BYLAWS
OF
MERRILL/ALTERNATIVES, INC.
(THE "COMPANY")
ARTICLE I.
OFFICES
SECTION 1. PRINCIPAL EXECUTIVE OFFICE. The principal executive office of the
company will be determined from time to time by the Board of Directors.
SECTION 2. REGISTERED OFFICE. The registered office of the Company required by
Chapter 302A of the Minnesota Statutes to be maintained in the State of
Minnesota is as designated in the Articles of Incorporation. The Board of
directors of the Company may, from time to time, change the location of the
registered office. On or before the day that such change is to become effective,
a certificate of such change and of the new address of the new registered office
will be filed with the Secretary of State of the State of Minnesota.
SECTION 3. OTHER OFFICE. The company may establish and maintain such other
offices, within or without the State of Minnesota, as are from time to time
authorized by the Board of Directors.
ARTICLE II.
MEETINGS OF SHAREHOLDERS
SECTION 1. PLACE OF MEETINGS. Each meeting of the shareholders will be held at
the principal executive office of the Company or at such other place as may be
designated by the Board of Directors or the Chief Executive Officer; provided,
however, that any meeting called by or at the demand of a shareholder or
shareholders will be held in the county where the principal executive office of
the company is located.
SECTION 2. REGULAR MEETINGS. Regular meetings of the shareholders may be held
on an annual or other less frequent basis as determined by the Board of
Directors; provided, however, that if a regular meeting has not been held during
the immediately preceding 15 months, a shareholder or shareholders holding three
percent or more of the voting power of all shares entitled to vote may demand a
regular meeting of shareholders by written demand given to the Chief Executive
Officer of the company. If said officer fails to call and hold such meeting
within 90 days after receipt of the demand, the shareholder making the demand
will have the right and power to call such meeting. At each regular meeting the
shareholders will elect directors whose terms have expired or are due to expire
within six months after the date of the meeting and may transact such other
business, as may properly be brought before the meeting.
SECTION 3. NOTICE OF REGULAR MEETING. Unless otherwise required by law, written
notice of the time and place of each regular shareholder meeting will be mailed,
postage prepaid, at least 10 but not more than 60 days before such meeting, to
each shareholder entitled to vote thereat at his or her address as the same
appears upon the books of the Company.
SECTION 4. SPECIAL MEETINGS. A special meeting of the shareholders may be
called for any purpose or purposes at any time by the Chief Executive Officer
and will be called by the Chief Executive Officer at the request in writing of
two or more members of the Board of directors or at the request in writing of
one or more shareholders holding not less than ten percent of the voting power
of all shares of the company entitled to vote. Such request which will be by
registered mail or delivered in person to the Chief Executive Officer of the
Company specifying the purposes of the proposed meeting.
SECTION 5. NOTICE OF SPECIAL MEETINGS. Written notice of the time, place and
purpose or purposes of a special meeting will be mailed, postage prepaid, at
least five but not more than 60 days before such meeting, to each shareholder
entitled to vote at such meeting at his or her address as the same appears upon
the books of the Company.
SECTION 6. BUSINESS TO BE TRANSACTED. No business will be transacted at any
special meeting of shareholders except that stated in the notice of the meeting.
SECTION 7. WAIVER OF NOTICE. A shareholder may waive notice of the date, time,
place and purpose or purposes of a meeting of shareholders. A waiver of notice
by a shareholder entitled to notice is effective whether given before, at or
after the meeting, and whether given in writing, orally or by attendance.
Attendance by a shareholder at a meeting is a waiver of notice of that meeting,
unless the shareholder objects at the beginning of the meeting to the
transaction of business because the meeting is not lawfully called or convened,
or objects before a vote on an item of business because the item may not
lawfully be considered at that meeting and does not participate in the
consideration of the item at that meeting.
