SECOND AMENDED AND SUPERSEDING
BY-LAWS
OF
PENTAIR, INC.
ADOPTED ON JANUARY 15, 1982
As Amended Through July 21, 1995
All Such Amendments Are Specifically Identified
ARTICLE I
Shareholders' Meetings
Section 1. Place of Meeting. The meetings of the
shareholders shall be held at the principal place of business of
the Corporation or at any other place designated by the Board of
Directors or consented to in writing by all of the shareholders
entitled to vote thereat.
Section 2. Annual Meeting. Each year, commencing in
1982, the annual meeting of shareholders shall be held on such
date after March 1 and prior to June 1 and at such place as the
Board of Directors shall select by appropriate resolution. This
meeting shall be the only regular meeting of the shareholders in
any one calendar year.
Section 3. Special Meetings. (Amended on July 21, 1995.)
Special meetings of the shareholders may be called for any
purpose or purposes at any time by:
(a) the Chief Executive Officer;
(b) the Chief Financial Officer;
(c) two or more members of the Board of Directors;
(d) the Chairman of the Board; or
(e) a shareholder or shareholders holding ten percent (10%)
or more of the voting power of all shares entitled to vote except
that a special meeting for the purpose of considering any action
to directly or indirectly facilitate or effect a business combination,
including any action to change or otherwise effect the
composition of the Board of Directors for that purpose, must be
called by twenty five percent (25%) or more of the voting power
of all shares entitled to vote. Any shareholder or shareholders
demanding a special meeting of shareholders in accordance with
the foregoing may demand a special meeting only by written
notice of demand given to the Chief Executive Officer or Chief
Financial Officer, which written notice shall set forth the specific
purposes of the meeting.
Section 4. Notice of Meeting. Written notice stating the
place, day and hour of the meeting, and in the case of a special
meeting, the purpose or purposes for which the meeting is called,
shall be mailed or personally delivered not less than ten days nor
more than sixty days prior to the date of the meeting, by the
Secretary, to each shareholder of record entitled to vote at such
meeting. Waiver by a shareholder of notice of a shareholders'
meeting, signed by him, whether before or after the time of such
meeting, or attendance at such meeting, shall be equivalent to
the giving of such notice. In case of adjournment of a meeting
from time to time, no further notice of the adjourned meeting shall
be necessary if an announcement is made at the meeting where
the adjournment is had, specifying the place, day and hour of the
adjourned meeting.
Section 5. Voting Rights. (Amended on April 21, 1987.)
Every holder of record, as provided below, of common stock or
preferred stock having voting rights shall be entitled to vote, in
person or by proxy executed in writing and delivered to the
Secretary at or before the meeting, and he shall be entitled to
such vote for each share of stock standing in his name as shall
be fixed by the Articles of Incorporation or by resolution of the
Board of Directors; provided that no revocable proxy shall be
voted if executed more than three years prior to the date of a
meeting. Except as may otherwise be provided by the Board of
Directors from time to time, only voting shareholders of record at
the close of business on a day ten days prior to the date of a
meeting shall be entitled to vote at such meeting.
Section 6. Quorum; Action by Shareholders.
(a) The presence, in person or by proxy, of the holders of a
majority of the shares entitled to vote at the meeting shall
constitute a quorum for the transaction of business. In the
absence of a quorum any meeting may be adjourned from time to
time. The shareholders present at a duly called or held meeting
may continue to do business until adjournment, notwithstanding
the withdrawal of enough shareholders to leave less than a
quorum.
(b) The shareholders shall take action by the affirmative vote
of the holders of a majority of the voting power of the shares
present at a meeting, except where the articles of incorporation
or statute shall otherwise provide.
ARTICLE II
Directors
Section 1. Number of Directors; Classification. (Amended
on April 23, 1991.) The business of the Corporation shall be
managed by a Board of not less than three (3) nor more than
fifteen (15) directors, who need not be shareholders of the
Corporation; and the decisions of the Board shall be by a majority
of the members present.
