[MINNESOTA FORM SC-00009-03 NOT RECREATED HERE]
ARTICLES OF INCORPORATION
OF
TERTM, INC.
In order to form a corporation as codified in Chapter 302A of the
Minnesota Statutes, the following Articles of Incorporation are hereby
adopted:
ARTICLE I
NAME
The name of this corporation shall be "TERTM, INC.".
ARTICLE II
REGISTERED OFFICE
The registered office of this corporation in the State of Minnesota
shall be 1252 Bundy Boulevard, Winona, Minnesota 55987.
ARTICLE III
SHARES OF STOCK
The total authorized shares of this corporation shall be Ten Million of
One Cent par value which shall be known as common stock. There shall be no
pre-emptive rights or cumulative voting rights.
ARTICLE IV
INCORPORATORS
The name and address of each incorporator, who is a natural person of
full age, is as follows:
NAME ADDRESS
---- -------
Maximilan Ware Route Four, Box 149
Winona, Minnesota 55987
IN WITNESS WHEREOF, the above-named incorporator has executed these
Articles of Incorporation as of this 28th day of December, 1984.
/s/ Maximilan Ware
----------------------------
Maximilan Ware
STATE OF MINNESOTA )
) ss.
COUNTY OF WINONA )
BE IT KNOWN, that on this 28th day of December, 1984, before me a Notary
Public, personally appeared Maximilan Ware to me known to be the person named
and described as incorporator and who executed the foregoing Articles of
Incorporation, having been first duly sworn and under oath, did acknowledge
and say that he executed the foregoing Articles of Incorporation as his free
act and deed for the uses and purposes therein expressed.
Illegible
------------------------------------
Notary Public, Winona, Minnesota
My Commission Expires:
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State of Minnesota
Office of the Secretary of State
MODIFICATION OF STATUTORY REQUIREMENTS
OR AMENDMENT OF ARTICLES
Corporate Name: TERTM, INC.
Date of Adoption of Amendments/Modifications: May 15, 1987
Effective Date, if any, of Amendments/Modifications:
Amendments/Modifications Approved by Corporate: Shareholders
Pursuant to the provisions of the Minnesota Statutes, Sections 302A.133 and
302A.135, the following amendments of articles or modifications to the
statutory requirements regulating the above corporation were adopted:
The Articles of Incorporation of the Corporation are amended by adding a
new Article V, as follows:
A director of the corporation, including a person deemed to be a
director under applicable law, shall not be personally liable to the
corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director, except to the extent provided by
applicable law for (i) liability based on a breach of the director's
duty of loyalty to the corporation or its shareholders, (ii) liability
for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law, (iii) liability under
Sections 302A.559 or 80A.23 of 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 when this Article V becomes effective. If the Minnesota
Business Corporation Act hereafter is amended 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 and elimination on personal liability provided herein,
shall be eliminated or limited to the fullest extent permitted by the
Minnesota Business Corporation Act, as so amended. Any amendment or
repeal of this Article V by the shareholders of the corporation shall
not adversely affect any right or protection of a director of the
corporation existing at the time of such repeal or amendment.
I swear that the foregoing is true and accurate and that I have the authority
to sign this document on behalf of the corporation.
Signed: /s/ Maximilan Ware
----------------------------------
Position: President
--------------------------------
STATE OF MINNESOTA )
) SS.
COUNTY OF WINONA )
The foregoing instrument was acknowledged before me on this _____ day of
October, 1987.
Illegible
-------------------------------
Notary Public
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[MINNESOTA FORM SC-00014-06 NOT RECREATED HERE]
[MINNESOTA FORM SC-00175-03 (9.88) NOT RECREATED HERE]
AMENDMENT OF THE ARTICLES OF INCORPORATION
OF
TERTM TECHNOLOGY CORPORATION
The following Amendments of the Articles of the above corporation were adopted:
"ARTICLE I
NAME
The name of the Corporation is DynEco Corporation.
ARTICLE II
REGISTERED OFFICE AND AGENT
The registered office of this Corporation is 5151 industrial Boulevard,
Suite 105, Minneapolis, Minnesota 55439, and the name of the registered
agent at that address is Arnold J. Ryden. The registered office may be
changed from time to time as provided by the Corporation's bylaws.
ARTICLE III
CAPITAL
CLASSIFICATION OF CAPITAL STOCK. The aggregate number of shares of
Capital Stock which the Corporation has the authority to issue is 12,000,000
shares, which shall consist of 10,000,000 shares of Common Stock with par
value of $.01 (the "Common Stock"), and 2,000,000 shares of Preferred Stock
with par value of $.01 per share (the "Preferred Stock").
The Corporation does not have the authority to issue nonvoting shares of
Common Stock or Preferred Stock. If the Board of Directors issues one or
more classes of voting capital stock, the Corporation shall provide for an
appropriate distribution of voting power among each class of capital stock,
including, in the case of any class of capital stock having a preference over
another class with respect to the payment of dividends, adequate provisions
for the election of directors representing such class in the event of a
default in the payment of such dividends.
