Exhibit 3(ii)
NORTHWESTERN PUBLIC SERVICE COMPANY
BY-LAWS
(As Amended to and Including May 7, 1997)
ARTICLE I
Section 1. Principal Office. The principal office of the Company
shall be located in the City of Wilmington, County of New Castle, and State
of Delaware, and the name of the agent therein and in charge thereof, and
upon whom legal process against the corporation may be served (until
otherwise determined by the Board of Directors) is the CORPORATION TRUST
COMPANY OF AMERICA.
Section 2. Other Offices. Offices of the Company where meetings of
the stockholders and directors may be held, shall be and are hereby,
established in the City of Huron, Beadle County, South Dakota, or such
other places within or without the State of Delaware, as may from time to
time be established by the Board of Directors.
ARTICLE II
Section 1. Annual Meeting. The annual meeting of stockholders for
the election of directors and for such other business as may properly be
conducted at such meeting shall be held at such time and date as the Board
of Directors shall designate from time to time and set forth in the notice
of the meeting. Such meeting shall be held at the office of the
corporation in the City of Wilmington, Delaware, or at the office of the
corporation in the City of Huron, South Dakota, or at such other place
within or without the State of Delaware, as may be designated in the notice
of the meeting.
Section 2. Special Meetings. Special meetings of the stockholders
may be called by the Chairman of the Board, the President or any Vice
President, or by order of the Board of Directors whenever they deem it
necessary, and it shall be their duty to order and call such meetings
whenever persons holding a majority of the outstanding capital stock of the
corporation entitled to be voted at such meeting, shall in writing request
the same. Such special meetings shall be held at the office of the
corporation in the City of Wilmington, Delaware, or at the office of the
corporation in the City of Huron, South Dakota, or at such other place
within or without the State of Delaware, as may be designated in the notice
of the meeting, and the business of such special meeting shall be confined
to the objects stated in the notice thereof.
Section 3. Notice of Meetings. Notice of the time and place of the
annual, and of any special meeting of the stockholders, shall be given by
the Corporate Secretary to each of the stockholders entitled to vote at
such meetings by posting the same in postage prepaid letters, addressed to
each such stockholder at the address left with the Corporate Secretary of
the Corporation, or at his last known address, or by delivering same
personally, at least ten days prior to such meeting. The notice of a
special meeting shall also set forth the objects of the meeting. Any or
all of the stockholders may waive notice of the annual or any special
meeting, and the presence of a stockholder at any meeting, in person or by
proxy, shall be deemed a waiver of notice thereof by him. Meetings of the
stockholders may be held at any time and place and for any purpose without
notice, when all of the stockholders entitled to vote at such meetings are
present in person or by proxy, or when all of such stockholders waive
notice and consent to the holding of such meeting.
Section 4. Voting at Stockholders' Meetings. At all meetings of
stockholders each holder of stock having voting power or entitled to vote
at such meetings shall be entitled to one vote for each share of stock held
by him at the time of the closing of the transfer books for said meeting,
or on the record date fixed by the Board of Directors for that purpose as
provided in Section 2 of Article VI of these By-laws, and if such transfer
books shall not have been closed or any record date fixed, then for each
share of stock standing registered in his name at the time of the meeting;
provided, always, that except when the transfer books have been closed or a
record date fixed, as aforesaid, no share of stock shall be voted at any
election which has been transferred on the books of the corporation within
twenty days next preceding such election. Such vote may be given
personally or by proxy authorized in writing. Only the persons in whose
names shares of stock shall stand on the books of the corporation at the
time aforesaid shall be entitled to vote in person or by proxy upon the
shares of stock standing in their name. No proxy shall be voted on after
three years from its date.
Section 5. Quorum. The holders for the time being of a majority of
the total number of shares of stock issued and outstanding and entitled to
be voted at any meetings represented in person or by proxy, shall
constitute a quorum for the transaction of business at such meetings unless
the representation of a larger number shall be required by law. In the
absence of a quorum, the stockholders attending or represented at the time
and place at which a meeting shall have been called, may adjourn the
meeting from time to time until a quorum shall be present. At any such
adjourned meeting at which a quorum shall be present, any business may be
transacted which might have been transacted by a quorum of the stockholders
at the meeting as originally convened.