The Board of Directors has been divided into three classes, as
nearly equal in number as may be, with the terms of office for
each class staggered so that the term for only one class expires
each year. When the number of directors is changed, any newly
created directorships or decrease in directorships shall be
apportioned among the classes so as to make all classes as
nearly equal in number as possible. Such classification of any
newly created directorship shall be fixed by the Board.
Section 2. Tenure. At each annual meeting the
shareholders shall elect directors to fill the vacancies of such
directors whose terms have expired. Each newly elected director
shall hold office for a term expiring at the third succeeding annual
meeting or until his successor is elected and qualifies.
Section 3. Vacancies. (Amendment approved by Board on
July 20, 1990 and Ratified by Shareholders on April 23, 1991.)
Any vacancy occurring in the Board of Directors may be filled by
the affirmative vote of a majority of the remaining directors or by
election at a meeting of shareholders. Any director who is
elected to fill a vacancy by the remaining directors shall be
required to stand for election at the next regular or special
meeting of the shareholders, regardless of whether the class of
directors into which such director has been placed will otherwise
be elected at such meeting.
Section 4. Meetings of the Board; Notice. (Amended on
October 18, 1985.) The Board of Directors shall meet each year
immediately after the annual meeting of shareholders, at the
same place. No notice of any kind to either old or new members
shall be necessary for such annual meeting or for any regular
meeting of the directors fixed from time to time by resolution of a
majority of the Board of Directors. Other meetings of the Board
of Directors may be held upon three (3) days' written notice upon
the call of the Chairman, the Chief Executive Officer, President
or any directors. Notice may be waived in writing before or after
the time of such meeting, and attendance of a director at a
meeting shall constitute a waiver of notice thereof. Neither the
business to be transacted at, nor the purpose of, any meeting
need be specified in the notice of such meeting.
Section 5. Quorum. A majority of the directors shall
constitute a quorum for the transaction of business; provided,
however, that if any vacancies exist for any reason, the remaining
directors shall constitute a quorum for the filling of such
vacancies.
Section 6. Removal of Directors. (Amended on April 22,
1986.)
(a) A director may be removed by the Board at any time, but
only with good cause shown therefor, if (1) the director was
appointed by the board to fill a vacancy and shareholders have
not since such appointment elected directors in such director's
class; and (2) a majority of the other directors present
affirmatively vote to remove the director.
(b) Any one or all of the directors may be removed with good
cause shown therefor, at any meeting of the shareholders called
for that purpose, by the affirmative vote of 60% of the voting
power of the shares entitled to vote provided that removal is not
opposed by more than 25% of the voting power of the shares
entitled to vote.
(c) "Good cause" for the purpose of this section shall mean (i)
conviction of a crime involving moral turpitude, (ii) dishonesty in
dealings with the Corporation or with respect to its assets or (iii)
engaging in competition, directly or indirectly, with the
Corporation, usurping any corporate opportunity or advantage or
knowingly violating Section 302A.255 of Minnesota Statutes, as
amended, with respect to director conflicts of interest, without the
prior consent of the Board of Directors after complete disclosure
of all material facts with respect thereto.
(d) This section 6 may be amended or repealed at any annual
or special meeting of the shareholders by the affirmative vote of
the holders of 60% of the voting power of all shareholders
entitled to vote, provided such amendment or repeal shall not
receive the negative vote of the holders of more than 25% of the
voting power of all shareholders entitled to vote.
Section 7. Committee of Disinterested Persons.
(a) The board may establish a committee composed of two or
more disinterested directors or other disinterested persons to
determine whether it is in the best interests of the Corporation to
pursue a particular legal right or remedy of the Corporation and
whether to cause the dismissal or discontinuance of a particular
proceeding that seeks to assert a right or remedy on behalf of the
Corporation.
(b) For purposes of this Section 7, a director or other person
is "disinterested" if the director is not the owner of more than one
percent of the outstanding shares of, or a present or former
officer, employee, or agent of, the Corporation or of a related
corporation and has not been made or threatened to be made a
party to the proceeding in question.