DESCRIPTION OF CAPITAL. The following is a description of each of the
classes of capital stock which the Corporation has authority to issue with
designations, preferences, voting powers and participating, optional or other
special rights and the qualifications, limitations or restrictions thereof:
1. COMMON STOCK. Each share of Common Stock shall be equal to every
other share of Common Stock and the holders hereof shall be entitled to one
vote to each share of stock on all questions presented to the shareholders.
2. PREFERRED STOCK. Authority is hereby expressly vested in the Board
of Directors of the Corporation, subject to the provisions of this Article
III and to the limitations described by law, to authorize the issue from time
to time of one or more series of Preferred Stock and with respect to each
series to fix by resolution or resolutions adopted by the Board of Directors
providing for the issue of such series the voting powers, full or limited, if
any, of the shares of such series and the designations, preferences and
relative, participating, optional or other special rights and the
qualifications, limitations or restrictions thereof."
This amendment has been approved pursuant to chapter 302A, Minnesota Statutes.
I certify that I am authorized to execute this amendment and I further
certify that I understand that by signing this amendment, I am subject to the
penalties of perjury as set forth in section 609.48 as if I had signed this
amendment under oath.
Dated: December 27, 1993. /s/ Donald W. Hewitt
-----------------------------------
Donald W. Hewitt, President
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AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
DYNECO CORPORATION
ARTICLE I
NAME
The name of the Corporation is DynEco Corporation.
ARTICLE II
REGISTERED OFFICE
The address of the registered office of the Corporation is Suite 105,
5151 Edina Industrial Boulevard, Minneapolis, MN 55439. Registered Agent:
Arnold J. Ryden.
ARTICLE III
CAPITAL
A. The Corporation is authorized to issue fifty million (50,000,000)
shares of capital stock, having a par value of $0.01 in the case of common
stock, and having a par value as determined by the Board of Directors in the
case of the preferred stock, to be held, sold and paid for at such times and
in such manner as the Board of Directors may from time to time determine in
accordance with the laws of the State of Minnesota.
B. In addition to any and all powers conferred upon the Board of
Directors by the laws of the State of Minnesota, the Board of Directors shall
have the authority to establish by resolution more than one class or series
of shares, either preferred or common, and to fix the relative rights,
restrictions and preferences of any such different classes or series, and the
authority to issue shares of a class or series to another class or series to
effectuate share dividends, splits or conversion of the Corporation's
outstanding shares.
C. The Board of Directors shall also have the authority to issue
rights to convert any of the Corporation's securities into shares of stock of
any class or classes, the authority to issue options to purchase or subscribe
for shares of stock of any class or classes, and the authority to issue share
purchases or subscription warrants or any other evidence of such option
rights which set forth the terms, provisions and conditions thereof,
including the price or prices at which such shares may be subscribed for or
purchased. Such options, warrants and rights may be transferable or
nontransferable and separable or nonseparable from other securities of the
Corporation. The Board
of Directors is authorized to fix the terms, provisions and conditions of
such options, warrants and rights, including conversion basis or bases and
the option price or prices at which shares may be subscribed for or purchased.
ARTICLE IV
SHAREHOLDER RIGHTS
A. NO PREEMPTIVE RIGHTS. No shareholder of the Corporation shall have
preemptive rights.
B. NO CUMULATIVE RIGHTS. No shareholder of the Corporation shall have
any cumulative voting rights.
C. SPECIAL MEETINGS OF SHAREHOLDERS. Special meetings of shareholders
of the Corporation may be called only in the manner provided in the bylaws.
D. ACTION OF SHAREHOLDERS. Any action required or permitted to be
taken by the shareholders of the Corporation must be effected at a duly
called annual or special meeting of such holders and may not be effected by
any consent in writing by such holders other than a written consent at such
meeting. At any regular or special meeting of the shareholders, only such
business shall be conducted as shall have been brought before the meeting (a)
by or at the direction of the Board of Directors or (b) by any shareholder
who complies with the notice procedures set forth in this subparagraph D.
For business to be properly brought before any regular or special meeting by
a shareholder, the shareholder must give timely notice in writing to the
Secretary of the Corporation. To be timely, a shareholder's notice shall be
delivered to or mailed and received at the principal offices of the
Corporation not less than thirty (30) days nor (except for shareholder
proposals subject to Rule 14a-8(a)(3)(i) of the Securities Act of 1934, as
amended) more than fifty (50) days prior to the meeting; provided, however,
that in the event less than thirty (30) days' notice or prior public
disclosure of the date of the meeting is given or made to the shareholders,
notice by the shareholder 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 public disclosure was made. Such
shareholder's notice to the Secretary shall set forth as to each matter the
shareholder proposes to bring before the regular or special meeting (a) a
brief description of the business desired to be brought before the meeting
and the reasons for conducting such business at the meeting; (b) as to the
shareholder giving notice (i) the name and address, as they appear on the
Corporation's books, of such shareholder, and (ii) the class and number of
shares of the Corporation which are beneficially owned by such shareholder;
and (c) any material interest of the shareholder in such business.
