Exhibit 3.1
BYLAWS OF
MDU RESOURCES GROUP, INC.
November 16, 2006
TABLE OF CONTENTS
TO BYLAWS
Page No.
OFFICES...................................................................1
Registered Office....................................................1
Other Offices........................................................1
MEETINGS OF STOCKHOLDERS..................................................1
Place of Meetings....................................................1
Annual Meetings......................................................1
Notice of Annual Meeting.............................................1
Stockholders List....................................................2
Notice of Special Meeting............................................2
Quorum...............................................................2
Voting Rights........................................................3
Notice of Stockholder Nominees.......................................3
Notice of Stockholder Business.......................................4
DIRECTORS.................................................................5
Authority of Directors...............................................5
Qualifications.......................................................5
Place of Meetings....................................................5
Annual Meetings......................................................5
Regular Meetings.....................................................5
Special Meetings.....................................................6
Quorum...............................................................6
Participation of Directors by Conference Telephone...................6
Written Action of Directors..........................................6
Committees...........................................................6
Reports of Committees................................................7
Compensation of Directors............................................7
Chairman of the Board................................................7
Lead Director........................................................7
NOTICES...................................................................8
Notices..............................................................8
Waiver...............................................................8
OFFICERS..................................................................8
Election, Qualifications.............................................8
Additional Officers..................................................8
Salaries.............................................................8
Term.................................................................9
Chief Executive Officer..............................................9
The President........................................................9
The Vice Presidents..................................................9
The Secretary and Assistant Secretaries.............................9
Treasurer and Assistant Treasurers..................................10
General Counsel.....................................................10
Authority and Duties................................................11
Execution of Instruments............................................11
Execution of Proxies................................................11
CERTIFICATES OF STOCK....................................................11
Certificates........................................................11
Signatures..........................................................12
Special Designation on Certificates.................................12
Lost Certificates...................................................12
Transfers of Stock..................................................12
Record Date.........................................................12
Registered Stockholders.............................................13
GENERAL PROVISIONS.......................................................13
Dividends...........................................................13
Checks..............................................................13
Fiscal Year.........................................................13
Seal................................................................14
Inspection of Books and Records.....................................14
Amendments..........................................................14
Indemnification of Officers, Directors, Employees and Agents;
Insurance...........................................................14
BYLAWS OF
MDU RESOURCES GROUP, INC.
OFFICES
1.01 Registered Office. The registered office shall be in the City of
Wilmington, County of New Castle, State of Delaware.
1.02 Other Offices. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the Board of Directors
may from time to time determine or the business of the Corporation may require.
MEETINGS OF STOCKHOLDERS
2.01 Place of Meetings. All meetings of the stockholders for the election
of Directors shall be held in the City of Bismarck, State of North Dakota, at
such place as may be fixed from time to time by the Board of Directors, or at
such other place, either within or without the State of Delaware, as shall be
designated from time to time by the Board of Directors, or, in the sole
discretion of the Board of Directors, by means of remote communication as
authorized by the laws of Delaware, as shall be stated in the notice of the
meeting. Meetings of stockholders for any other purpose may be held at such time
and place, within or without the State of Delaware, or, in the sole discretion
of the Board of Directors, by means of remote communication as authorized by the
laws of Delaware as shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
2.02 Annual Meetings. Annual meetings of stockholders, commencing with the
year 1973, shall be held on the fourth Tuesday of April in each year, if not a
legal holiday, and if a legal holiday, then on the next secular day following,
at 11:00 A.M., or at such other date and time as shall be designated from time
to time by the Board of Directors and stated in the notice of the meeting, at
which they shall elect by a plurality vote, by written ballot including, if
authorized by the Board of Directors, by ballot submitted by electronic
transmission in compliance with the laws of Delaware, a Board of Directors, and
transact such other business as may properly be brought before the meeting.
2.03 Notice of Annual Meeting. Notice, in writing or by a form of
electronic transmission in compliance with the laws of Delaware, of the annual
meeting, stating the place, if any, date and hour of the meeting, and the means
of remote communications, if
any, by which stockholders and proxy holders may be deemed to be present in
person and vote at such meeting, shall be given to each stockholder entitled to
vote at such meeting not less than ten nor more than sixty days before the date
of the meeting.