(c) The committee, once established, is not subject to
direction, control, or termination by the Board. A vacancy on the
committee may be filled by a majority vote of the remaining
members. The good faith determinations of the committee are
binding upon the Corporation and its directors, officers and
shareholders. The committee's existence shall terminate upon
issuance of the final written report of its determinations.
(d) A disinterested person appointed to a committee so
established is deemed to be a director for the period of existence
of the committee but has no power to act as a director except in
conjunction with the activities of the committee.
Section 8. Executive Committee. (Adopted on April 26,
1983.) The Board of Directors may by resolution or resolutions,
passed by a majority of the total number of directors, designate
an Executive Committee of three directors, one of whom shall be
an executive of the Company (an "inside" board member) and
one of whom shall be independent of management (an "outside"
board member). The Board shall designate one member of this
Committee as Chairman. The Executive Committee shall not
have authority to alter or amend the By-Laws, but shall exercise
all other powers of the Board of Directors between the meetings
of said Board, except the power to fill vacancies in the Board and
in their own membership, which vacancies shall be filled by the
Board of Directors. The Board of Directors shall have the power
at any time to change the membership of or to dissolve the
Executive Committee. The Committee shall take no action
except by unanimous approval of all its members. The
Committee shall meet at the request of the Chairman or any
member with proper notice. Regular minutes will be kept of
Executive Committee proceedings and shall be reported at the
next following meeting of the Board of Directors to become a part
of the record at that Board meeting at which they are presented.
Section 9. Nominations. (Adopted on October 18, 1985.)
No candidate may be nominated for election as a director at the
annual meeting of shareholders, and no votes cast in his or her
name for election shall be counted, unless the nomination of
such person has been previously submitted to the Board of
Directors or its nominating committee in accordance with the
provisions of this Article II. If such nomination has been duly
submitted, the nominee may be nominated for election at any
meeting held within twelve months thereafter, notwithstanding the
fact that such nominee is not listed as an alternate candidate in
the proxy furnished by management.
Section 10. Designation of Nominees. (Adopted on October
18, 1985 and Amended on March 6, 1990.) The Board of
Directors, or a nominating committee duly appointed by the Board
and composed of directors not candidates for election at the
annual meeting, shall have the sole authority to designate
candidates to be nominated by management for election as
directors of the Corporation by the shareholders.
Any holder of voting shares of the Corporation may submit the
nomination of a candidate or candidates for election as director at
the next meeting of shareholders at which an election is to be
held.
Section 11. Information Required. (Adopted on October 18,
1985 and Amended on March 6, 1990.) Each nomination for the
office of director must be submitted to the Secretary of the
Corporation no later than sixty (60) days following the end of the
Corporation's fiscal year. Nominations shall only be deemed to
have been submitted on the date on which all of the following has
been received by the Corporation:
(a) all information about the nominee which may be required
to be provided with any proxy or information statement pursuant
to the Securities Exchange Act of 1934, as amended, and rules
promulgated thereunder;
(b) a completed copy of the questionnaire required by the
Corporation for all director nominees, executed by the nominee;
(c) a statement signed by the nominee consenting to his
nomination and agreeing, if elected, to serve as a director of the
Corporation; and
(d) if submitted by a shareholder, appropriate evidence that
the person submitting the nomination is a shareholder of the
Corporation.
Copies of all appropriate forms for nomination required
hereunder shall be made available by the Secretary of the
Corporation upon request of, and without charge to, any
shareholder.
Section 12. Alternate Nominees. (Adopted on October 18,
1985.) The Board of Directors, or its duly appointed nominating
committee, may designate one or more nominees submitted by
shareholders in accordance with Section 11 hereof, to appear as
alternate candidates on any proxy solicited by, or in any proxy or
information statement furnished by, management in connection
with such annual meeting. The number of alternate candidates
for election shall not exceed the number of directors to be elected
at the annual meeting for which nominations are made. The
Board of Directors, or its duly appointed nominating committee,
may use any means it deems reasonably appropriate to
determine which shareholder nominees, if any, may be listed as
alternate candidates on management's proxy and in any proxy or
information statement supplied by the Corporation in connection
with such annual meeting of shareholders.