Notwithstanding anything in the Corporation's bylaws to the contrary, no
business shall be conducted at any regular or special meeting of the
Corporation except in accordance with the procedures set forth above in this
subparagraph D. The Chairman of the Meeting of the Shareholders shall, if the
facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting in accordance with the procedures
prescribed in this subparagraph D and if he should
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so determine and declare to the meeting, any such business not properly
brought before the meeting shall not be transacted.
E. AMENDMENT, REPEAL, ETC. Notwithstanding the fact that a lesser
percentage may be specified by law, the Articles of Incorporation and bylaws
of the Corporation, the affirmative vote of the holders of seventy-five (75%)
percent of the voting power of the then outstanding shares of capital stock
of the Corporation entitled to vote generally in the election of directors,
voting together as a single class, shall be required to amend or repeal, or
adopt any provision inconsistent with, subparagraphs A through E of this
Article IV.
ARTICLE V
WRITTEN ACTION BY LESS THAN ALL OF THE DIRECTORS
Any action required or permitted to be taken at a Board meeting, other
than action requiring shareholder approval, may be taken by written action of
the Board of Directors if 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 VI
LIMITED LIABILITY OF DIRECTORS
To the fullest extent possible permitted by law, a director shall have
no personal liability to the Corporation or its shareholders for breach of
fiduciary duty as a director. Any amendment to or repeal of this Article VI
shall not adversely affect any right to protection of a director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
ARTICLE VII
BOARD OF DIRECTORS
The business and affairs of the Corporation shall be managed by or under
the direction of the Board of Directors.
A. NUMBER, ELECTION AND TERMS OF DIRECTORS. Except as otherwise fixed
pursuant to the provisions relating to the rights of holders of any class or
series of stock having a preference over the Corporation's common stock as to
dividends or upon liquidation to elect additional directors under specified
circumstances, the number of directors of the Corporation shall be fixed from
time to time by or pursuant to the bylaws but in no event shall be less than
three (3) or more than seven (7) in number. The directors, other than those
who may be elected by the holders of any class or series of stock having a
preference over the common stock as to dividends or upon liquidation, shall
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be classified with respect to the time for which they may severally hold
office, into three classes, as nearly equal in number as possible, as shall
be provided in the manner specified in the bylaws, one class to hold office
initially for a term expiring at the 1999 Annual Meeting of Shareholders,
another class to hold office initially for a term expiring at the 1997 Annual
Meeting of Shareholders, and another class to hold office initially for a
term expiring at the 1995 Annual Meeting of Shareholders, with the members of
each class to hold office until their successors have been duly elected and
qualified. At each Annual Meeting of Shareholders, the successors to the
class of directors whose term expires at that meeting shall be elected to
hold office for a term expiring at the Annual Meeting of Shareholders held in
the year following the year of their election and until their successors have
been duly elected and qualified.
B. SHAREHOLDER NOMINATION OF DIRECTOR CANDIDATES. Only persons who
are nominated in accordance with the procedures set forth in this
subparagraph shall be eligible for election as directors. Advance notice of
nomination for the election of directors, other than by the Board of
Directors or a duly authorized committee thereof or any authorized officer of
the Corporation to whom the Board of Directors shall have delegated such
authority, and information concerning nominees, shall be given in the manner
provided in this subparagraph B. Nominations by shareholders shall be made
pursuant to timely notice in writing to the Secretary of the Corporation. To
be timely, a shareholder's notice shall be delivered to or mailed and
received at the principal offices of the Corporation not less than thirty
(30) days nor more than fifty (50) days prior to the meeting; provided,
however, that in the event less than thirty (30) days' notice or prior public
disclosure of the date of the meeting is given or made to the shareholders,
notice by the shareholder 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 public disclosure was made. Such
shareholder's notice shall set forth (a) as to each person whom the
shareholder proposes to nominate for election or re-election, all information
relating to such person that is required to be disclosed in solicitation 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 such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); and (b) as
to the shareholder giving notice (i) the name and address, as they appear on
the Corporation's books, of such shareholder, and (ii) the class and number
of shares of the Corporation which are beneficially owned by such shareholder.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set
forth above in this subparagraph B. The Chairman of the Meeting of
the Shareholders shall, if the facts warrant, determine and declare to
the meeting that a nomination was not made in accordance with the
procedures prescribed in this subparagraph B and, if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
C. NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Except as otherwise
fixed pursuant to the provisions relating to the rights of holders of any
class or series of stock having a preference over the common stock as to
dividends or upon liquidation to elect additional directors under
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specified circumstances, newly created directorships resulting from any
increase in the authorized number of directors and any vacancies on the Board
of Directors resulting from death, resignation, retirement, disqualification,
removal from office or other cause shall be filled by a majority vote of the
directors then in office, and directors so chosen shall hold office for a
term expiring at the next Annual Meeting of Shareholders at which term of the
class to which they have been elected expires. No decrease in the number of
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
D. REMOVAL. Subject to the rights of holders of any class or series
of stock having a preference over the common stock as to dividends or upon
liquidation to elect additional directors under specified circumstances, any
director or directors may be removed from office at any time, but only for
cause and only by the affirmative vote of (i) the holders of at least
seventy-five (75%) percent of the voting power of the then outstanding shares
of capital stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class, or (ii) the
majority of the Board of Directors. Except as may otherwise be provided by
law, cause for removal shall be construed to exist only if the director whose
removal is proposed has been convicted of a felony by a court of competent
jurisdiction and such conviction is no longer subject to direct appeal or has
been adjudged by a court of competent jurisdiction to be liable for
negligence or misconduct in the performance of his duty to the Corporation in
a matter of substantial importance to the Corporation, and such adjudication
is no longer subject to direct appeal.