Section 6. Presiding Officer and Secretary. The Chairman of the
Board, or in the Chairman's absence the President, or in the President's
absence a Vice President, shall call meetings of the stockholders to order
and shall act as chairman of such meetings. The Board of Directors may
appoint any stockholder to act as chairman at any meeting in the absence of
the Chairman of the Board, the President and Vice Presidents, and, in
default of any appointment by the Board of Directors of a chairman, the
stockholders may elect a chairman to preside at the meeting. The Corporate
Secretary, or an Assistant Corporate Secretary, of the corporation shall
act as Secretary at all meetings of the stockholders, but in their absence
the stockholders or presiding officer may appoint any person to act as
Secretary of the meeting.
Section 7. Business at Annual Meeting. No business may be transacted
at an annual meeting of stockholders, other than business that is either
(a) specified in the notice of meeting (or any supplement thereto) given by
or at the direction of the Board of Directors (or any duly authorized
committee thereof), (b) otherwise properly brought before the annual
meeting by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (c) otherwise properly brought before the
annual meeting by any stockholder of the corporation (i) who is a
stockholder of record on the date of the giving of the notice provided for
in this Section 7 of this Article and on the record date for the
determination of stockholders entitled to vote at such annual meeting and
(ii) who complies with the notice procedure set forth in this Section 7.
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a stockholder, such
stockholder must have given timely notice thereof in proper written form to
the Corporate Secretary.
To be timely, a stockholder's notice to the Corporate Secretary must
be delivered to or mailed and received at the principal office of the
Company not less than 90 days nor more than 120 days prior to the date of
the annual meeting of stockholders, provided, however, that in the event
that less than 100 days' notice or prior public disclosure of the date of
the meeting is given to stockholders, notice by the stockholder to be
timely must be so received not later than the close of business on the
tenth (10th) day following the day on which such notice of the date of the
annual meeting was mailed or such public disclosure of the date of the
annual meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the Corporate
Secretary must set forth as to each matter such stockholder proposes to
bring before the annual meeting (i) a brief description of the business
desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (ii) the name and record
address of such stockholder, (iii) the class or series and number of shares
of capital stock of the Company that are owned beneficially or of record by
such stockholder, (iv) a description of all arrangements or understandings
between such stockholder and any other person or persons (including their
names) in connection with the proposal of such business by such stockholder
and any material interest of such stockholder in such business and (v) a
representation that such stockholder intends to appear in person or by
proxy at the annual meeting to bring such business before the meeting.
No business shall be conducted at the annual meeting of stockholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 7, provided, however, that, once
business has been properly brought before the annual meeting in accordance
with such procedures, nothing in this Section 7 shall be deemed to preclude
discussion by any stockholder of any such business. If the chairman of an
annual meeting determines that business was not properly brought before the
annual meeting in accordance with the foregoing procedures, the chairman of
the meeting shall declare to the meeting that the business was not properly
brought before the meeting and such business shall not be transacted.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Election, Qualification and Filling of Vacancies. The
business and affairs of the Company shall be managed by or under the
direction of a Board of Directors. The number of Directors shall be no
less than nine (9) and no greater than twelve (12). Within the limits
specified above, the number of Directors constituting the Board of
Directors of the Company shall be fixed from time to time by or pursuant to
a resolution passed by the Board of Directors. However, no decrease in the
number of Directors shall have the effect of shortening the term of any
incumbent Director. The number of Directors of the Company may exceed
twelve (12) when and to the extent needed to permit the holders of shares
of the New Preferred Stock to elect a majority of Directors under
subdivision 5 of Division A of Article Fourth of the Company's Restated
Certificate of Incorporation.
The Board of Directors shall be and is divided into three classes,
Class I, Class II and Class III, which shall be as nearly equal in number
as possible. Each Director shall serve for a term ending on the date of
the third annual meeting of stockholders following the annual meeting of
stockholders at which such Director was elected; provided, however, that
each initial Director in Class I shall hold office until the annual meeting
of stockholders in 1986; each initial Director in Class II shall hold
office until the annual meeting of stockholders in 1987; and each initial
Director in Class III shall hold office until the annual meeting of
stockholders in 1988. Directors elected at the annual meeting of
stockholders shall be elected by a plurality of the votes cast for election
of Directors. In the event of any increase or decrease in the number of
Directors, (i) each Director then serving as such shall nevertheless
continue as a Director of the class of which he is a member until the
expiration of his current term, or his prior death, retirement,
resignation, or removal, and (ii) the newly created or eliminated
directorships resulting from such increase or decrease shall be apportioned
by the Board of Directors among the three classes of Directors so as to
maintain such classes as nearly equal in number as possible.
