shall constitute a quorum for the transaction of business.
3.10 Order of Business. The
suggested order of business at any meeting of the Board of
Governors shall, to the extent appropriate and unless modified
by the presiding chair, be:
| (a) | Roll call; | |
| (b) | Proof of due notice of meeting or waiver of notice, or unanimous presence and declaration by presiding chairman; | |
| (c) | Determination of existence of quorum; | |
| (d) | Reports of managers and committees; | |
| (e) | Election of managers; | |
| (f) | Unfinished business; | |
| (g) | New business; and | |
| (h) | Adjournment. |
ARTICLE
4.
MANAGERS
4.1) Numbers and Designation. The
Company shall have one or more natural persons exercising the
functions of the offices of chief manager and treasurer. The
Board of Governors may elect or appoint such other managers or
agents as it deems necessary for the operation and management of
the Company including, but not limited to, a Chairman of the
Board, a Chief Manager, a Chief Financial Manager, a Treasurer
and a Secretary, each of whom shall have the powers, rights,
duties and responsibilities set forth in this Operating
Agreement unless otherwise determined by the Board. Any of the
offices or functions of those offices may be held by the same
person. Managers shall also be known as officers of the Company.
4.2) Election. Term of Office and
Qualification. At the first meeting of the Board
following each election of governors, the Board shall elect
managers who shall hold office until the next election of
managers or until their successors are elected or appointed and
qualify; provided, however, that any manager may be removed with
or without cause by the affirmative vote of a majority of the
Board of Governors present (without prejudice, however, to any
contract rights of such manager).
4.3) Resignation. Any manager may
resign at any time by giving written notice to the Company. The
resignation is effective when notice is given to the Company,
unless a later date is specified in the notice, and acceptance
of the resignation shall not be necessary to make it effective.
4.4) Vacancies in Office. If there
be a vacancy in any office of the Company, by reason of death,
resignation, removal or otherwise, such vacancy may, or in the
case of a vacancy in the office of chief manager or treasurer
shall, be filled for the unexpired term by the Board of
Governors.
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4.5) Chief Manager/Chief Executive
Officer. Unless provided otherwise by a resolution
adopted by the Board of Governors, the chief manager
(a) shall have general active management of the business of
the Company; (b) shall, when present and in the absence of
the Chairman of the Board, preside at all meetings of the
members and Board of Governors; (c) shall see that all
orders and resolutions of the Board are carried into effect;
(d) shall sign and deliver in the name of the Company any
deeds, mortgages, bonds, contracts, or other instruments
pertaining to the business of the Company, except in cases in
which the authority to sign and deliver is required by law to be
exercised by another person or is expressly delegated by the
Articles, this Operating Agreement or the Board to some other
manager or agent of the Company; (e) may maintain records
of and certify proceedings of the Board and members;
(f) shall perform the duties of the Secretary if there is
no Secretary; and (g) shall perform such other duties as may
from time to time be assigned to him or her by the Board. The
chief manager shall also be known as the chief executive officer
of the Company.
4.6) Treasurer. Unless provided otherwise
by a resolution adopted by the Board of Governors, the treasurer
(a) shall keep accurate financial records for the Company;
(b) shall deposit all monies, drafts and checks in the name
of and to the credit of the Company in such banks and
depositories as the Board of Governors shall designate from time
to time; (c) shall endorse for deposit all notes, checks
and drafts received by the Company as ordered by the Board,
making proper vouchers therefor; (d) shall disburse Company
funds and drafts in the name of the Company, as ordered by the
Board; (e) shall render to the chief manager and the Board
of Governors, whenever requested, an account of all of his or
her transactions as treasurer and of the financial condition of
the Company; and (f) shall perform such other duties as may
be prescribed by the Board of Governors or the chief manager
from time to time.
4.7) Chairman of the Board. The Chairman
of the Board shall preside at all meetings of the members and of
the Board and shall exercise general supervision and direction
over the more significant matters of policy affecting the
affairs of the Company, including particularly its financial and
fiscal affairs.
4.8) President. Unless otherwise
determined by the Board, the President shall be the chief
manager. If a manager other than the President is designated
chief manager, the President shall perform such duties as may
from time to time be assigned to him or her by the Board. If the
office of Chairman of the Board is not filled, the President
shall also perform the duties set forth in Section 4.7.
4.9) Vice President. Each Vice President
shall have such powers and shall perform such duties as may be
specified in this Operating Agreement or prescribed by the Board
of Governors. In the event of absence or disability of the
President, the Board of Governors may designate a Vice President
or Vice Presidents to succeed to the power and duties of the
President.
4.10) Secretary. The Secretary shall, unless
otherwise determined by the Board, be secretary of and attend
all meetings of the members and Board of Governors, and may
record the proceedings of such meetings in the minute book of
the Company and, whenever necessary, certify such proceedings.