2.04 Stockholders List. The officer who has charge of the stock ledger of
the Corporation shall prepare and make, at least ten days before every meeting
of the stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, for a period of at least ten days prior to the meeting:
(i) on a reasonably accessible electronic network, provided that the information
required to gain access to such list is provided with the notice of the meeting
or (ii) during ordinary business hours, at the principal place of business of
the Corporation. If the meeting is to be held at a place, then the list shall
also be produced and kept at the time and place of the meeting during the whole
time thereof, and may be inspected by any stockholder who is present. If the
meeting is to be held solely by means of remote communication, then the list
shall also be open to the examination of any stockholder during the meeting on a
reasonably accessible electronic network, and the information required to access
the electronic list shall be provided with the notice of the meeting.
2.05 Notice of Special Meeting. Notice, in writing or by a form of
electronic transmission in compliance with the laws of Delaware, of a special
meeting, stating the place, date and hour of the meeting, the means of remote
communications, if any, by which the stockholders and proxy holders may be
deemed to be present in person and vote at such meeting, and the purpose or
purposes for which the meeting is called, shall be given not less than ten nor
more than sixty days before the date of the meeting, to each stockholder
entitled to vote at such meeting.
2.06 Quorum. The holders of a majority of the stock issued and outstanding
and entitled to vote in person or by proxy, shall constitute a quorum at all
meetings of the stockholders for the transaction of business, except as provided
herein and except as otherwise provided by statute or by the Certificate of
Incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice of the adjourned meeting, if the time,
place, thereof, and the means of remote communications, if any, by which
stockholders and proxy holders may be deemed to be present in person and vote at
such adjourned meeting are announced at the meeting at which the adjournment is
taken. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified. If the adjournment is for more than thirty
days, or if, after the adjournment, a new record
2
date is fixed for the adjourned meeting, a notice of the adjourned meeting shall
be given to each stockholder of record entitled to vote at the meeting.
2.07 Voting Rights. When a quorum is present at any meeting, the vote of
the holders of a majority of the stock having voting power, present in person or
represented by proxy, shall decide any question brought before such meeting,
unless the question is one upon which, by express provision of the statutes, the
Certificate of Incorporation or these Bylaws, a different vote is required, in
which case such express provision shall govern and control the decision of such
question. Unless otherwise provided in the Certificate of Incorporation, each
stockholder shall, at every meeting of the stockholders, be entitled to one vote
in person or by proxy for each share of the capital stock having voting power
held by such stockholder, but no proxy shall be voted on after three years from
its date, unless the proxy provides for a longer period.
2.08 Notice of Stockholder Nominees. Only persons who are nominated in
accordance with the procedures set forth in this Section 2.08 shall be eligible
for election as Directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made at the annual meeting of stockholders
by or at the direction of the Board of Directors, or by any stockholder of the
Corporation entitled to vote for the election of Directors at the meeting who
complies with the notice procedures set forth in this Section 2.08. Such
nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the Corporation.
To be timely, a stockholder's notice shall be delivered or mailed and
received at the principal executive offices of the Corporation not less than 120
days prior to the date on which the Corporation first mailed its proxy materials
for the prior year's annual meeting; provided, however, that in the event that
notice or public disclosure of the date of the meeting is given or made to
stockholders of the Corporation less than 130 days before the date on which the
Corporation first mailed its proxy materials for the prior year's annual
meeting, notice by the stockholder to be timely must be so received not later
than the close of business on the 10th day following the day on which such
notice of the date of the meeting was mailed or such public disclosure was made
by the Corporation. The stockholder's notice shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or re-election as
a Director, (i) the name, age, business address and residence address of such
person, (ii) the principal occupation or employment of such person, (iii) the
class and number of shares of the Corporation which are beneficially owned by
such person, and (iv) any other information relating to such person that is
required to be disclosed in solicitations of proxies for election of Directors,
or is otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (including without limitation such
person's written consent to being named in the proxy
3
statement as a nominee and to serving as a Director if elected); and (b) as to
the stockholder giving the notice, (i) the name and address, as they appear on
the Corporation's books, of such stockholder, and (ii) the class and number of
shares of the Corporation which are beneficially owned by such stockholder.