Notwithstanding any of the foregoing provisions of this Section, each
Director shall serve until his successor is elected and qualified or until
his death, resignation or removal. Should a vacancy occur or be created,
whether arising through death, resignation or removal of a Director or
through an increase in the number of Directors, such vacancy shall be
filled by a majority vote of the remaining Directors of all classes though
less than a quorum of the Board of Directors. A Director so elected to
fill a vacancy shall serve for the remainder of the then present term of
office of the class to which he was elected.
Any Director or the entire Board of Directors may be removed; however,
such removal must be for cause and must be approved as set forth in this
paragraph. Removal for cause must be approved by at least a majority of
the total number of Directors or by at least a majority vote of the shares
of the corporation then entitled to be voted at an election for that
Director. For purposes of this paragraph, the total number of Directors
will not include the Director who is the subject of the removal
determination, nor will such Director be entitled to vote thereon.
Section 2. Place of Meeting. Any meetings of the Board of Directors
may be held either within or without the State of Delaware.
Section 3. Annual, Regular and Special Meetings. The annual meeting
of the Board of Directors shall be held in each year immediately following
and at the same place as the annual meeting of stockholders, for the
election of officers and the transaction of such other business as may come
before the Board; and regular meetings of the Board shall be held on the
first Wednesday in the months of February, August and November in each year
at the hour of 10 o'clock a.m. at the office of the Company in the City of
Huron, South Dakota, or at such other time of day or such other place as
may from time to time be established by resolution of the Board or as may
be specified by the Chairman of the Board or the President with respect to
each such meeting. Special meetings of the Board may be called by the
Chairman of the Board, the President, or any two Directors, and shall be
held at such time and place as may be specified by the officer or Directors
calling the meeting, or in the absence of such specification as to place,
at the office of the Company in the City of Huron, South Dakota. Notice
stating the place, date, and hour of each meeting of the Board (other than
the annual meeting, as to which no notice need be given) shall be given to
each Director either by mail to his residence or place of business not less
than forty-eight (48) hours before the date of the meeting, or personally
by telephone, telegram, telecopy, electronic mail, or similar means of
communication on twenty-four (24) hours' notice. All or any of the
Directors may waive notice of any meeting, and the presence of a Director
at any meeting of the Board shall be deemed a waiver of notice thereof by
him.
Section 3A. Action on Written Consent Without Meetings. Unless
otherwise restricted by the Certificate of Incorporation or these By-laws,
any action required or permitted to be taken at any meeting of the Board of
Directors may be taken without a meeting, if prior to such action a written
consent thereto is signed by all members of the Board and such written
consent is filed with the minutes of proceedings of the Board.
Section 4. Quorum and Adjournment. A majority of the Directors in
office at a meeting regularly called, shall constitute a quorum. In the
absence of a quorum, the Directors present at the time and place at which a
meeting shall have been duly called, may adjourn the meeting from time to
time and place to place until a quorum shall be present.
Section 5. Submission of Acts to Approval of Stockholders. The Board
of Directors, in its discretion, may submit any contract or act for
approval or ratification at any annual meeting of the stockholders, or at
any special meeting of the stockholders called for that purpose, and any
contract or act that shall be approved or ratified by the vote of the
holders of a majority of the capital stock of the Company which is
represented in person or by proxy at such meeting, provided that a lawful
quorum of stockholders be there represented in person or by proxy, shall be
as valid and binding upon the corporation and upon all the stockholders as
if it had been approved or ratified by every stockholder of the Company.
Section 6. Compensation. Directors shall be entitled to receive such
fees and expenses, if any, for attendance at meetings of the Board of
Directors, and/or such fixed salaries for services as Directors, as may be
fixed from time to time by resolution of the Board. Nothing herein
contained shall be construed to preclude any Director from serving the
Company in any other capacity as an officer, committee member, agent or
otherwise, and receiving compensation therefor.
