ARTICLES OF INCORPORATION
OF
MERRILL/NEW YORK COMPANY
---------------------------------------
The undersigned incorporator, being a natural person, eighteen years of age or
older, in order to form a corporate entity under Minnesota Statutes, Chapter
302A, hereby adopts the following Articles of Incorporation:
ARTICLE I.
The name of this Corporation is MERRILL/NEW YORK COMPANY.
ARTICLE II.
The registered office of the Corporation in Minnesota is 1731 University Avenue,
St. Paul, Minnesota 55104.
ARTICLE III.
The aggregate number of shares of capital stock which the Corporation shall have
authority to issue is Twenty Thousand (20,000) shares of common stock, par value
$.01 per share.
The shareholders of the corporation shall not have any preemptive rights in any
future issuance of stock by the Corporation.
At each election for Directors, every holder of common stock shall have the
right to vote in person or by proxy, the number of shares registered in his name
for as many persons as there are Directors to be elected and for whose election
he has the right to vote, or to cumulate his votes by casting for one candidate
the number of votes equal to the number of Directors to be elected
multiplied by the number of votes represented by his shares, or by distributing
all of his votes on the same principle among any number of such candidates.
ARTICLE IV.
The affirmative vote of the holders of two-thirds (2/3) in number of the issued
and outstanding shares of common stock shall be necessary to amend these
Articles of Incorporation.
ARTICLE V.
The name and mailing address of the incorporator and first director of this
Corporation is as follows:
NAME ADDRESS
---- -------
Douglas L. Hemer 1700 First Bank Building
St. Paul, Minnesota 55101
ARTICLE VI.
The names and mailing addresses of the first directors of this Corporation are
as follows:
NAME ADDRESS
---- -------
John Castro 1731 University Avenue
St. Paul, Minnesota 55104
Robert F. Nienhouse 1731 University Avenue
St. Paul, Minnesota 55104
Richard Atterbury 1731 University Avenue
St. Paul, Minnesota 55104
ARTICLE VII.
The purposes of the Corporation are general business purposes.
2
ARTICLE VIII.
The Corporation shall have perpetual duration.
ARTICLE IX.
The Corporation shall possess all powers necessary to conduct any business in
which it is authorized to engage, including, but not limited to, all those
powers expressly conferred upon business corporations by Chapter 302A of the
Minnesota Statutes, as it may from time to time be amended, together with those
powers implied therefrom.
ARTICLE X.
The affirmative vote of the holders of a majority of the voting power of the
shares represented and voting at a duly held meeting is required for an action
of the shareholders, except that no merger, consolidation, dissolution or sale,
lease or exchange of all or substantially all of the Corporation's property and
assets shall be made unless authorized by the affirmative vote of two-thirds
(2/3) of the holders of the issued and outstanding shares of stock.
ARTICLE XI.
Shares of the Corporation acquired by the Corporation shall become authorized
but unissued shares and may be reissued as provided in these Articles.
ARTICLE XII.
(A) The Board of Directors may from time to time, by vote of a majority of its
members present at a duly held meeting, adopt, amend or repeal all or any of the
Bylaws of the corporation as permitted by Chapter 302A of the Minnesota
Statutes, as it may from time to time be amended, subject to the power of the
shareholders to adopt, amend or repeal such Bylaws, except
3
that any amendment to the number of directors providing for less than five (5)
directors may be made only with the affirmative vote of the holders of
two-thirds (2/3) in number of the issued and outstanding shares of stock.
(B) The Board of Directors is authorized to accept and reject subscriptions for
and to dispose of shares of authorized stock of the Corporation, including the
granting of stock options, warrants and other rights to purchase stock, without
action by the shareholders and upon such terms and conditions as may be deemed
advisable by the Board of Directors in the exercise of its discretion, except as
otherwise limited by Chapter 302A of the Minnesota Statutes, as it may from time
to time be amended.
(C) The Board of Directors is authorized to issue, sell or otherwise dispose of
bonds, debentures, certificates of indebtedness and other securities, including
those convertible into stock, without action by the shareholders and for such
consideration and upon such terms and conditions as may be deemed advisable by
the Board of Directors in the exercise of its discretion, except as otherwise
limited by Chapter 302A of the Minnesota Statutes, as it may from time to time
be amended.
(D) The Board of Directors is authorized to adopt, by an affirmative vote of a
majority of its members present at a duly held meeting, a resolution or
resolutions providing for the establishment of a class or series of authorized
stock of the corporation or bonds, debentures, certificates of indebtedness or
other securities, setting forth the designation of and number of
4
shares constituting the class or series and fixing the relative rights and
preferences of the class or series.