At the request of the Board of Directors, any person nominated by the Board
of Directors for election as a Director shall furnish to the Secretary of the
Corporation that information required to be set forth in a stockholder's notice
of nomination which pertains to the nominee. No person shall be eligible for
election as a Director of the Corporation unless nominated in accordance with
the procedures set forth in this Section 2.08.
The Chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by the Bylaws, and if the Chairman should so determine,
the Chairman shall so declare to the meeting and the defective nomination shall
be disregarded.
2.09 Notice of Stockholder Business. At an annual meeting of the
stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an annual meeting,
business must be (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, (b) otherwise
properly brought before the meeting or by the direction of the Board of
Directors, or (c) otherwise properly brought before the meeting by a
stockholder.
For business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation. To be timely, the stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation, not less than 120 days prior to the date on which the Corporation
first mailed its proxy materials for the prior year's annual meeting; provided,
however, that in the event that notice or prior public disclosure of the date of
the meeting is given or made to stockholders by the Corporation less than 130
days before the date on which the Corporation first mailed its proxy materials
for the prior year's annual meeting, notice by the stockholder to be timely must
be so received not later than the close of business on the 10th day following
the day on which such notice of the date of the annual meeting was mailed or
such public disclosure was made by the Corporation. The stockholder's notice to
the Secretary shall set forth as to each matter the stockholder proposes to
bring before the annual meeting (a) a brief description of the business desired
to be brought to the annual meeting and the reasons for conducting business at
the annual meeting, (b) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business, (c) the class
and number of shares of the Corporation which are beneficially owned by the
stockholder, and (d) any material interest of the stockholder in such business.
4
Notwithstanding anything in the Bylaws to the contrary, no business shall
be conducted at any annual meeting except in accordance with the procedures set
forth in this Section 2.09.
The Chairman of the annual meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting and, in accordance with the provisions of this Section 2.09, and if he
should so determine, the Chairman shall so declare to the meeting and such
business not properly brought before the meeting shall not be transacted.
DIRECTORS
3.01 Authority of Directors. The business of the Corporation shall be
managed by its Board of Directors which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by
the Certificate of Incorporation or by these Bylaws directed or required to be
exercised or done by the stockholders.
3.02 Qualifications. A person who is not an officer of the Corporation
shall be ineligible to serve as a Director beyond the first regular meeting of
the Board of Directors after the date he shall have attained the age of seventy
(70). A person who is a "high ranking executive" (as defined in Section 5.01) of
the Corporation shall be ineligible to serve as a Director beyond the first
regular meeting of the Board of Directors after the date he shall have attained
the age of sixty-five (65). A person shall be ineligible as a Director if, at
the time he would otherwise be eligible for election, he is a former officer of
the Corporation. Other restrictions and qualifications for Directors may be
fixed from time to time by resolution passed by a majority of the whole Board of
Directors.
3.03 Place of Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
3.04 Annual Meetings. The first meeting of each newly elected Board of
Directors shall be held at such time and place as shall be specified in a notice
given as herein provided for regular meetings of the Board of Directors, or as
shall be specified in a duly executed waiver of notice thereof.
3.05 Regular Meetings. Regular meetings of the Board of Directors may be
held at the office of the Corporation in Bismarck, North Dakota, on the second
Thursday following the first Monday of February, May, August and November of
each year; provided, however, that if a legal holiday, then on the next
preceding day that is not a legal holiday. Regular meetings of the Board of
Directors may be held at other times and other places within or without the
State of North Dakota on at least five days' notice to each Director, either
5
personally or by mail, telephone or telegram.
3.06 Special Meetings. Special meetings of the Board may be called by the
Chairman of the Board, Chief Executive Officer or President on three days'
notice to each Director, either personally or by mail, telephone or telegram;
special meetings shall be called by the Chairman, Chief Executive Officer,
President or Secretary in like manner and on like notice on the written request
of a majority of the Board of Directors.