Section 7. Nomination of Directors. Only persons who are nominated
in accordance with the following procedures shall be eligible for election
as Directors of the Company except as may be otherwise expressly provided
in the Restated Certificate of Incorporation of the Company with respect to
the right of the holders of New Preferred Stock and Preference Stock to
nominate and elect a specified number of directors in certain
circumstances. Nominations of persons for election to the Board of
Directors may be made at any annual meeting of stockholders (a) by or at
the direction of the Board of Directors (or any duly authorized committee
thereof) or (b) by any stockholder of the Company (i) who is a stockholder
of record on the date of the giving of the notice provided for in this
Section 7 and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (ii) who complies with the
notice procedures set forth in this Section 7.
In addition to any other applicable requirements, for a nomination to
be made by a stockholder, such stockholder must have given timely notice
thereof in proper written form to the Corporate Secretary.
To be timely, a stockholder's notice to the Corporate Secretary must
be delivered to or mailed and received at the principal office of the
Company not less than 90 days nor more than 120 days prior to the date of
the annual meeting of stockholders; provided, however, that in the event
that less than 100 days' notice or prior public disclosure of the date of
the meeting is given to stockholders, notice by the stockholder to be
timely must be so received not later than the close of business on the
tenth (10th) day following the day on which such notice of the date of the
annual meeting was mailed or such public disclosure of the date of the
annual meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the Corporate
Secretary must set forth (a) as to each person whom the stockholder
proposes to nominate for election as a Director (i) the name, age, business
address and residence address of the person, (ii) the principal occupation
or employment of the person, (iii) the class or series and number of shares
of capital stock of the Company that are owned beneficially or of record by
the person and (iv) any other information relating to the person that would
be required to be disclosed in a proxy statement or other filings required
to be made in connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Securities and Exchange Act of
1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder; and (b) as to the stockholder giving this notice
(i) the name and record address of such stockholder, (ii) the class or
series and number of shares of capital stock of the Company that are owned
beneficially or of record by such stockholder, (iii) a description of all
arrangements or understandings between such stockholder and each proposed
nominee and any other persons (including their names) pursuant to which the
nomination(s) are to be made by such stockholder, (iv) a representation
that such stockholder intends to appear in person or by proxy at the
meeting to nominate the persons named in its notice and (v) any other
information relating to such stockholder that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with the solicitations of proxies for election of Directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a written
consent of each proposed nominee to being named as a nominee and to serve
as a director if elected.
No person shall be eligible for election as a Director of the Company
unless nominated in accordance with the procedures set forth in this
Section 7. If the chairman of the meeting determines that a nomination was
not made in accordance with the foregoing procedures, the chairman shall
declare to the meeting that the nomination was defective and such defective
nomination shall be disregarded.
ARTICLE IV
OFFICERS
Section 1. Designation, Term and Vacancies. The officers of the
corporation shall be a Chairman of the Board, a President, one or more Vice
Presidents, a Corporate Secretary and a Treasurer, all of whom shall be
elected by the Board of Directors. The Board of Directors may elect one or
more Assistant Vice Presidents, who shall have such authority and shall
perform such duties as may from time to time be prescribed by the Board.
The Board of Directors may appoint one or more Assistant Corporate
Secretaries and one or more Assistant Treasurers, and such other officers
as may be deemed necessary, who shall have such authority and shall perform
such duties as may from time to time be prescribed by the Board. Vacancies
occurring among the officers of the corporation shall be filled by the
Board of Directors. Officers elected by the Board shall hold office until
the next annual meeting of the Directors and until their successors are
elected and qualified, provided that any officer may be removed at any time
by the affirmative vote of a majority of the whole Board. All other
officers, agents and employees shall hold office during the pleasure of the
Board or the officer appointing them. Any two or more offices may be held
by the same person, with the exception that the Chairman of the Board of
Directors and President shall not also hold the office of Secretary or
Treasurer.
Section 2. Chairman of the Board and President. The Chairman of the
Board and President shall be the chief executive officer of the Company.