E. AMENDMENT, REPEAL, ETC. Notwithstanding the fact that a lesser
percentage may be specified by law, the Articles of Incorporation and bylaws
of the Corporation, the affirmative vote of the holders of seventy-five (75%)
percent of the voting power of the then outstanding shares of capital stock
of the Corporation entitled to vote generally in the election of directors,
voting together as a single class, shall be required to amend or repeal, or
adopt any provision inconsistent with, subparagraphs A through E of this
Article VII.
ARTICLE VIII
SUPERMAJORITY SHAREHOLDER APPROVAL OF BUSINESS COMBINATIONS
A. In addition to any affirmative vote required by law or these
Articles of Incorporation, and except as otherwise expressly provided in
Section B of this Article VIII, a Business Combination (as hereinafter
defined) shall require the affirmative vote of not less than seventy-five
(75%) percent of the votes entitled to be cast by holders of all then
outstanding shares of Voting Stock (as hereinafter defined), voting together
as a single class. Such affirmative vote shall be required notwithstanding
the fact that no vote may be required, or that a lesser percentage or
separate class vote may be specified, by law or by any other provision of
these Articles of Incorporation or in any agreement with any national
securities exchange or otherwise.
B. The provisions of Section A of this Article VIII shall not be
applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative
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vote, if any, as is required by law or by any other provision of these
Articles of Incorporation or in any agreement with any national securities
exchange or otherwise, if the conditions specified in either of the following
subparagraphs 1 or 2 are met:
1. The Business Combination shall have been approved by a majority of the
Continuing Directors (as hereinafter defined).
2. All of the following conditions shall have been met:
a. The aggregate amount of cash and the Fair Market Value (as hereinafter
defined) as of the date of the consummation of the Business
Combination of consideration other than cash to be received per share
by holders of common stock in such Business Combination shall be at
least equal to the higher amount determined under clauses (i) and (ii)
below:
(i) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees)
paid by or on behalf of the Interested Shareholder (as hereinafter
defined) for any share of common stock in connection with the
acquisition by the Interested Shareholder of beneficial ownership of
shares of common stock (a) within the two-year period immediately
prior to the date of the first public announcement of the proposed
Business Combination (the "Announcement Date") or (b) in the
transaction in which it became an Interested Shareholder, whichever is
higher and
(ii) the Fair Market Value per share of common stock on the
Announcement Date or on the date on which the Interest Shareholder
became an Interested Shareholder (such later date being referred to
herein as the "Determination Date"), whichever is higher.
b. The aggregate amount of cash and the Fair Market Value as of the date
of the consummation of the Business Combination of consideration other
than cash to be received per share by holders of shares of any class
or series of outstanding capital stock (as hereinafter defined), other
than common stock, shall be at least equal to the highest amount
determined under clauses (i), (ii) and (iii) below:
(i) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees)
paid by or on behalf of the Interested Shareholder for any share of
such class or series of capital stock in connection with the
acquisition by the Interested Shareholder of beneficial ownership of
shares of such class or series of capital stock (a) within the two-
year period immediately prior to the Announcement Date or (b) in the
transaction in which it became an Interested Shareholder, whichever is
higher.
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(ii) the Fair Market Value per share of such class or series of
capital stock on the Announcement Date or on the Determination Date,
whichever is higher, and
(iii) (if applicable) the highest preferential amount per share to
which the holders of shares of such class or series of capital stock
would be entitled in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, regardless of whether the Business Combination to be
consummated constitutes such an event.
The provisions of this Paragraph 2.b shall be required to be met with
respect to every class or series of outstanding Capital Stock, whether
or not the Interested Shareholder has previously acquired beneficial
ownership of any shares of a particular class or series of Capital
Stock.
c. The consideration to be received by holders of a particular class or
series of outstanding Capital Stock shall be in cash or in the same
form as previously has been paid by or on behalf of the Interested
Shareholder in connection with its direct or indirect acquisition of
beneficial ownership of shares of such class or series of Capital
Stock. If the consideration so paid for shares of any class or series
of Capital Stock varied as to form, the form of consideration for such
class or series of Capital Stock shall be either cash or the form used
to acquire beneficial ownership of the largest number of shares of
such class or series of Capital Stock previously acquired by the
Interested Shareholder.