3.07 Quorum. At all meetings of the Board, a majority of the Directors
shall constitute a quorum for the transaction of business and the act of a
majority of the Directors present at any such meeting at which there is a quorum
shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute, the Certificate of Incorporation or by these
Bylaws. If a quorum shall not be present at any meeting of the Board of
Directors, the Directors present may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present.
3.08 Participation of Directors by Conference Telephone. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, any member of
the Board, or of any committee designated by the Board, may participate in any
meeting of such Board or committee by means of conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in any meeting by means of conference
telephone or other communications equipment shall constitute presence in person
at such meeting.
3.09 Written Action of Directors. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all members of the Board or committee, as the
case may be, consent thereto in writing or by electronic transmission, and the
writing or writings or electronic transmission or transmissions are filed with
the minutes of proceedings of the Board or committee.
3.10 Committees. The Board of Directors may by resolution passed by a
majority of the whole Board designate one or more committees, each committee to
consist of two or more Directors of the Corporation. The Board may designate one
or more Directors as alternate members of any committee who may replace any
absent or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member. The Chairman of the Board shall appoint another member of the Board of
Directors to fill any committee vacancy which may occur. At all meetings of any
such committee, fifty percent of the total number of committee members shall
constitute a
6
quorum for the transaction of business and the act of a majority of the
committee members present at any such meeting at which there is a quorum shall
be the act of any such committee, except as may be otherwise specifically
provided by statute, the Certificate of Incorporation or by these Bylaws. Any
such committee shall have, and may exercise, the power and authority
specifically granted by the Board to the committee, but no such committee shall
have the power or authority to amend the Certificate of Incorporation, adopt an
agreement of merger or consolidation, recommend to the stockholders the sale,
lease or exchange of the Corporation's property and assets, recommend to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amend the Bylaws of the Corporation. Such committee or committees shall have
such name or names as may be determined from time to time by resolution adopted
by the Board of Directors.
3.11 Reports of Committees. Each committee shall keep regular minutes of
its meetings and report the same to the Board of Directors when required.
3.12 Compensation of Directors. Unless otherwise restricted by the
Certificate of Incorporation, the Board of Directors shall have the authority to
fix the compensation of Directors. The Directors may be paid their expenses, if
any, of attendance at each meeting of the Board of Directors and may be paid a
fixed sum for attendance at each meeting of the Board of Directors or a stated
salary as Director. No such payment shall preclude any Director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed compensation for attending
committee meetings.
3.13 Chairman of the Board. The Chairman of the Board of Directors shall be
chosen by the Board of Directors at its first meeting after the annual meeting
of the stockholders of the Corporation. The Chairman shall preside at all
meetings of the Board of Directors and stockholders of the Corporation, and
shall, subject to the direction and control of the Board, be its representative
and medium of communication, and shall perform such duties as may from time to
time be assigned to the Chairman by the Board.
3.14 Lead Director. At the first meeting of the Board of Directors after
the annual meeting of the stockholders, those Directors who are not employees of
the Corporation ("Non-employee Directors") shall, by a resolution adopted by a
majority of the Non-employee Directors present at the meeting, choose a Lead
Director whenever an employee Director is serving as Chairman of the Board of
Directors. During the period of time a Non-employee Director serves as Chairman
of the Board, no Lead Director will be chosen. The Lead Director shall have such
duties and responsibilities as shall be fixed from time to time by resolution
adopted by a majority of the whole Board of Directors.
7
NOTICES
4.01 Notices. Whenever, under the provisions of the statutes or of the
Certificate of Incorporation or of these Bylaws, notice is required to be given
to any Director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
Director or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to Directors may also be given by telegram or telephone. Notice to the
stockholders may also be given by a form of electronic transmission consented to
by the stockholder to whom the notice is given, as provided by the laws of
Delaware.
4.02 Waiver. Whenever notice is required to be given under any provision of
the statutes or the Certificate of Incorporation or these Bylaws, a written
waiver, signed by the person entitled to notice, or a waiver by electronic
transmission by the person entitled to notice, whether before or after the time
stated therein, shall be deemed equivalent to notice.