SECTION 8. QUORUM AND ADJOURNMENT. The holders of a majority of the voting
power of the shares entitled to vote at a meeting, present in person or by proxy
at the meeting, will constitute a quorum at all meetings of the shareholders for
the transaction of business except as otherwise provided by statute or by the
Articles of Incorporation. If, however, such quorum will not be present or
represented at any meeting of the shareholders, the shareholders entitled to
vote thereat, present in person or represented by proxy, will have the power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum will be present or represented. At such adjourned
meeting at which a quorum will be present or represented any business may be
transacted which might have been transacted at the meeting a originally noticed.
The shareholders present at a duly called or held meeting at which a quorum is
present may continue to transact business until adjournment, even though the
withdrawal of a number of shareholders originally present leaves less than the
proportion or number otherwise required for a quorum.
SECTION 9. VOTING RIGHTS. A shareholder may cast his or her vote in person or
by proxy. When a quorum is present at the time a meeting is convened, the
affirmative vote of the holders of a majority of the shares entitled to vote on
any question present in person or by proxy will decide such question unless the
question is one upon which, by express provision of the applicable statute or
the Articles of Incorporation, a different vote is required, in which case such
express provision will govern and control the decision of such question.
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SECTION 10. PROXIES. A shareholder may cast or authorize the casting of a vote
by filing a written appointment of a proxy with an officer of the Company at or
before the meeting at which the appointment is to be effective. The shareholder
may sign or authorize the written appointment by telegram, cablegram or other
means of electronic transmission setting forth or submitted with information
sufficient to determine that the shareholder authorized such transmission. Any
copy, facsimile, telecommunication or other reproduction of the original of
either the writing or transmission may be used in lieu of the original, provided
that it is a complete and legible reproduction of the entire original. No proxy
will be valid after 11 months from its date, unless the proxy expressly provides
for a longer period.
SECTION 11. MANNER OF VOTING. Each shareholder will at every meeting of the
shareholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such shareholder and, except where the
transfer books of the Company have been closed or a date has been fixed as a
record date for the determination of its shareholders entitled to vote, no share
of stock that has been transferred on the books of the Company within 20 days
next preceding any election of directors will be voted in such election of
directors.
SECTION 12. RECORD DATE. The Board of Directors may fix a date, not exceeding
60 days preceding the date of any meeting of shareholders, as a record date for
the determination of the shareholders entitled to notice of any to vote at such
meeting, and in such case only shareholders of record on the date so fixed, or
their legal representatives, will be entitled to notice of and to vote at such
meeting, notwithstanding any transfer of any shares on the books of the Company
after any record date so fixed. The Board of Directors may close the books of
the company against transfers of shares during the whole or any part of such
period.
SECTION 13. ORGANIZATION OF MEETINGS. The Chief Executive Officer will preside
at all meetings of the shareholders, in the absence of the Chief Executive
Officer or if the office of the Chief Executive Officer is vacant, the Treasurer
will preside at meetings of the shareholders. The Secretary will act as
secretary of lal meetings of the shareholders, or in his or her absence any
person appointed by the presiding officer will act as secretary.
SECTION 14. ELECTRONIC CONFERENCES AND PARTICIPATION BY ELECTRONIC MEANS. A
conference among shareholders conducted by any means of communication through
which the shareholders may simultaneously hear each other during the conference
will constitute a regular or special meeting of shareholders, provided the
notice of the conference is given to every holder of shares entitled to vote
pursuant to sections 3 or 5 of this Article II. A shareholder may participate in
a regular or special meeting of shareholders by any means of communication
through which the shareholder, other shareholders so participating, and all
shareholders physically present at the meeting may simultaneously hear each
other during the meeting. Such participation in a meeting will constitute
presence at the meeting in person or by proxy.
SECTION 15. ACTION WITHOUT A MEETING. Any action required or permitted to be
taken at a shareholders' meeting may be taken without a meeting if authorized by
a writing or writings signed by all of the holders of shares who would be
entitled to vote on that action. Such action will be effective on the date on
which the last signature is placed on such writing or writings, unless a
different effective date is provided in the written action. If any action so
taken requires a
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certificate to be filed in the office of the Secretary of State, the
officer signing such certificate will state therein that the action was
effected in the manner aforesaid.