The price determined in accordance with Paragraphs 2.a and 2.b of
Section B of this Article VIII shall be subject to appropriate
adjustments in the event of any stock dividend, stock split,
combination of shares or similar event.
d. After such Interested Shareholder has become an Interested Shareholder
and prior to the consummation of such Business Combination: (i) there
shall have been no failure to declare and pay at the regular date
therefor any full quarterly dividends (whether or not cumulative)
payable in accordance with the terms of any outstanding Capital Stock,
expect as approved by a majority of the Continuing Directors;
(ii) there shall have been no reduction in the annual rate of
dividends paid on the Common Stock (except as necessary to reflect any
stock dividend, stock split, combination of shares or similar event),
except as approved by a majority of the Continuing Directors;
(iii) there shall have been an increase in the annual rate of
dividends paid on the Common Stock as necessary to reflect any
reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction that has
the effect of reducing the number of outstanding shares of Common
Stock, unless the failure to increase such annual rate is approved by
a majority of the Continuing Directors; and (iv) except as approved
by a majority of the Continuing Directors, such Interested Shareholder
shall not have become the beneficial owner of any
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additional shares of Capital Stock except as part of the transaction
that results in such Interested Shareholder becoming an Interested
Shareholder and except in a transaction that, after giving effect
thereto, would not result in any increase in the Interested
Shareholder's percentage beneficial ownership of any class or series
of Capital Stock.
e. After such Interested Shareholder has become an Interested
Shareholder, such Interested Shareholder shall not have received the
benefit, directly or indirectly (except proportionately as a
shareholder of the Corporation), of any loans, advances, guarantees,
pledges or other financial assistance or any tax credits or other tax
advantages provided by the Corporation, whether in anticipation of or
in connection with such Business Combination or otherwise.
f. A proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Securities
Exchange Act of 1934 and the rules and regulations thereunder (the
"Act") (or any subsequent provisions replacing such Act, rules or
regulations) shall be mailed to all shareholders of the Corporation at
least 30 days prior to the consummation of such Business Combination
(whether or not such proxy or information statement is required to be
mailed pursuant to the Act or subsequent provisions). The proxy or
information statement shall contain on the first page thereof, in a
prominent place, any statement as to the advisability (on
inadvisability) of the Business Combination that a majority of the
Continuing Directors may choose to make and, if deemed advisable by a
majority of the Continuing Directors, the opinion of an investment
banking firm selected by a majority of the Continuing Directors as to
the fairness (or lack of fairness) of the terms of the Business
Combination from a financial point of view to the holders of the
outstanding shares of Capital Stock other than the Interested
Shareholder and its Affiliates (as hereinafter defined) or Associates
(as hereinafter defined).
g. Such Interested Shareholder shall not have made or caused to be made
any major change in the Corporation's business or equity capital
structure without the approval of a majority of the Continuing
Directors.
C. For the purposes of this Article VIII:
1. The term "Business Combination" shall mean:
a. any merger, consolidation or statutory exchange of shares of the
Corporation or any Subsidiary (as hereinafter defined) with (i) any
Interested Shareholder or (ii) any other corporation (whether or not
itself an Interested Shareholder) which is or after such merger,
consolidation or statutory share exchange would be an Affiliate or
Associate of an Interested Shareholder provided, however, that the
foregoing shall not include the merger of a wholly-owned Subsidiary of
the Corporation into the
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Corporation or the merger of two or more wholly-owned Subsidiaries of
the Corporation; or
b. any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or
with an Interested Shareholder or any Affiliate or Associate of any
Interested Shareholder of any assets of the Corporation or any
Subsidiary equal to or greater than ten (10%) percent of the book
value of the consolidated assets of the Corporation; or
c. any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or
with the Corporation or any Subsidiary of any assets of any Interested
Shareholder or any Affiliate or Associate of any Interested
Shareholder equal to or greater than ten (10%) percent of the book
value of the consolidated assets of the Corporation; or
d. the issuance or transfer by the Corporation or any Subsidiary (in one
transaction or a series of transactions) to any Interested Shareholder
or any Affiliate or Associate of any Interested Shareholder of any
securities of the Corporation (except pursuant to stock dividends,
stock splits, or similar transactions which would not have the effect,
directly or indirectly, of increasing the proportionate share of any
class or series of Capital Stock, or any securities convertible into
Capital Stock or into equity securities of any Subsidiary that is
beneficially owned by an Interested Shareholder or any Affiliate or
Associate of any Interested Shareholder) or of any securities of a
Subsidiary (except pursuant to a pro rata distribution to all holders
of Common Stock of the Corporation); or
e. the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an
Interested Shareholder or any Affiliate or Associate of any Interested
Shareholder; or
f. any transaction (whether or not with or otherwise involving an
Interested Shareholder) that has the effect, directly or indirectly,
of increasing the proportionate share of any class or series of
Capital Stock, or any securities convertible into Capital Stock or
into equity securities of any Subsidiary, that is beneficially owned
by any Interested Shareholder or any Affiliate or Associate of any
Interested Shareholder, including without limitation any
reclassification of securities (including any reverse stock split), or
recapitalization of the Corporation, or any merger, consolidation or
statutory exchange of shares of the Corporation with any of its
Subsidiaries; or
g. any agreement, contract or other arrangement or understanding
providing for any one or more of the actions specified in the
foregoing clauses (a) to (f).