OFFICERS
5.01 Election, Qualifications. The officers of the Corporation shall be
chosen by the Board of Directors at its first meeting after each annual meeting
of the stockholders and shall include a President, a Chief Executive Officer, a
Vice President, a Secretary, a Treasurer and a General Counsel. The Board of
Directors may also choose additional Vice Presidents, and one or more Assistant
Vice Presidents, Assistant Secretaries and Assistant Treasurers. Any number of
offices may be held by the same person, unless the Certificate of Incorporation
or these Bylaws otherwise provide. Except for an officer serving as a Director
who may serve through the first regular meeting of the Board of Directors after
he has attained the age of sixty-five (65), no "high ranking executive" of the
Corporation may serve in that capacity beyond the date he shall have attained
the age of sixty-five (65), no "high ranking executive" shall mean the
President, the Chief Executive Officer, any Vice President, the Secretary, the
Treasurer, the General Counsel, the chief executive officers of the
Corporation's public utility divisions, and any other officer of the Corporation
so designated by the Board of Directors.
5.02 Additional Officers. The Board of Directors may appoint such other
officers and agents as it shall deem necessary, who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board.
5.03 Salaries. The salaries of all principal officers of the Corporation
shall be fixed by the Board of Directors.
8
5.04 Term. The officers of the Corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the Board
of Directors may be removed at any time by the affirmative vote of a majority of
the Board of Directors. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors.
5.05 Chief Executive Officer. The Chief Executive Officer shall, subject to
the authority of the Board of Directors, determine the general policies of the
Corporation. The Chief Executive Officer shall submit a report of the operations
of the Company for the fiscal year to the stockholders at their annual meeting
and from time to time shall report to the Board of Directors all matters within
his knowledge which the interests of the Corporation may require be brought to
the Board's notice.
5.06 The President. The President shall have general and active management
of the business of the Corporation and shall see that all orders and resolutions
of the Board of Directors are carried into effect.
5.07 The Vice Presidents. In the absence of the President or in the event
of his inability or refusal to act, the Vice President (or in the event there be
more than one Vice President, the Vice Presidents in the order designated, or in
the absence of any designation, then in the order of their election) shall
perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. The Vice
Presidents shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
5.08 The Secretary and Assistant Secretaries. The Secretary shall record
all the proceedings of the meetings of the stockholders and Directors in a book
to be kept for that purpose. He shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board of Directors, and
shall perform such other duties as may be prescribed by the Board of Directors
or Chief Executive Officer, under whose supervision he shall be. He shall have
custody of the corporate seal of the Corporation and he, or an assistant
secretary, shall have authority to affix the same to any instrument requiring
it. The Board of Directors may give general authority to any other officer to
affix the seal of the Corporation.
The Assistant Secretary, or if there be more than one, the Assistant
Secretaries in the order determined by the Board of Directors (or if there be no
such determination, then in the order of their election) shall, in the absence
of the Secretary or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the Secretary and shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
9
5.09 Treasurer and Assistant Treasurers. The Treasurer shall have the
custody of the corporate funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors.
He shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall
render to the President and the Board of Directors, at its regular meetings, or
when the Board of Directors so requires, an account of all his transactions as
Treasurer and of the financial condition of the Corporation.
If required by the Board of Directors, he shall give the Corporation a bond
(which shall be renewed every six years) in such sum and with such surety or
sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
The Assistant Treasurer, or if there shall be more than one, the Assistant
Treasurers in the order determined by the Board of Directors (or if there be no
such determination, then in the order of their election), shall, in the absence
of the Treasurer or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the Treasurer and shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
5.10. General Counsel. The General Counsel shall be the legal advisor to
the Corporation, the Chairman of the Board, the Chief Executive Officer, the
Board of Directors and committees of the Board of Directors and provide legal
counsel to all business segments of the Corporation. The General Counsel shall
be responsible for the management of all legal matters involving the
Corporation.