ARTICLE III
Officers
Section 1. Number of Officers. (Amended on April 21,
1987.) The officers of the Corporation shall consist of a
Chairman of the Board, Chief Executive Officer, President, Chief
Financial Officer, Secretary, Treasurer, and such other officers
and assistant officers and agents as may be chosen by the Board
of Directors from time to time. Any two offices may be held by
one person.
Section 2. Election; Vacancies; Tenure. Officers shall be
chosen at the annual meeting of the Board of Directors, to hold
office until the next annual meeting or until their successors are
chosen and qualified. Any officer may be removed with or
without cause by the affirmative vote of a majority of the Board of
Directors. Any vacancy shall be filled by the affirmative vote of a
majority of the directors, and an officer so chosen shall hold
office until his successor is chosen and qualified. In the absence
of an election or appointment of a Chief Executive Officer or
Chief Financial Officer by the board, the person or persons
exercising the principal functions of those offices are respectively
deemed to have been elected to those offices.
Section 3. Chairman of the Board. The Chairman of the
Board of Directors shall preside at all meetings of shareholders
and directors and shall perform such other duties as may be
prescribed from time to time by these By-Laws or by the Board of
Directors.
Section 4. Chief Executive Officer. The Chief Executive
Officer shall:
(a) Have general active management of the business of the
Corporation;
(b) When present, and in absence of the Chairman, preside
at all meetings of the board and of the shareholders;
(c) See that all orders and resolutions of the board are carried
into effect;
(d) Perform such duties as shall be delegated by the board;
and
(e) Render to the Board, whenever requested, an account of
all transactions by the Chief Executive Officer.
Section 5. President. The President shall:
(a) Perform such duties as shall be delegated by the Board or
by the Chief Executive Officer; and
(b) Render to the Chief Executive Officer or the Board,
whenever requested, an account of all transactions by the
President.
Section 6. Chief Financial Officer. The Chief Financial
Officer shall:
(a) Keep accurate financial records for the Corporation;
(b) Deposit all money, drafts, and checks in the name of and
to the credit of the Corporation in the banks and depositories
designated by the Board;
(c) Endorse for deposit all notes, checks, and drafts received
by the Corporation as ordered by the Board, making proper
vouchers therefor;
(d) Disburse corporate funds and issue checks and drafts in
the name of the Corporation, as ordered by the Board;
(e) Render to the Chief Executive Officer or the Board,
whenever requested, an account of all transactions by the Chief
Financial Officer and of the financial condition of the Corporation;
and
(f) Perform such duties as shall be delegated by the Board or
by the Chief Executive Officer.
Section 7. Treasurer. The Treasurer shall:
(a) Perform such duties as shall be delegated by the Board,
the Chief Executive Officer or the Chief Financial Officer; and
(b) Render to the Chief Financial Officer, the Chief Executive
Officer or the Board, whenever requested, an account of all
transactions by the Treasurer.
Section 8. Vice President. Each Vice President shall
perform such duties as may be prescribed from time-to-time by
these By-Laws, the Board of Directors or the Chief Executive
Officer.
Section 9. Secretary. The Secretary shall give proper
notice of meetings of shareholders and Board of Directors and
other notices required by law or by these By-Laws. He shall
attend all meetings of the shareholders and Board of Directors
and shall maintain records of, and, whenever necessary, certify
all proceedings of the Board and the shareholders. He shall also
perform all duties as these By-Laws, the Board of Directors, or
the Chief Executive Officer may from time to time prescribe.
Section 10. Salaries. The salaries of all officers shall be
fixed by the Board of Directors and the fact that any officer is a
director shall not preclude him from receiving a salary or from
voting upon the resolution providing same.
Section 11. Contracts. (Amended on July 18, 1986.) Except
as otherwise provided by the Board of Directors from
time-to-time, all formal contracts of this Corporation shall be
executed on its behalf by the Chief Executive Officer, the
President, or the Chief Financial Officer.