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2. The term "Capital Stock" shall mean all capital stock of the
Corporation authorized to be issued from time to time under Article III of
these Articles of Incorporation. The term "Voting Stock" shall mean all
Capital Stock of the Corporation entitled to vote generally, in the
election of directors of the Corporation.
3. The term "person" shall mean any individual, firm, corporation or
other entity and shall include any group comprised of any person and any
other person with whom such person or any Affiliate or Associate of such
person has any agreement, arrangement or understanding, directly or
indirectly, for the purpose of acquiring, holding, voting or disposing of
Capital Stock.
4. The term "Interested Shareholder" shall mean any person (other than
the Corporation or any Subsidiary and other than any profit-sharing,
employee stock ownership or other employee benefit plan of the Corporation
or any Subsidiary or any trustee of or fiduciary with respect to any such
plan when acting in such capacity) who (a) is the beneficial owner of
Voting Stock representing ten (10%) percent or more of the votes entitled
to be cast by the holders of all then outstanding shares of Voting Stock;
or (b) is an Affiliate or Associate of the Corporation and at any time
within the two-year period immediately prior to the date in question was
the beneficial owner of Voting Stock representing ten (10%) percent or more
of the votes entitled to be cast by the holders of all then outstanding
shares of Voting Stock; or (c) is an assignee of or has otherwise succeeded
to any shares of Voting Stock which were at any time within the two-year
period immediately prior to the date in question beneficially owned by any
Interested Shareholder, if such assignment or succession shall have
occurred in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act of
1933.
5. A person shall be a "beneficial owner" of any Capital Stock (a) which
such person or any of its Affiliates or Associates beneficially owns,
directly or indirectly, (b) which such person or any of its Affiliates or
Associates has, directly or indirectly (i) the right to acquire (whether
such right is exercisable immediately or subject only to the passage of
time), pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement, arrangement
or understanding, or (iii) the right to dispose or direct the disposition
of, pursuant to any agreement, arrangement or understanding, or (c) which
are beneficially owned, directly or indirectly, by any other person with
which such person or any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting
or disposing of any shares of Capital Stock. For the purposes of
determining whether a person is an Interested Shareholder pursuant to
Paragraph 4 of this Section C, the number of shares of Capital Stock deemed
to be outstanding shall include shares deemed beneficially owned by such
person through application of this Paragraph 5, but shall not include any
other shares of Capital Stock that may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion
rights, exchange rights, warrants or options, or otherwise.
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6. The term "Affiliate," used to indicate a relationship with a specified
person, shall mean a person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common
control with, such specified person. The term "Associate," used to
indicate a relationship with a specified person, shall mean (a) any person
(other than the Corporation or a Subsidiary) of which such specified person
is an officer or partner or is, directly or indirectly, the beneficial
owner of ten (10%) percent or more of any class of equity securities,
(b) any trust or other estate in which such specified person has a
substantial beneficial interest or as to which such specified person serves
as trustee or in a similar fiduciary capacity, (c) any relative or spouse
of such specified person or any relative of such spouse, who has the same
home as such specified person or who is a director or officer of the
Corporation or any Subsidiary, and (d) any person who is a director or
officer of such specified person or nay of its parents or subsidiaries
(other than the Corporation or a Subsidiary).
7. The term "Subsidiary" shall mean any corporation of which a majority
of any claim of equity security is beneficially owned, directly or
indirectly, by the Corporation provided, however, that for the purposes of
Paragraph 4 of this Section C, the term "Subsidiary" shall mean only a
corporation of which a majority of each claim of equity security is
beneficially owned, directly or indirectly, by the Corporation.
8. The term "Continuing Director" shall mean any member of the Board of
Directors of the Corporation, while such person is a member of the Board of
Directors, who was a member of the Board of Directors prior to the time
that the Interested Shareholder involved in the Business Combination in
question became an Interested Shareholder, and any member of the Board of
Directors, while such person is a member of the Board of Directors, whose
election, or nomination for election by the Corporation's shareholders, was
approved by a vote of the majority of the Continuing Directors; provided,
however, that in no event shall an Interested Shareholder involved in the
Business Combination in question or any Affiliate, Associate or
representative of such Interested Shareholder, be deemed to be a Continuing
Director.
9. The term "Fair Market Value" shall mean (a) in the case of cash, the
amount of such cash; (b) in the case of stock, the highest closing sale
price during the 30-day period immediately preceding the date in question
of a share of such stock on the Composite Tape for New York Stock Exchange-
Listed Stocks, or, if such stock is not quoted on the Composite Tape on the
New York Stock Exchange, or, if such stock is not listed on such Exchange,
on the principal United States securities exchange registered under the Act
on which such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to a share of such
stock during the 30-day period preceding the date in question on the
National Association of Securities Dealers, Inc. Automated Quotations
System or any similar system then in use, or if no such quotations are
available, the fair market value on the date in question of a share of such
stock as determined by a majority of the Continuing Directors in good
faith; and (c) in the case of property other than
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cash or stock, the fair market value of such property, on the date in
question as determined in good faith by a majority of the Continuing
Directors.