ARTICLE III.
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the Company will be
managed by or under its Board of Directors which may exercise all such powers of
the Company and do all such lawful acts and things as are not be statute or by
the Articles of Incorporation or by these Bylaws required to be exercised or
done by the shareholders.
SECTION 2. NUMBER AND TERM OF OFFICE. The number of directors which will
constitute the whole board will be at least one, or such other number as may be
determined by the Board of Directors or by the shareholders at a regular or
special meeting. Except as otherwise permitted by statute, the directors will be
elected at each regular meeting of the Company's shareholders (or at any special
meeting of the shareholders called for that purpose) by a majority of the voting
power of the shares represented and voting, and each director will be elected to
serve until the next regular meeting of the shareholders and thereafter until a
successor is duly elected and qualified, unless a prior vacancy will occur by
reason of death, resignation, or removal for office. Directors will be natural
persons, but need not be shareholders.
SECTION 3. RESIGNATION AND REMOVAL. Any director may resign at any time by
giving written notice to the Company. Such resignation will take effect at the
date of the receipt of such notice, or at any later time specified therein, and,
unless otherwise specified therein, the acceptance of such resignation will not
be necessary to make it effective. Any director may be removed at any time, with
or without cause, by the affirmative vote of the holders of a majority of the
voting shares entitled to elect such director.
SECTION 4. VACANCIES. If the office of any director becomes vacant by reason of
death, resignation, removal, disqualification, or otherwise, the directors then
in office, although less than a quorum, by a majority vote, may choose a
successor who will hold office for the unexpired term in respect of which such
vacancy occurred. With respect to the initial election of a director to fill a
newly created directorship resulting from an increase in the number of directors
by action of the Board of directors in the manner permitted by statute, such
vacancy will be filled by the affirmative vote of a majority of the directors
serving at the time of the increase.
SECTION 5. MEETINGS OF DIRECTORS. The Board of Directors of the Company may
hold meetings, from time to time, either within or without the State of
Minnesota, at such place as a majority of the members of the Board of Directors
may from time to time appoint. If the Board of Directors fails to select a place
for the meeting, the meeting will be held at the principal executive office of
the Company.
SECTION 6. CALLING MEETINGS. Meetings of the Board of Directors may be called
by (i) the Chief Executive Officer on 24 hours' notice or (ii) any director on
10 days' notice, to each director, either personally, by telephone or by mail or
telegram. Every such notice will state the date, time
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and place of the meeting. Notice of a meeting called by a person other than
the Chief Executive Officer will state the purpose of the meeting.
SECTION 7. PARTICIPATION BY ELECTRONIC COMMUNICATIONS. Directors of the Company
may participate in a meeting of the Board of Directors by means of conference
telephone or by similar means of communication by which all persons
participating in the meeting can simultaneously hear each other. A director so
participating will be deemed present in person at the meeting.
SECTION 8. WAIVER OF NOTICE. A director may waive notice of a meeting of the
Board of Directors. A waiver of notice by a director entitled to notice is
effective whether given before, at, or after the meeting, and whether given in
writing, orally, or by attendance. Attendance by a director at a meeting is a
waiver of notice of that meeting, except where the director objects at the
beginning of the meeting to the transaction of business because the meeting was
not lawfully called or convened and does not participate thereafter in the
meeting.
SECTION 9. ABSENT DIRECTORS. A director may give advance written consent or
opposition to a proposal to be acted on at a meeting of the Board of Directors
by actual delivery prior to the meeting of such advance written consent or
opposition to the Chief Executive Officer or a director who is present at the
meeting. If the director is not present at the meeting, advance written consent
or opposition to a proposal will not constitute presence for purposes of
determining the existence of a quorum, but consent or opposition will be counted
as a vote in favor of or against the proposal and will be entered in the minutes
or other record of action at the meeting, if the proposal acted on at the
meeting is substantially the same or has substantially the same effect as the
proposal to which the director has consented or objected.