Section 12. Expenses and Unreasonable Compensation. In
the event any expenses authorized to be reimbursed to an officer
of this Corporation shall be disallowed as a deduction to this
Corporation, such expenses shall be deemed to be additional
compensation to such officers for the period in which received;
provided, further, that if in the event the treatment of such
expenses as additional compensation, or any other payments of
salaries, bonuses, medical reimbursements or other benefits paid
to an officer of the Corporation shall be deemed unreasonable
compensation and disallowed as a deduction to this Corporation,
then such officer shall be obligated to immediately repay to the
Corporation the full amount of any such disallowance and the
Board of Directors shall take whatever action as, in the opinion of
counsel to the Corporation, may be deemed necessary to
collect such disallowance.
Section 13. Indemnity. Each present or future director or
officer, whether or not then in office, and the executors,
administrators, or other legal representative of any such director
or officer, shall be fully indemnified by the Corporation, in the
manner and to the extent allowed by Minnesota Statutes
302A.521, or any amendment thereto.
ARTICLE IV
Capital Stock
Section 1. Issuance of Shares. The capital stock, including
both authorized but previously unissued shares, may be issued
for such consideration, not less than the par value thereof in the
case of shares having par value, as shall be fixed from time to
time by the Board of Directors.
Section 2. Transfer of Shares. (Adopted on January 19,
1993.) The shares of the Corporation shall be transferable on
the books of the Corporation: (a) in the case of those shares
represented by certificates, only upon surrender of each
certificate representing the same or with separate written
assignment accompanying the certificates, or (b) in the case of
shares without certificates, by delivery of written assignment in
respect of the shares being transferred. In either case, such
certificate or written assignment shall be properly endorsed by
the registered holder or by his duly authorized attorney, and any
written assignment shall be in form and substance satisfactory to
the Corporation. Within a reasonable time after the issue or
transfer of shares without certificates, the Corporation shall send
the shareholder a written statement of any information required
by Section 302A.417, Subd. 7 of the Minnesota Business
Corporation Act and by Section 336.8-408 of the Minnesota
Uniform Commercial Code, as each may be amended from time
to time.
Section 3. Certificates of Stock. (Adopted on January 19,
1993.) Each holder of the shares of the Corporation shall be
entitled to a certificate signed by the Chairman, Chief Executive
Officer or President and by the Chief Financial Officer, Treasurer
or Secretary of the Corporation and sealed with the seal of the
Corporation, if any, or a facsimile thereof. The certificates shall
be in such form as shall be approved by the Board of Directors.
However, unless the Board of Directors shall provide otherwise,
and except for shares which are subject to any restriction as to
transfer, all of the shares of any or all of the Corporation's
classes or series may be issued without certificates. Shares
represented by certificates shall not be re-issued without
certificates except upon the request of the shareholder and until
the certificate is surrendered to the Corporation. A holder of such
uncertificated shares may request that a certificate be provided to
such holder by giving notice to the Secretary of the Corporation.
For the purposes of Section 3(d) of Article VIII of the Articles
of Incorporation relating to redemption of the Corporation's
shares, the term "certificates" shall mean certificates or, in the
case of shares without certificates, written assignment.
Section 4. Transfer Agent and Registrar. (Adopted on
January 19, 1993.) The Board of Directors may appoint a
transfer agent and registrar and may require that any stock
certificates issued bear the countersignature of said transfer
agent and registrar.
The Board of Directors shall have authority to make and alter
such rules and regulations as they may deem expedient
concerning issue, transfer and registration of shares of the stock
of the Corporation and rights or options relating thereto.
Section 5. Record Date. The Board of Directors may fix a
time, not exceeding sixty (60) days preceding the date of any
meeting of shareholders, as the record date for determination of
shareholders entitled to notice of and to vote at such meeting and
not exceeding forty (40) days preceding the date fixed for
payment of any dividends, delivery of any rights, or other
distribution allowed by law.
Section 6. Lost Certificates. Any person claiming a
certificate of stock to be lost, stolen, or destroyed shall furnish an
affidavit of such fact and shall furnish an appropriate bond of
indemnity in form, substance, amount and with surety satisfactory
to legal counsel for the Corporation, in which bond the
Corporation and the Transfer Agent and Registrar shall be
named as obligees.