The Secretary shall maintain or see to the maintenance of the
required
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records and information of the Company as provided in Minnesota
Statutes, Section 322B.373, and any successor provisions.
The Secretary shall give proper notice of meetings of members
and shall perform such other duties as may be prescribed by the
Board of Governors or the chief manager from time to time.
4.11) Chief Financial Manager/Chief Financial
Officer. Unless otherwise determined by the
Board, the Chief Financial Manager shall be the treasurer of the
Company. If a manager other than the Chief Financial Manager is
designated treasurer, the Chief Financial Manager shall perform
such duties as may be prescribed by the Board of Governors or
the chief executive manager from time to time. The Chief
Financial Manager shall also be known as the Chief Financial
Officer.
4.12) Delegation. Unless prohibited
by a resolution approved by the affirmative vote of a majority
of the governors present, a manager elected or appointed by the
Board may delegate in writing some or all of the duties and
powers of his office to other persons.
ARTICLE 5.
INDEMNIFICATION
INDEMNIFICATION
5.1) Indemnification. The Company
shall indemnify such persons, for such expenses and liabilities,
in such manner, under such circumstances, and to such extent, as
permitted by Minnesota Statutes, Section 322B.699, as now
enacted or hereafter amended.
ARTICLE 6.
REQUIRED RECORDS AND MEMBERSHIP INTERESTS
REQUIRED RECORDS AND MEMBERSHIP INTERESTS
6.1) Required Records. The Company
shall keep, at its principal office, or at another place or
places within the United States determined by the Board, all of
the records required by Minnesota Statutes, Section 322B.373,
Subd. 1, as now enacted or hereafter amended. Such records
shall include copies of the register of Units required to be
maintained pursuant to Section 6.2, and all other records
maintained in order to account for ownership interests as
provided in this Article 6. The Company shall also keep
such other records in connection with its business, at such
place or places as the Board determines, as the Board or
managers determine are necessary or advisable.
6.2) Evidence of Ownership of Membership
Interests. Ownership of membership interests in
the Company shall be evidenced by the contents of the required
records set forth in Section 6.1. Certificates of
membership shall not be issued. The member in whose name a
membership interest is recorded in the required records shall be
deemed the owner thereof for all purposes as regards the
Company; provided, that when any permitted transfer of a
membership interest shall be made as collateral security and not
absolutely, such fact, if known to the Company, shall be so
expressed in the required records. The secretary, or the chief
manager if there is no secretary, shall issue a statement of
membership interest pursuant to Minnesota Statutes,
Section 322B.30, Subd. 2, as now enacted or hereafter
amended, within a reasonable period of time after a written
request is received by a member. Further, upon the written
request
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of a member, the Company may also issue such statement within a
reasonable period of time after request by a third party.
6.3) Assignments of Membership
Interests. Assignments of membership interests, or any
part thereof, shall be binding upon the Company only when noted
in the required records of the Company. Any payment or
allocation of profits, losses or distributions by the Company to
the person entitled thereto as of the date of such payment or
allocation shall acquit the Company of all liability to any
other person who may be interested in such payment or
allocation. The Company shall, within a reasonable period of
time, record in the required records any permitted assignments
of a member’s membership interests, or any part thereof,
after receipt of written notice thereof. As a condition to the
Company’s recording such assignment, the Company may
require written evidence of such assignment in form and content
reasonably required by the Company, and evidence of compliance
with any applicable restrictions on transfer.
ARTICLE
7.
GENERAL PROVISIONS
7.1) Record Dates. In order to determine the
members entitled to notice of and to vote at a meeting, or
entitled to receive payment of a distribution, the Board of
Governors may fix a record date which shall not be more than
60 days preceding the date of such meeting or distribution.
In the absence of action by the Board, the record date for
determining members entitled to receive a distribution shall be
at the close of business on the day on which the Board of
Governors authorizes such distribution.
7.2) Distributions: Acquisitions of Membership
Interests. Subject to the provisions of law, the Board
of Governors may authorize distributions whenever and in such
amounts as, in its opinion, the condition of the affairs of the
Company shall render it advisable. Further, the Board of
Governors may authorize the acquisition of a member’s
membership interest pursuant to an agreement between the Company
and the member.
7.3) Seal. The Company shall have such seal or
no seal as the Board of Governors shall from time to time
determine.