The General Counsel shall be responsible for the review of the adequacy of
the Corporation's corporate governance procedures and for reporting to senior
management, the Board of Directors and committees of the Board of Directors on
recommended changes, except in those instances in which such duties have been
delegated by the Board of Directors to another officer or agent of the
Corporation. The General Counsel shall have responsibility for monitoring and
assessing developments in corporate governance including, but not limited to,
stock exchange listing standards, legislative enactments, administrative agency
regulations and judicial decisions. The General Counsel shall report to senior
management, the Board of Directors and committees of the Board of Directors
regarding matters of significant importance and make recommendations regarding
10
corporate governance guidelines, policies and procedures.
5.11 Authority and Duties. In addition to the foregoing authority and
duties, all officers of the Corporation shall respectively have such authority
and perform such duties in the management of the business of the Corporation as
may be designated from time to time by the Board of Directors.
5.12 Execution of Instruments. All deeds, bonds, mortgages, notes,
contracts and other instruments shall be executed on behalf of the Corporation
by the Chief Executive Officer, the President, or any Vice President or
Assistant Vice President or such other officer or agent of the Corporation as
shall be duly authorized, by the Board of Directors. Any officer or agent
executing any such documents on behalf of the Corporation may do so (except as
otherwise required by applicable law) either under or without the seal of the
Corporation and either individually or with an attestation, according to the
requirements of the form of the instrument. If an attestation is required, the
document shall be attested by the Secretary or an Assistant Secretary or by the
Treasurer or an Assistant Treasurer or any other officer or agent authorized by
the Board of Directors. When authorized by the Board of Directors, the signature
of any officer or agent of the Corporation may be a facsimile.
5.13 Execution of Proxies. All capital stocks in other corporations owned
by the Corporation shall be voted at the meetings, regular and/or special, of
stockholders of said other corporations by the Chief Executive Officer or
President of the Corporation, or, in the absence of any of them, by a Vice
President, and in the event of the presence of more than one Vice President of
the Corporation, then by a majority of said Vice Presidents present at such
stockholder meetings, and the Chief Executive Officer or President and Secretary
of the Corporation are hereby authorized to execute in the name and under the
seal of the Corporation proxies in such form as may be required by the
corporations whose stock may be owned by the Corporation, naming as the attorney
authorized to act in said proxy such individual or individuals as said Chief
Executive Officer or President and Secretary shall deem advisable, and the
attorney or attorneys so named in said proxy shall, until the revocation or
expiration thereof, vote said stock at such stockholder meetings only in the
event that none of the officers of the Corporation authorized to execute said
proxy shall be present thereat.
CERTIFICATES OF STOCK
6.01 Certificates. Shares of the Corporation's stock may be certificated or
uncertificated, as provided under Delaware law. All certificates of stock of the
Corporation shall be numbered and shall be entered in the books of the
Corporation as they are issued. They shall exhibit the holder's name and number
of shares and shall be signed by the
11
Chairman of the Board of Directors, or the Chief Executive Officer, the
President or a Vice President and by the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary.
6.02 Signatures. Any of or all the signatures on the certificates may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
6.03 Special Designation on Certificates. If the Corporation shall be
authorized to issue more than one class of stock or more than one series of any
class, the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations, or restrictions of such preferences and/or
rights shall be set forth in full or summarized on the face or back of the
certificate which the Corporation shall issue to represent such class or series
of stock, provided, that, except as otherwise provided in Section 202 of the
General Corporation Law of Delaware in lieu of the foregoing requirements, there
may be set forth on the face or back of the certificate which the Corporation
shall issue to represent such class or series of stock, a statement that the
Corporation will furnish, without charge to each stockholder who so requests,
the powers, designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
6.04 Lost Certificates. The Board of Directors may direct a new certificate
or certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
6.05 Transfers of Stock. Transfers of stock shall be made on the books of
the Corporation only by the record holder of such stock, or by attorney lawfully
constituted in writing, and, in the case of stock represented by a certificate,
upon surrender of the certificate.
6.06 Record Date. In order that the Corporation may determine the
stockholders
12
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty days nor less than ten days before the date
of such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
6.07 Registered Stockholders. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
GENERAL PROVISIONS
7.01 Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the Certificate of Incorporation.
Before payment of any dividend, there may be set aside out of the funds of
the Corporation available for dividends such sum or sums as the Directors from
time to time, in their absolute discretion, think proper as a reserve or
reserves for meeting contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the Directors shall think conducive to the interest of the
Corporation, and the Directors may modify or abolish any such reserve in the
manner in which it was created.