10. In the event of any Business Combination in which the Corporation
survives, the phrase "consideration other than cash to be received" as used
in Paragraphs 2.a and 2.b of Section B of this Article VIII shall include
the shares of Common Stock and/or the shares of any other class or series
of Capital Stock retained by the holders of such shares.
D. The Continuing Directors by majority vote shall have the power to
determine for the purposes of this Article VIII, on the basis of information
known to them after reasonable inquiry, (a) whether a person is an Interested
Shareholder, (b) the number of shares of Capital Stock (including Voting
Stock) or other securities beneficially owned by any person, (c) whether a
person is an Affiliate or Associate of another, (d) whether the assets that
are the subject of any Business Combination equal or exceed ten (10%) percent
of the book value of the consolidated assets of the Corporation, (e) whether
a proposed plan of dissolution or liquidation is proposed by or on behalf of
an Interested Shareholder or any Affiliate or Associate of any Interested
Shareholder, (f) whether any transaction has the effect, directly or
indirectly, of increasing the proportionate share of any class or series of
Capital Stock, or any securities convertible into Capital Stock or into
equity securities of any Subsidiary, that is beneficially owned by an
Interested Shareholder or any Affiliate or Associate of an Interested
Shareholder, (g) whether any Business Combination satisfies the conditions
set forth in Paragraph 2 of Section B of this Article VIII, and (h) such
other matters with respect to which a determination is required under this
Article VIII. Any such determination made in good faith shall be binding and
conclusive on all parties.
E. Nothing contained in this Article VIII shall be construed to
relieve any Interested Shareholder from any fiduciary obligation imposed by
law.
F. The fact that any Business Combination complies with the provisions
of Section B of this Article VIII shall not be construed to impose any
fiduciary duty, obligation or responsibility on the Board of Directors, or
any member thereof, or the Continuing Directors, or any of them, to approve
such Business Combination or recommend its adoption or approval to the
shareholders of the Corporation, nor shall such compliance limit, prohibit or
otherwise restrict in any manner the Board of Directors, or any member
thereof, or the Continuing Directors, or any of them, with respect to
evaluations of or actions and responses taken with respect to such Business
Combination.
G. Notwithstanding the fact that a lesser percentage or separate class
vote may be specified by law or these Articles of Incorporation, the
affirmative vote of the holders of not less than seventy-five (75%) percent
of the votes entitled to be cast by the holders of all then outstanding
shares of Voting Stock, voting together as a single class, shall be required
to amend or repeal, or adopt any provisions inconsistent with, this Article
VIII.
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ARTICLE IX
EVALUATION DIRECTIVES
The Board of Directors shall not approve, adopt or recommend any
proposal to enter into a Business Combination, or any offer of any person,
other than the Corporation, to make a tender or exchange offer for any
capital stock of the Corporation, unless and until the Board of Directors
shall first establish a procedure for evaluating, and shall have evaluated,
the proposal or offer, and determined that it would be in compliance with all
applicable laws and in the best interests of the Corporation and its
shareholders. In connection with its evaluation, the Board of Directors may
seek and obtain the advice of independent investment counsel, may seek and
rely upon an opinion of legal counsel and other independent advisors, and may
test such compliance with laws in any state or federal court or before any
state or federal administrative agency that may have appropriate
jurisdiction. In connection with its evaluation as to the best interests of
the Corporation and its shareholders, the Board of Directors shall consider
all factors that it deems relevant or the shareholders may deem relevant,
including without limitation: (a) the adequacy and fairness of the
consideration to be received by the Corporation and/or its shareholders
considering the future prospects of the Corporation and its business,
historical trading prices of the Corporation's capital stock, the price that
might be achieved in a negotiated sale of the Corporation as whole, and
premiums over trading prices that have been proposed or offered with respect
to securities of other companies in the past in connection with similar
offers; (b) the business, financial condition and earnings prospects of the
acquiring person or entity and the competence, experience, and integrity of
the acquiring person or entity and their or its management; and (c) the
potential social and economic impact of the offer and its consummation on the
communities in which the Corporation and its subsidiaries operate or are
located and upon the Corporation, its subsidiaries, and their employees, and
customers.