He shall preside at all meetings of stockholders and of the Board of
Directors. Except as otherwise provided in these By-laws or ordered by the
Board of Directors, he shall appoint all committees of the Board of
Directors. Subject to the control and direction of the Board, he shall
have general charge of the affairs and business of the Company and general
charge and supervision of all the officers, agents, and employees of the
Company. He may sign, with the Corporate Secretary or an Assistant
Corporate Secretary, any or all certificates for shares of stock of the
Company. He may sign and execute in the name of the Company all deeds,
mortgages, bonds, contracts, powers of attorney, or other instruments
authorized by the Board, except in cases where the signing and execution
thereof shall be expressly delegated by the Board or by these By-laws to
some other officer or agent of the Company, and he may, without previous
authority of the Board, make, in the name of the Company, such contracts,
leases, and other agreements as the ordinary conduct of the Company's
business requires. He may sign and endorse notes, drafts, and checks. He
shall have power to select and appoint all necessary officers and servants,
except those elected or appointed or required to be elected or appointed by
the Board, and he shall also have power to remove all such officers and
servants and to make appointments to fill the vacancies. In general, he
shall exercise all powers and perform all duties incident to the principal
executive office of the Company and such other powers and duties as may
from time to time be assigned to him by the Board or be prescribed by these
By-laws. He shall have general and active management of and exercise
general supervision over the business and property of the Company. He may
delegate any of his powers to any Vice President of the Company.
Section 3. Vice Presidents. Each Vice President shall exercise such
powers and perform such duties as may from time to time be assigned to him
by the Board of Directors or the Chairman. In the absence or disability of
the Chairman, the Executive Vice President shall exercise the powers and
perform the duties of the President.
Section 4. Treasurer. The Treasurer shall have custody of such funds
and securities of the Company as may come to his hands or be committed to
his care by the Board of Directors. When necessary or proper, he shall
endorse on behalf of the Company, for collection, checks, notes, or other
obligations, and shall deposit the same to the credit of the Company, in
such bank or banks or depositories as the Board of Directors, or the
President, may designate. He may sign receipts or vouchers for payments
made to the Company, and the Board of Directors may require that such
receipts or vouchers shall also be signed by some other officer to be
designated by them. Whenever required by the Board of Directors, he shall
render a statement of his cash accounts and such other statements
respecting the affairs of the Company as may be requested. He shall keep
proper and accurate accounts of receipts and disbursements and other
matters pertaining to his office. He shall perform all acts incident to
the office of Treasurer, subject to the control of the Board. In the
discretion of the Board of Directors, he may be required to give a bond in
such amount and containing such conditions as the Board of Directors may
approve, and such bond may be the undertaking of a surety company, and the
premium therefor may be paid by the Company.
Section 5. Corporate Secretary. The Corporate Secretary shall be
sworn to the faithful discharge of his duties. He shall record the votes
and proceedings of the stockholders and of the Board of Directors in a book
or books kept for that purpose, and shall attend all meetings of the
Directors and stockholders. He shall keep in safe custody the seal of the
Company, and, when required by the Board of Directors, or when any
instrument shall have been signed by the President, or any other officer
duly authorized to sign the same, or when necessary to attest any
proceedings of the stockholders or Directors, shall affix it to any
instrument requiring the same, and shall attest the same with his
signature. He shall attend to the giving and serving of notices of
meetings. He shall have charge of such books and papers as properly belong
to his office or as may be committed to his care by the Board of Directors.
He shall perform such other duties as appertain to his office or as may be
required by the Board of Directors. In the absence of the Corporate
Secretary, or an Assistant Corporate Secretary, from any meeting of the
Board, the proceedings of such meeting shall be recorded by such other
person as may be appointed at the meeting for that purpose.
Section 5A. Assistant Vice President. Each Assistant Vice President
shall exercise such powers and perform such duties as may be assigned to
him by the Board of Directors.
Section 6. Assistant Corporate Secretary. Each Assistant Corporate
Secretary shall be vested with the same powers and duties as the Corporate
Secretary, and any act may be done or duty performed by an Assistant
Corporate Secretary with like effect as though done or performed by the
Corporate Secretary. He shall have such other powers and perform such
other duties as may be assigned to him by the Board of Directors.
Section 7. Assistant Treasurer. Each Assistant Treasurer shall be
vested with the same powers and duties as the Treasurer, and any act may be
done or duty performed by an Assistant Treasurer with like effect as though
done or performed by the Treasurer. He shall have such other powers and
perform such other duties as may be assigned to him by the Board of
Directors.