Section 7. Definitions. (Adopted on October 18, 1985.)
The following definitions shall apply herein:
(a) "Acquiring person" means a person, corporation or other
entity proposing to make a control share acquisition, but does not
include a licensed broker/dealer or underwriter who (i) purchases
shares of the Corporation solely for purposes of resale to the
public, and (ii) is not acting in concert with an acquiring person.
(b) "Beneficial owner" includes, but is not limited to, any
person who directly or indirectly through any contract,
arrangement, understanding, relationship, or otherwise has or
shares the power to vote or direct the voting of any shares of the
Corporation and the power to dispose of, or direct the disposition
of, such shares. "Beneficial ownership" includes, but is not
limited to, the right, exercisable within 60 days, to acquire
securities through the exercise of options, warrants, or rights or
the conversion of convertible securities, or otherwise. The shares
subject to these options, warrants, rights, or conversion privileges
held by a person shall be deemed to be outstanding for the
purpose of computing the percentage of outstanding securities of
the class owned by this person, but shall not be deemed to be
outstanding for the purpose of computing the percentage of the
class owned by any other person.
A person is the beneficial owner of securities beneficially
owned by any relative or spouse or relative of the spouse
residing in the home of this person, any trust or estate in which
this person owns ten percent or more of the total beneficial
interest or serves as trustee or executor, any corporation or entity
in which this person owns ten percent or more of the equity, and
any affiliate or associate of this person.
(c) "Control share acquisition" means an acquisition of shares
of the Corporation resulting in beneficial ownership by an
acquiring person of a new range of voting power specified in
Section 8(d), but does not include any of the following:
(1) an acquisition before, or pursuant to an agreement
entered into before, the date of adoption of this section of Article
IV of the By-Laws;
(2) an acquisition by a donee pursuant to an inter vivos gift
not made to avoid the provisions of Sections 7 through 14 of
Article IV or by a distributee as defined in Minn. Stat. Section
524.2-201, clause (10);
(3) an acquisition pursuant to a security agreement not
created to avoid the provisions of Sections 7 through 14 of Article
IV;
(4) an acquisition of shares of the Corporation pursuant to
a merger or exchange of shares, if the Corporation is a party to
the transaction; or
(5) an acquisition of shares from the Corporation.
Section 8. Information Statement. (Adopted on October 18,
1985.) An acquiring person shall deliver to the Corporation at its
principal executive office an information statement containing all
of the following:
(a) The identity of the acquiring person;
(b) a reference that the statement is made under this section
of the By-Laws;
(c) the number of shares of the Corporation beneficially
owned by the acquiring person;
(d) a specification of which of the following ranges of voting
power in the election of directors would result from consummation
of the control share acquisition:
(1) at least 20 percent but less than 33-1/3 percent;
(2) at least 33-1/3 percent but not more than 50 percent;
and
(3) over 50 percent.
(e) the terms of the proposed control share acquisition,
including, but not limited to, the source of funds or other
consideration and the material terms of the financial
arrangements for the control share acquisition, plans or proposals
of the acquiring person to liquidate the Corporation, to sell all or
substantially all of its assets, or merge it or exchange its shares
with any other person, to change the location of its principal
executive office or of a material portion of its business activities,
to change materially its management or policies of employment,
to alter materially its relationship with suppliers or customers or
the communities in which it operates, or make any other material
change in its business, corporate structure, management or
personnel, and such other objective facts as would be
substantially likely to affect the decision of a shareholder with
respect to voting on the proposed control share acquisition.
Section 9. Special Meeting. (Adopted on October 18,
1985.) Within 5 days after receipt of an information statement
pursuant to Section 8, the Corporation shall call a special meeting
of the shareholders to vote on the proposed control share
acquisition. The meeting shall be held no later than 55 days after
receipt by the Corporation of the information statement, unless
the acquiring person agrees to a later date, and no sooner than
30 days after receipt of the information statement, if the acquiring
person so requests in writing when delivering the information
statement. The notice of the meeting shall be, at a minimum,
accompanied by a copy of the information statement and a
statement disclosing that the Board of Directors of the
Corporation (i) recommends acceptance of, (ii) expresses no
opinion and is remaining neutral toward, (iii) recommends
rejection of, or (iv) is unable to take a position with respect to, the
proposed control share acquisition. The notice of meeting shall
be given within 20 days after receipt of the information statement.