ARTICLE XIII.
Any action required or permitted to be taken at a meeting of the Board may be
taken by written consent signed by all the directors; provided that, if the
action is one which does not require shareholder approval, such 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 at which all directors were
present.
ARTICLE XIV.
Each director, officer, employee or agent, past and present, of the corporation,
and each person who serves or may have served at the request of the Corporation
as a director, officer, employee or agent of another Corporation or an employee
benefit plan, and their respective heirs, administrators and executors, shall be
indemnified by the Corporation in accordance with, and to the fullest extent
permissible under, the provisions of Chapter 302A of the Minnesota Statutes, as
it may from time to time be amended.
IN WITNESS WHEREOF, The above-named incorporator has executed these Articles of
Incorporation this 30th day of December, 1983.
INCORPORATOR:
/s/ Douglas L. Hemer
-----------------------------
Douglas L. Hemer
5
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
The foregoing instrument was acknowledged before me this 30th of December, 1983,
by Douglas L. Hemer.
/s/ Norma L. Prokosch
---------------------------
Notary Public
6
AMENDMENT OF ARTICLES
OF
MERRILL/NEW YORK COMPANY
------------------------
CORPORATE NAME: Merrill/New York Company
DATE OF ADOPTION OF AMENDMENTS: March 16, 1984
AMENDMENTS APPROVED BY CORPORATE: Shareholders
Pursuant to the provisions of Minnesota Statutes, Sections 302A.l33 and
302A.l35, the following amendments of Articles of Incorporation were adopted:
1. Articles IV, X and XII(A) are amended to read as follows:
ARTICLE IV.
The affirmative vote of the holders of ninety percent (90%) of the
issued and outstanding shares of common stock shall be necessary to
amend these Articles of Incorporation.
ARTICLE X.
The affirmative vote of the holders of ninety percent (90%) of the
shares represented and voting at a duly held meeting is required for an
action of the shareholders.
ARTICLE XII.
(A) The Board of Directors may from time to time, by vote of a majority
of its members present at a duly held meeting, adopt, amend or repeal
all or any of the Bylaws of the corporation as permitted by Chapter
302A of the Minnesota Statutes, as it may from time to time be amended,
subject to the power of the shareholders to adopt, amend or repeal such
Bylaws, except that any amendment to the number of directors providing
for more than seven (7) directors may be made only with the affirmative
vote of the holders of ninety percent (90%) of the issued and
outstanding shares of stock.
2. The following is added to Article IX:
The Corporation shall lack the power to enter into any contract or
agreement which is inconsistent with or in contravention of Section 5.1
of a certain Shareholder Participation Agreement dated as of March 16,
1984, by and among K. F. Merrill Company, Latham Process Corp., Virgil
L. Jackson and the Corporation as the same may from time to time be
amended hereafter.
Signed: /s/ Richard G. Lareau
----------------------
Richard G. Lareau
Position:
----------------------
Secretary
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me on this 12th day of April,
1984.
/s/ Mary H. Waryan
----------------------
Notary Public
State of Minnesota
Secretary of State
Articles of Amendment
Corporate Name: Merrill/New York Company
Date of Adoption of Amendment: August 17, 1987
Effective Date, if any, of Amendment:
Amendment Approved by: Shareholders
Pursuant to the provisions of Minnesota Statutes, Section 302A.135, the
following amendment of articles regulating the above corporation were adopted:
ARTICLE XV
No director of the Corporation, including, a person deemed to be a
director under applicable law, shall be personally liable to the
Corporation or its share-holders for monetary damages for breach of
fiduciary duty by such director as a director, except to the extent
provided by applicable law for: (i) liability based on a breach of the
duty of loyalty to the Corporation or the shareholders; (ii) liability
for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law; (iii) liability based on the
payment of an improper dividend or an improper acquisition of the
Corporation's shares under Section 559 of the Minnesota Business
Corporation Act (Minnesota Statutes, Chap. 302A) or on violations of
state securities laws under Section 80A.23 of the Minnesota Statutes;
(iv) liability for any transaction from which the director derived an
improper personal benefit; or (v) liability for any act or omission
occurring prior to the date that this Article XV becomes effective. If
Chapter 302A of the Minnesota Business Corporation Act is amended
hereafter to authorize the further elimination or limitation of the
liability of directors, then the liability of a director of the
Corporation, in addition to the limitation on personal liability
provided herein, shall be eliminated or limited to the fullest extent
permitted by any such amendment. Any repeal or modification of this
Article by the shareholders of the Corporation shall not adversely
affect any right or protection of a director of the Corporation
existing at or prior to the time of such repeal or modification.