Section 8. Execution of Checks, etc. The funds of the Company shall
be deposited in such banks or trust companies as the Board of Directors
from time to time shall designate and shall be withdrawn only on checks or
drafts of the Company for the purposes of the Company. All checks, drafts,
notes, acceptances and endorsements of the Company shall be signed in such
manner and by such officer or officers or such individual or individuals as
the Board of Directors from time to time by resolution shall determine. If
and to the extent so authorized by the Board of Directors, such signature
or signatures may be facsimile. Only checks, drafts, notes, acceptances
and endorsements signed in accordance with such resolution or resolutions
shall be the valid checks, drafts, notes, acceptances or endorsements of
the Company.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
The corporation shall, to the fullest extent to which it is empowered
to do so by the General Corporation Law of Delaware, or any other
applicable laws, as from time to time in effect, and in the manner therein
provided, indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a
director or officer of another corporation, partnership, joint venture,
trust or other enterprise, against all expenses (including attorney's
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding.
Expenses incurred by an officer or director of the corporation in
defending a civil or criminal action, suit or proceeding shall be paid by
the corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director
or officer to repay such amount of it shall ultimately be determined that
he or she is not entitled to be indemnified as authorized by the General
Corporation Law of the State of Delaware. Expenses incurred in defending a
civil or criminal action, suit or proceeding by any other person entitled
to claim indemnification under the preceding paragraph may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon such terms and conditions as the Board of Directors of the
corporation deems appropriate.
The provisions of this Article shall be deemed to be a contract
between the corporation and each director or officer who serves in any such
capacity at any time while this Article and the relevant provisions of the
General Corporation Law of Delaware, or other applicable law, if any, are
in effect, and any repeal or modification of any such law shall not affect
any rights or obligations then existing with respect to any state of facts
then or theretofore existing or any action, suit or proceeding theretofore
or thereafter brought or threatened based in whole or in part upon any such
state of facts.
Persons who are not covered by the foregoing provisions of this
Article and who are employees or agents of the corporation, or are serving
at the request of the corporation as employees or agents of another
corporation, partnership, joint venture, trust or other enterprise, may be
indemnified to the extent authorized at any time or from time to time by
the Board of Directors of the corporation.
The indemnification and advancement of expenses provided or permitted
by this Article shall not be deemed exclusive of any other rights to which
those indemnified or entitled to advancement of expenses may be entitled
under any other by-law or any agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office,
and shall continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors
and administrators of such a person.
The corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity or arising
out of his status as such, whether or not the corporation would have the
power to indemnify him against such liability under the provisions of this
Article.
ARTICLE VI
SHARES OF STOCK
Section 1. Certificates of Stock. All certificates for shares of the
capital stock of the Company shall be in such form, not inconsistent with
the Certificate of Incorporation of the Company, as shall be approved by
the Board of Directors, and shall be signed by the Chairman of the Board of
Directors, the President, or a Vice President, and Treasurer or an
Assistant Treasurer, or the Corporate Secretary or an Assistant Corporate
Secretary of the Company, and shall not be valid unless so signed;
provided, however, that where such certificate is signed (1) by a transfer
agent or an assistant transfer agent or (2) by a transfer clerk acting on
behalf of the Company and a registrar, the signature of any such Chairman
of the Board of Directors, President, Vice President, Treasurer, Assistant
Treasurer, Corporate Secretary or Assistant Corporate Secretary, may be
facsimile. In case any officer or officers who shall have signed, or whose
facsimile signature or signatures shall have been used on, any such
certificate or certificates, shall cease to be such officer or officers of
the Company, whether because of death, resignation, or otherwise, before
such certificate or certificates shall have been delivered by the Company,
such certificate or certificates may nevertheless be adopted by the Company
and be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures
shall have been used thereon had not ceased to be such officer or officers
of the Company. All certificates shall be consecutively numbered and the
name of the person owning the shares represented thereby, with the number
of such shares, and the date of issue, shall be entered on the Company's
books. All certificates surrendered shall be cancelled, and no new
certificates issued until the former certificates for the same number of
shares shall have been surrendered and cancelled, except in cases provided
for in Section 4 of this Article.