SECTION 10. QUORUM. At all meetings of the Board of Directors a majority of the
directors will constitute a quorum for the transaction of business, and the act
of a majority of the directors present at any meeting at which there is a quorum
will be the act of the Board of Directors, except as may be otherwise
specifically provided by applicable statute or by the Articles of Incorporation.
If a quorum will not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum is present. If a
quorum is present at the call of a meeting, the directors may continue to
transact business until adjournment notwithstanding the withdrawal of enough
directors to leave less than a quorum.
SECTION 11. ORGANIZATION OF MEETINGS. The Chief Executive Officer will preside
at all meetings of the Board of Directors, and in his or her absence the
Treasurer will act a presiding officer. The Secretary will act as secretary of
all meetings of the Board of Directors, and in his or her absence any person
appointed by the presiding officer will act as secretary.
SECTION 12. COMMITTEES. The Board of Directors, by a resolution approved by the
affirmative vote of a majority of the directors then holding office, may
establish one or more committees of one or more persons having the authority of
the Board of Directors in the management of business of the Company to the
extent provided in such resolution. Such committees, however, will at all times
be subject to the direction and control of the Board of Directors. Committee
members need not be directors and will be appointed by the affirmative vote of a
majority of the directors present. A majority of the members of any committee
will constitute a quorum for the
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transaction of business at a meeting of any such committee. In other matters
of procedure the provisions of these Bylaws will apply to committees and the
members thereof to the same extent they apply to the Board of Directors and
directors, including, without limitation, the provisions with respect to
meetings and notice thereof, absent members, written actions and valid acts.
Each committee will keep regular minutes of its proceedings and report the
same to the Board of Directors.
SECTION 13. ACTION WITHOUT MEETING. Unless otherwise restricted by the Articles
of Incorporation or these Bylaws, any action required or permitted to be taken
at any meeting of the Board of Directors may be taken without a meeting, if a
written consent thereto is signed by all members of the Board of Directors and
such written consent is filed with the minutes of proceedings of the Board of
Directors. If the proposed action need not be approved by the shareholders and
the Articles of Incorporation so provide, action may be taken by written consent
signed by the number of directors that would be required to take the same action
at a meeting of the Board of Directors at which all directors were present. Such
action will be effective on the date on which the last signature is placed on
such writing or writings, or such other effective date as is set forth therein.
SECTION 14. COMPENSATION OF DIRECTORS. By resolution of the Board of Directors,
each director may be paid his or her expenses, if any, of attendance at each
meeting of the Board of Directors, and may be paid a stated amount as a director
or a fixed sum for attendance at each meeting of the Board of Directors, or
both. No such payment will preclude a director from serving the Company in any
other capacity and receiving compensation therefor.
ARTICLE IV.
OFFICERS
SECTION 1. NUMBER AND QUALIFICATION. The officers of the Company will be chosen
by the Board of Directors and include a Chief Executive Officer, a Chief
Financial Officer and a Secretary. The Board of Directors may elect or appoint
such other officers or agents as it deems necessary for the operation and
management of the Company, with such powers, rights, duties and responsibilities
as may be determined by the Board of Directors, including, without limitation,
one or more Vice Presidents, one or more Assistant Secretaries and Assistant
Chief Financial Officers, each of whom will have the powers, rights duties and
responsibilities set for the in these Bylaws unless otherwise determined by the
Board. Any of the offices or functions of those offices may be held or exercised
by the same person.
SECTION 2. ELECTION AND TERM OF OFFICE. The initial officers of the Company
will be elected by the Board of Directors at its first duly held meeting and all
officers will hold office until their successors have been duly elected, unless
prior thereto such officer will have resigned or been removed from office as
hereinafter provided.