7.02 Checks. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as
the Board of Directors may from time to time designate or as designated by an
officer of the company if so authorized by the Board of Directors.
7.03 Fiscal year. The fiscal year of the Corporation shall be the calendar
year.
13
7.04 Seal. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or imprinted, or otherwise.
7.05 Inspection of Books and Records. Any stockholder of record, in person
or by attorney or other agent, shall, upon written demand under oath stating the
purpose thereof, have the right, during the usual hours of business, to inspect
for any proper purpose the Corporation's stock ledger, a list of its
stockholders, and its other books and records, and to make copies or extracts
therefrom. A proper purpose shall mean a purpose reasonably related to such
person's interest as a stockholder. In every instance where an attorney or other
agent shall be the person who seeks the right to inspection, the demand under
oath shall be accompanied by a power of attorney or such other writing which
authorizes the attorney or other agent to so act on behalf of the stockholder.
The demand under oath shall be directed to the Corporation at its registered
office in the State of Delaware or at its principal place of business in
Bismarck, North Dakota.
7.06 Amendments. These Bylaws may be altered, amended or repealed or new
Bylaws may be adopted by the stockholders or by the Board of Directors, when
such power is conferred upon the Board of Directors by the Certificate of
Incorporation, at any regular meeting of the stockholders or of the Board of
Directors or at any special meeting of the stockholders or of the Board of
Directors if notice of such alteration, amendment, repeal or adoption of new
Bylaws be contained in the notice of such special meeting.
7.07 Indemnification of Officers, Directors, Employees and Agents;
Insurance.
(a) The Corporation shall 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
(other than an action by or in the right of the Corporation) by reason of the
fact that such person 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 expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
such person's conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which such person
reasonably believed to be in or not opposed to the best interest of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable
14
cause to believe that such person's conduct was unlawful.
(b) The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that such person 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 expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the
best interests of the Corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Corporation, unless and only to the extent
that the Court of Chancery or the court in which such action or suit was
brought, shall determine upon application that, despite the adjudication of
liability but in view of all circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
(c) To the extent that a present or former director, officer, employee or
agent of a corporation has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in subsections (a) and (b), or in
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this Section
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the present or
former director, officer, employee or agent is proper in the circumstances
because such person has met the applicable standard of conduct as set forth in
subsections (a) and (b) of this Section. Such determination shall be made (1) by
a majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum, or (3) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (4) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by a present or former
officer or director in defending any civil, criminal, administrative or
investigative 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 the director or officer to repay such
amount if it shall ultimately be determined that such person is not entitled to
be indemnified by the Corporation as authorized in this Section. Once the
15
Corporation has received the undertaking, the Corporation shall pay the officer
or director within 30 days of receipt by the Corporation of a written
application from the officer or director for the expenses incurred by that
officer or director. In the event the Corporation fails to pay within the 30-day
period, the applicant shall have the right to sue for recovery of the expenses
contained in the written application and, in addition, shall recover all
attorneys' fees and expenses incurred in the action to enforce the application
and the rights granted in this Section 7.07. Expenses (including attorneys'
fees) incurred by other employees and agents shall be paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this Section shall not be deemed exclusive
of any other rights to which those seeking indemnity or advancement of expenses
may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office.
(g) The Corporation may 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 such person and
incurred by such person in any such capacity, or arising out of such person's
status as such, whether or not the Corporation would have the power to indemnify
such person against such liability under the provisions of this Section.
(h) For the purposes of this Section, references to "the Corporation"
include all constituent corporations absorbed in a consolidation or merger, as
well as the resulting or surviving corporation, so that any person who is or was
a director, officer, employee or agent of such a constituent corporation or is
or was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the provisions
of this Section with respect to the resulting or surviving corporation as such
person would if such person had served the resulting or surviving corporation in
the same capacity.
(i) For purposes of this Section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such person
16
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this
Section.
(j) The indemnification and advancement of expenses provided by, or granted
pursuant to, this Section shall, unless otherwise provided when authorized or
ratified, 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.
17