Section 10. Consummation of Acquisition. (Adopted on
October 18, 1985.) The acquiring person may consummate the
proposed control share acquisition if and only if both of the
following occur:
(a) the proposed control share acquisition is approved by the
affirmative vote of the holders of a majority of the voting power of
all shares entitled to vote under applicable Minnesota law; and
(b) the proposed control share acquisition is consummated
within 180 days after shareholder approval.
Section 11. Failure to Comply. (Adopted on October 18,
1985.) All shares of the Corporation acquired by an acquiring
person in violation of Section 10 shall be: (a) denied voting rights
for one year after acquisition; (b) nontransferable on the books of
the Corporation for one year after acquisition; and (c) subject to
the Corporation's option, during such one-year period, to call the
shares for redemption at the price at which the shares were
acquired. Such redemption shall occur on the date set in the call
notice, which shall not be later than 60 days after the call notice
is given.
Section 12. Proxy Solicitation. (Adopted on October 18,
1985.) Notwithstanding any contrary provision of these By-Laws,
a proxy relating to a meeting of shareholders required under
Section 9 of this Article IV must be solicited separately from the
offer to purchase or solicitation of an offer to sell shares of the
Corporation. Except for irrevocable proxies appointed in the
regular course of business and not in connection with a control
share acquisition, all proxies appointed for or in connection with
the shareholder authorization of a control share acquisition
pursuant Sections 7 through 14 of Article IV shall be at all times
terminable at will prior to the obtaining of the shareholder
authorization, whether or not the proxy is coupled with an
interest. Without affecting any vote previously taken, the proxy
may be terminated in any manner permitted by Minnesota
statutes or by giving oral notice of the termination in the open
meeting of shareholders held pursuant to Section 9 hereof. The
presence at a meeting of the person appointing a proxy does not
revoke the appointment.
Section 13. Amendments or Repeal. (Adopted on October
18, 1985.) Notwithstanding any contrary provision of these
By-Laws, the provisions of Sections 7 through 14 of this Article
may be amended or repealed by the shareholders only by the
affirmative vote of the holders of 85% of each class of shares of
the Corporation entitled to exercise the voting power of the
Corporation; provided, however, that if no person holds more
than twenty percent (20%) of the Voting Shares and there is no
control share acquisition of which the Board of Directors has
credible notice, the necessary vote for amendment or repeal may
be reduced by the Board of Directors to not less than a majority
of the outstanding shares in each class; and provided further that
no amendment or repeal of Sections 7 through 14 of this Article
adopted after the notice to shareholders referred to in Section 9
herein is given shall affect the rights of any shareholder under
said Sections 7 through 14.
Section 14. Dissenting Shareholders. (Adopted on October
18, 1985.) Shareholders dissenting from a control share
acquisition for which approval of shareholders is sought shall
have the right to obtain fair value of their shares, pursuant to the
provisions of Minnesota Statutes 302A.473 (1985), as amended.
ARTICLE V
Miscellaneous
Section 1. Seal. The corporate seal, if any, shall be circular
in form and have inscribed thereon the name of the Corporation,
the State in which it is incorporated and the words "corporate
seal."
Section 2. Fiscal Year. The fiscal year of the Corporation
shall be fixed by the Board of Directors.
ARTICLE VI
Amendments
These By-Laws may be altered, amended or repealed by the
Board of Directors, subject to the power of the shareholders, by
the affirmative vote of a majority of the shareholders entitled to
vote, at any meeting, to change or repeal such By-Laws;
provided that notice of such proposed amendment shall have
been given in the notice of such meeting. The Board of Directors
shall not make or alter any By-Law fixing their number,
qualifications, classifications or terms of office.