SECTION 3. RESIGNATION, REMOVAL AND VACANCIES. An officer may resign at any
time by giving written notice to the Company. The resignation is effective
without acceptance when the notice is given to the Company, unless a later
effective date is specified in the notice. Any officer or agent elected or
appointed by the Board of Directors will hold office at the pleasure of the
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Board of Directors and may be removed, with or without cause, at any time by the
affirmative vote of a majority of the Board of Directors present at a duly held
Board meeting. A vacancy in an office may, or in the case of a vacancy in the
office of the Chief Executive Officer or Chief Financial Officer will, be filled
for the unexpired portion of the term by action of the Board of Directors.
SECTION 4. SALARIES. The salaries of all officers of the Company will be fixed
by the Board of Directors or by the Chief Executive Officer if authorized by the
Board of Directors.
SECTION 5. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer will be the
chief executive officer of the Company. Unless provided otherwise by a
resolution adopted by the Board of Directors, the Chief Executive Officer will
have general active management of the business of the Company, will preside at
meetings of the shareholders and Board of Directors, will see that all orders
and resolutions of the Board of Directors are carried into effect, will sign and
deliver in the name of the Company any deeds, mortgages, bonds, contracts, or
other instruments pertaining to the business of the Company, except in cases in
which the authority to sign and deliver is required by law to be exercised by
another person or is expressly delegated by the Articles of Incorporation, these
Bylaws, or the Board of Directors to some other officer or agent of the Company,
will maintain records of and, whenever necessary, certify proceedings of the
Board of Directors and shareholders, and will perform such other duties as may
from time to time be prescribed by the Board of Directors.
SECTION 6. CHIEF FINANCIAL OFFICER. The Chief Financial Officer will be the
chief financial officer of the Company. The Chief Financial Officer will keep
accurate financial records for the Company, will deposit all moneys, drafts, and
checks in the name of and to the credit of the Company in such banks and
depositories as the Board of Directors will designate from time to time, will
endorse for deposit all notes, checks, and drafts received by the Company as
ordered by the Board of Directors, making proper vouchers therefor, will
disburse corporate funds and issue checks and drafts in the name of the Company
as ordered by the Board of Directors, will render to the Chief Executive Officer
and the Board of Directors, whenever requested, an account of all such officer's
transactions as Chief Financial Officer and of the financial condition of the
Company, and will perform such other duties as may be prescribed by the Board of
Directors from time to time. If required by the Board of Directors, the Chief
Financial Officer will give the Company a bond in such sum and with such surety
or sureties as will be satisfactory to the Board of Directors for the faithful
performance of the duties of his or her office and for the restoration to the
Company, in case of his or her death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his or her possession or under his or her control belonging to the
Company.
SECTION 7. SECRETARY. The Secretary will attend all meetings of the Board of
Directors and all meetings of the shareholders and record all the proceedings of
the meetings of the Company and of the Board of Directors in a book to be kept
for that purpose. He or she will give, or cause to be given, notice of all
meetings of the shareholders and special meetings of the Board of Directors, and
will perform such other duties as may be prescribed by the Board of Directors or
the Chief Executive Officer, under whose supervision he or she will be.
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SECTION 8. VICE PRESIDENTS. The Vice President, if any, or if there will be
more than one, the Vice Presidents in the order determined by the Board of
Directors, will, in the absence or disability of the Chief Executive Officer,
perform the duties and exercise the powers of the Chief Executive Officer and
will perform such other duties and have such other powers as the Board of
Directors or the Chief Executive Officer may from time to time prescribe.
SECTION 9. ASSISTANT SECRETARIES. The Assistant Secretary or, if there be more
than one, the Assistant Secretaries, in the order determined by the Board of
Directors, will, in the absence or disability of the Secretary, perform the
duties and exercise the powers of the Secretary and will perform such other
duties and have such other powers as the Board of Directors or the Chief
Executive Officer may from time to time prescribe.
SECTION 10. AUTHORITY AND DUTIES. In addition to the foregoing authority and
duties, all officers of the Company will respectively have such authority and
perform such duties in the management of the business of the Company as may be
designated from time to time by the Board of Directors.
ARTICLE V.