Section 2. Transfer of Shares. (a) Transfers of stock shall be made
upon the books of the Company by the holder in person or by attorney, upon
the surrender and cancellation of the certificate or certificates for such
shares. But the Board of Directors may appoint one or more suitable banks
and/or trust companies as transfer agents and/or registrars of transfers,
for facilitating transfers of any class of stock of the Company by the
holders thereof under such regulations as the Board of Directors may from
time to time prescribe. Upon such appointment being made, all certificates
of stock of such class thereafter issued shall be countersigned by one of
such transfer agents and/or one of such registrars of transfer, and shall
not be valid unless so countersigned. (b) The stock transfer books may be
closed, by order of the Board of Directors, for a period not exceeding
fifty (50) days preceding the date of any meeting of stockholders or the
date for the payment of any dividend or the date for the allotment of
rights or the date when any change or conversion or exchange of capital
stock shall go into effect or for a period of not exceeding fifty (50) days
in connection with obtaining the consent of stockholders for any purpose;
provided, however, that, in lieu of closing the stock transfer books as
aforesaid, the Board of Directors, in its discretion, may fix and is hereby
authorized to fix in advance a date, not exceeding sixty (60) days
preceding the date of any meeting of stockholders or the date for the
payment of any dividend or the date for the allotment of rights or the date
when any change or conversion or exchange of capital stock shall go into
effect or a date in connection with obtaining such consent, as a record
date, for the determination of the stockholders entitled to notice of and
to vote at any such meeting and any adjournment thereof, or entitled to
receive payment of any such dividend, or to any such allotment of rights,
or to exercise the rights in respect of any such change, conversion or
exchange of capital stock, or to give such consent, and in such case such
stockholders and only such stockholders as shall be stockholders of record
on the date so fixed shall be entitled to such notice of and to vote at
such meeting and any adjournment thereof, or to receive payment of such
dividend, or to receive such allotment of rights, or to exercise such
rights, or to give such consent, as the case may be, notwithstanding any
transfer of any stock on the books of the corporation after any such record
date fixed as aforesaid.
Section 3. Addresses of Stockholders. Every stockholder shall
furnish the Corporate Secretary with an address to which notices of
meetings and all other notices may be served upon or mailed to him, and in
default thereof notices may be addressed to him at his last known address
or at the office of the Company in Huron, South Dakota.
Section 4. Lost and Destroyed Certificates. The Board of Directors
may direct that a new certificate or certificates may be issued in place of
any certificate or certificates theretofore issued by the Company, alleged
to have been lost or destroyed, and the Board of Directors, when
authorizing the issuance of such new certificate or certificates, may, in
their discretion, and as a condition precedent thereto, require the owner
of such lost or destroyed certificate or certificates or his legal
representatives to give to the Company a bond in such sum as they may
direct, as indemnity against any claim that may be made against the
Company.
Section 5. Regulations. The Board of Directors shall have power and
authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer and registration of certificates for shares
of the capital stock of the Company.
ARTICLE VII
DIVIDENDS AND WORKING CAPITAL
The Board of Directors may declare dividends from the surplus or net
profits of the corporation over and above the amount which from time to
time may be fixed by the Board of Directors as the amount to be reserved as
a working capital, as they may in their discretion, from time to time
determine. Such dividends may be declared by the Board at any meeting,
either regular or special, at which a quorum is present. The dividends
upon the preferred stock, if and when declared, shall be payable quarterly
on the first days of December, March, June and September in each year. Any
dividends so declared upon the common stock shall be payable upon such
dates as may from time to time be fixed by the Board. The power to fix the
working capital of the corporation shall be, and is hereby conferred upon
the Board of Directors, and the Board of Directors may from time to time
fix the sum which shall be set aside or reserved, over and above the
corporation's capital stock paid in, as a working capital for the
corporation, and from time to time may increase, diminish and vary the same
in their absolute discretion.
ARTICLE VIII
SEAL
The common corporate seal is, and until otherwise ordered, and
directed by the Board of Directors shall be, an impression upon paper or
wax, bearing the name of the corporation and the words "Corporate Seal -
Delaware." One or more duplicate dies for impressing such seal may be kept
and used.
ARTICLE IX
AMENDMENT TO BY-LAWS
These By-laws may be altered, amended or repealed by a vote of a
majority of all the Directors at any regular or special meeting of the
Board, provided notice of such proposed alteration, amendment or repeal
shall have been included in the notice of such meeting or shall have been
waived by all the Directors. These By-laws may also be altered, amended or
repealed at any annual meeting of the stockholders, or at any special
meeting of the stockholders, provided notice of the proposed alteration,
amendment or repeal shall have been included in the notice of such special
meeting or shall have been waived by all the stockholders.