I swear that the foregoing is true and accurate and that I have authority to
sign this document on behalf of the Corporation.
/s/ John B. McCain
------------------------------
John B. McCain
Secretary
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
The foregoing instrument was acknowledged before me on this 1st day of June,
1988.
/s/ Steven J. Machov
------------------------------
Steven J. Machov
Notary Public
OFFICE OF THE SECRETARY OF STATE
MODIFICATION OF STATUTORY REQUIREMENTS
OR AMENDMENTS OF ARTICLES OF INCORPORATION
- READ INSTRUCTIONS AT BOTTOM OF PAGE BEFORE COMPLETING THIS FORM
CORPORATE NAME
MERRILL/NEW YORK COMPANY
DATE OF ADOPTION OF AMENDMENTS MODIFICATION EFFECTIVE DATES, IF ANY, OF
AMENDMENTS MODIFICATIONS*
Amendments/Modifications were approved by the: ____ Shareholders ____ Directors
___ Incorporators
(Note: See Minnesota Statutes section 302A.131 for the procedure to be used in
approving amendments.)
The following amendments of articles or modifications to the statutory
requirements regulating the above corporation were adopted: (Insert full text of
newly amended or modified article(s) indicating which article(s) is (are) being
amended or added. If the full text of the amendment will not fit in the space
provided, please do not use this form. Instead, retype the amendment on a
separate sheet or sheets using this format.)
ARTICLE I "The following change was adopted pursuant to Minnesota
Statute 302A."
Merrill/New York Company
One Merrill Circle, Energy Park
St. Paul, MN 55108
* Note: Effective date may be any date within 30 days after the filing date. If
no date is specified, the effective date is the date filed.
I swear that the foregoing is true and accurate and that I have the authority to
sign this document on behalf of the corporation.
STATE OF MINNESOTA ) Signed: /s/
------------------------
)
COUNTY OF RAMSEY ) ss. Position: Secretary
----------------------
The foregoing instrument was acknowledged before me this 18th day of November,
1988.
Notarial
Seal /s/ Linnea J. Nash
------------------------------------
(Notary Public)
- - INSTRUCTIONS FOR USE BY SECRETARY OF STATE D.A.R.
1. TYPE OR PRINT USING DARK INK.
2. INCLUDE FILING FEE.
3. MAKE FILING FEE PAYABLE TO THE
SECRETARY OF STATE.
4. MAIL OR BRING COMPLETE FORM TO:
SECRETARY OF STATE
CORPORATION DIVISION
180 STATE OFFICE BUILDING
ST. PAUL, MN 55101
(612) 296-2803
State of Minnesota
Secretary of State
Articles of Amendment
Corporate Name: Merrill/New York Company
Date of Adoption of Amendment: August 17, 1987
Effective Date, if any, of Amendment:
Amendment Approved by: Shareholders
Pursuant to the provisions of Minnesota Statutes, Section 302A.135, the
following amendment of articles regulating the above corporation were adopted:
ARTICLE XV
No director of the Corporation, including a person deemed to be a
director under applicable law, shall be personally liable to the
Corporation or its shareholders for monetary damages for breach of
fiduciary duty by such director as a director, except to the extent
provided by applicable law for: (i) liability based on a breach of the
duty of loyalty to the Corporation or the shareholders; (ii) liability
for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law; (iii) liability based on the
payment of an improper dividend or an improper acquisition of the
Corporation's shares under Section 559 of the Minnesota Business
Corporation Act (Minnesota Statutes, Chap.302A) or on violations of
state securities laws under Section 80A.23 of the Minnesota Statutes;
(v) liability for any act or omission occurring prior to the date that
this Article XV becomes effective. If Chapter 302A of the Minnesota
Business Corporation Act is amended hereafter to authorize the further
elimination or limitation of the liability of directors, then the
liability of a director of the Corporation, in addition to the
limitation on personal liability provided herein, shall be eliminated
or limited to the fullest extent permitted by any such amendment. Any
repeal or modification of this Article by the shareholders of the
Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at or prior to the time of such
repeal or modification.
I swear that the foregoing is true and accurate and that I have authority to
sign this document on behalf of the Corporation
/s/ John Castro
-------------------
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
The foregoing instrument was acknowledged before me on this 29th day of March,
1991.
/s/ Steven J. Machov
------------------------------
Steven J. Machov
Notary Public