CERTIFICATES OF STOCK
SECTION 1. CERTIFICATES OF STOCK. Every holder of stock in the Company will be
entitled to have a certificate signed by, or in the name of the Company by the
Chief Executive Officer or the Secretary or an Assistant Secretary of the
Company, if there be one, certifying the number of shares owned by him or her in
the Company. The certificates of stock of each class will be numbered in the
order of their issue.
SECTION 2. FACSIMILE SIGNATURES. Where a 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 Chief
Executive Officer, Secretary or Assistant Secretary may be facsimile. In case
any officer or officers who have signed, or whose facsimile signature or
signatures have been used on any such certificate or certificates will cease to
be such officer or officers of the Company before such certificate or
certificates 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 have been used thereon
had not ceased to be such officer or officers of the Company.
SECTION 3. LOST OR DESTROYED CERTIFICATES. The Board of Directors may direct a
new certificate or certificates to be issued in place of any certificate or
certificates issued by the Company alleged to have been lost or destroyed, upon
the making of an affidavit of that fact by the person claiming the certificate
of stock to be lost 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
or destroyed certificate or certificates, or his or her legal representative, to
advertise the same in such manner as it will require and/or to give the Company
a bond in such sum as it may direct as indemnity against any
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claim that may be made against the Company with respect to the certificate
alleged to have been lost or destroyed.
SECTION 4. TRANSFERS OF STOCK. Upon surrender to the Company or the transfer
agent of the Company of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it will be
the duty of the Company to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
SECTION 5. REGISTERED SHAREHOLDERS. The Company will 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 will be entitled to hold
liable for calls and assessments a person so registered on its books as the
owner of shares, and will 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 will have express or other notice thereof, except as otherwise
provided by applicable statute.
ARTICLE VI.
INDEMNIFICATION
SECTION 1. INDEMNIFICATION. The Company shall indemnify its officers and
directors to the fullest extent permissible under the provisions of Chapter 302A
of the Minnesota Statutes, as amended from time to time, or as required or
permitted by other provisions of law. Any repeal or modification of this Article
[VI] will be prospective only and will not adversely affect any right to
indemnification of a director or officer of the Company existing at the time of
such repeal or modification.
SECTION 2. INSURANCE. The Company may purchase and maintain insurance on behalf
of any person in such person's official capacity against any liability asserted
against and incurred by such person in or arising from that capacity, whether or
not the Company would otherwise be required to indemnify the person against the
liability.
ARTICLE VII.
GENERAL PROVISIONS
SECTION 1. FISCAL YEAR. The fiscal year of the Company will be fixed by
resolution of the Board of Directors.
SECTION 2. DIVIDENDS. Subject to the provisions of the applicable statute and
the Articles of Incorporation, dividends upon the capital stock of the Company
may be declared by the Board of Directors at any regular or special meeting, and
may be paid in cash, in property, or in shares of the capital stock.
SECTION 3. RESERVES. Before payment of any dividend, there may be set aside out
of any funds of the Company 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 to meet contingencies, or for
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equalizing dividends, or forrepairing or maintaining any property of the
Company, or for such other purposes as the directors will think conducive to
the interest of the Company, and the directors may modify or abolish any such
reserve in the manner in which it was created.
SECTION 4. SEAL. The Company will not have a corporate seal.
SECTION 5. CHECKS. All checks or demands for money and notes of the Company
will be signed by such officer or officers or such other person or persons as
the Board of Directors may from time to time designate.
SECTION 6. AMENDMENTS. The Board of Directors will have the power to adopt,
amend or repeal the Bylaws of the Company, subject to the power of the
shareholders to change or repeal the same, provided, however, that the Board
will not adopt, amend or repeal any Bylaw fixing a quorum for meetings of
shareholders, prescribing procedures for removing directors or filling vacancies
in the Board, or fixing the number of directors or their classifications,
qualifications or terms of office, but may adopt or amend a Bylaw that increases
the number of directors.
June 9, 1999
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