BYLAWS
OF
MERRILL DANIELS, 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 for repairing 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.
March 11, 1999
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