7.4) Securities of other Organizations.
| (a) | Voting Securities Held by the Company. Unless otherwise ordered by the Board of Governors, the chief manager shall have full power and authority on behalf of the Company (i) to attend and to vote at any meeting of security holders of other companies in which the Company may hold securities; (ii) to execute any proxy for such meeting on behalf of the Company; and (iii) to execute a written action in lieu of a meeting of such other Company on behalf of this Company. At such meeting, by such proxy or by such writing in lieu of meeting, the chief manager shall possess and may exercise any and all rights and powers incident to the ownership of such securities that the Company might have possessed and |
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| exercised if it had been present. The Board of Governors may from time to time confer like powers upon any other persons or persons. |
| (b) | Purchase and Sale of Securities. Unless otherwise ordered by the Board of Governors, the chief manager shall have full power and authority on behalf of the Company to purchase, sell, transfer or encumber securities of any other Company owned by the Company which represent not more than 10% of the outstanding securities of such issue, and may execute and deliver such documents as may be necessary to effectuate such purchase, sale, transfer or encumbrance. The Board of Governors may from time to time confer like powers upon any other person or persons. |
7.5) Member Control Agreements. In the event of any
conflict or inconsistency between this Operating Agreement, or
any amendment thereto, and any member control agreement as
defined in Minnesota Statutes, Section 322B.37, whenever
adopted, such member control agreement shall govern.
ARTICLE
8.
MEETINGS
MEETINGS
8.1) Telephone Meetings and Participation.
| (a) | Governors. A conference among governors by any means of communication through which the governors may simultaneously hear each other during the conference constitutes a Board meeting, if the same notice is given of the conference as would be required for a meeting, and if the number of governors participating in the conference would be sufficient to constitute a quorum at a meeting. Participation in a meeting by that means constitutes presence in person at the meeting. A governor may participate in a Board meeting not heretofore described in this paragraph, by any means of communication through which the governor, other governors so participating, and all governors physically present at the meeting may simultaneously hear each other during the meeting. Participation in a meeting by that means constitutes presence in person at the meeting. The provisions of this section shall apply to committees and members of committees to the same extent as they apply to the Board and governors. |
| (b) | Members. A conference among members by any means of communication through which the members may simultaneously hear each other during the conference constitutes a member meeting, if the same notice is given of the conference as would be required for a meeting, and if the membership interests of the members participating in the conference would be sufficient to constitute a quorum at a meeting. Participation in a meeting by that means constitutes presence in person at the meeting. A member may participate in a member meeting not heretofore described in this paragraph, by any means of communication through which the member, other members so participating, and |
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all members physically present at the meeting may simultaneously
hear each other during the meeting. Participation in a meeting
by that means constitutes presence in person at the meeting.
8.2) Authorization Without
Meeting. Any action of the members, the Board of
Governors, or any committee of the Company which may be taken at
a meeting thereof, may be taken without a meeting if authorized
by a writing signed by all of the members who would be entitled
to vote on such action, by all of the governors (unless less
than unanimous action is permitted by the Articles of
Organization), or by all of the members of such committee, as
the case may be.
ARTICLE
9.
AMENDMENTS OF OPERATING AGREEMENT
AMENDMENTS OF OPERATING AGREEMENT
9.1) Amendments. Unless the
Articles of Organization provide otherwise, this Operating
Agreement may be altered, amended, added to or repealed by the
affirmative vote of a majority of the members of the Board of
Governors. Such authority in the Board of Governors is subject
to the power of the members to change or repeal such Operating
Agreement, and the Board of Governors shall not make or alter
any Operating Agreement fixing a quorum for meetings of
governors, prescribing procedures for removing governors or
filling vacancies on the Board, or fixing the number of
governors or their classifications, qualifications or terms of
office, but the Board may adopt or amend a provision to increase
the number of governors.
The undersigned, Secretary of Xxxxxxxxxxx, LLC, hereby certifies
that the foregoing Operating Agreement was duly adopted as the
Operating Agreement of the Company by its first Board of
Governors on February 2, 1999.
/s/ Xxxxxxx X. Xxxxxxxxx, Secretary
Xxxxxxx X. Xxxxxxxxx, Secretary
Xxxxxxx X. Xxxxxxxxx, Secretary
Attest:
/s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx, Chief Executive Officer
Xxxxxxx X. Xxxx, Chief Executive Officer
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Exhibit 3.11
State of
Minnesota
SECRETARY OF STATE
CERTIFICATE OF INCORPORATION
I, Xxxx Xxxxxxxxx, Secretary of State of Minnesota, do certify
that: Articles of Incorporation, duly signed and acknowledged
under oath, have been filed on this date in the Office of the
Secretary of State, for the incorporation of the following
corporation, under and in accordance with the provisions of the
chapter of Minnesota Statutes listed below.
This corporation is now legally organized under the laws of
Minnesota.
Corporate Name: Spell Capital Corporation
Corporate Charter Number: 10M-338
Chapter Formed Under: 302A
This certificate has been issued on 02/02/1999.
|
[SEAL]
|
/s/ Xxxx
Xxxxxxxxx |
|
| Secretary of State |