ARTICLE X
STOCK REDEMPTION
A. In the event that any person becomes the beneficial owner, directly
or indirectly, of thirty (30%) percent or more of the outstanding shares of
the common stock and any of such shares of common stock were acquired
pursuant to a tender offer (such person hereinafter referred to as an
"Acquiring Person"), each holder of shares of common stock, other than the
Acquiring Person or a transferee of the Acquiring Person, shall have the
right until and including the forty-fifth (45th) day following the date of
mailing the notice to holders of shares of common stock referred to in
Section C herein to tender the shares of common stock held by such holder to
the Corporation for repurchase by the Corporation at the Repurchase Price
determined as provided in Section E herein, and each holder, other than the
Acquiring Person or a transferee of the Acquiring Person, of securities
convertible into shares of common stock or of options, warrants, or rights
exercisable to acquire shares of common stock, shall have the right
simultaneously with the conversion of such securities or exercise of such
options, warrants, or rights to tender the shares of common stock to
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be received thereupon by such holder to the Corporation for repurchase by the
Corporation at the Repurchase Price; provided that no holder of shares of
common stock shall have any right to tender shares of common stock redeemed
by the Corporation pursuant to this Article X if the Corporation, acting
pursuant to the action of two-thirds (2/3rds) of the members of its Board of
Directors, shall within ten (10) days following the announcement or
publication of such tender offer or following any amendment to such tender
offer recommend to the holders of shares of common stock that such tender
offer be accepted by such holders.
B. For purposes of this Article X:
1. The term "person" shall include an individual, a corporation,
partnership, trust or other entity. When two or more persons act as a
partnership, limited partnership, syndicate, or other group or otherwise in
concert for the purpose of acquiring shares of Common Stock, such
partnership, syndicate or group shall be deemed a "person."
2. For the purpose of determining whether a person is an Acquiring
Person, such person shall be deemed to own beneficially (i) all shares of
common stock the voting power of which such person controls or shares,
(ii) all shares of common stock which such person has the immediate or
future right to acquire, directly or indirectly, pursuant to agreements,
through the exercise of options, warrants or rights or through the
conversion of convertible securities or otherwise; and all shares of common
stock which such person has the right to acquire in such manner shall be
deemed to be outstanding shares, but shares of common stock which any other
unaffiliated person has the right to acquire in such manner shall not be
deemed to be outstanding shares.
3. The acquisition of shares of common stock by the Corporation or by any
person controlled by the Corporation shall not give rise to the right in
any person to have shares of common stock redeemed pursuant to this
Article X.
4. The right to tender shares of common stock to the Corporation for
repurchase pursuant to this Article X shall attach to such shares and shall
not be personal to the holder thereof.
5. The term "tender offer" shall mean an offer to acquire or an
acquisition of shares of common stock pursuant to a request or invitation
for tenders or an offer to purchase such shares for cash, securities or any
other consideration.
6. The term "market purchase" shall mean the acquisition of shares of
common stock from holders of such shares in privately negotiated
transactions or in transactions effected through a broker or dealer.
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7. Subject to the provisions of Subparagraph B.2 herein, "outstanding
shares" shall mean shares of common stock which at the time in question
have been issued by the Corporation and not reacquired and held or retired
by it or held by any Subsidiary of the Corporation.
C. Procedure:
1. Not later than twenty days following the date on which the Corporation
receives credible notice that any person has become an Acquiring Person
whereupon the rights shall be engendered to tender shares of common stock
to the Corporation for repurchase by the Corporation under this Article X,
the Corporation shall give written notice, by first class mail, postage
prepaid, at the addresses shown on the records of the Corporation, to each
holder of record of shares of common stock (and to any other person known
by the Corporation to have rights so to tender pursuant to Paragraph A of
this Article) as of a date not more than ten (10) days prior to the date of
the mailing pursuant to this Paragraph C and shall advise each such holder
of the right to tender shares for repurchase by the Corporation and the
procedures for such tender and repurchase. In the event that the
Corporation fails to give notice as required by this Paragraph C, any
holder entitled to receive such notice may serve written demand upon the
Corporation to give such notice. If within ten days after the receipt of
written demand the Corporation fails to give the required notice, such
holder may at the expense and on behalf of the Corporation take such
reasonable action as may be appropriate to give notice or to cause notice
to be given pursuant to this Paragraph C.
2. In the event shares of common stock become subject to rights of
repurchase in accordance with this Article X, the Directors of the
Corporation shall designate a Repurchase Agent, which shall be a
corporation or association (i) organized and doing business under the laws
of the United States or any State, (ii) subject to supervision or
examination by Federal or State authority, (iii) having combined capital
and surplus of at least $5,000,000 and (iv) having the power to exercise
corporate trust powers.
3. For a period of forty-five (45) days from the date of the mailing of
the notice to holders of shares of common stock referred to in this
Paragraph C, holders of shares of common stock and other persons entitled
to tender shares of common stock to the Corporation for repurchase pursuant
to this Article X may, at their option, deposit certificates representing
all or less than all of the shares of common stock held of record by them
with the Repurchase Agent, together with written notice that the holder is
tendering such shares for repurchase pursuant to this Article X.
4. The Corporation shall promptly deposit in trust with the Repurchase
Agent cash in an amount equal to the aggregate Repurchase Price of all of
the shares of common stock deposited with the Repurchase Agent for purposes
of repurchase.
5. As soon as practicable after receipt by the Repurchase Agent of the
cash deposit by the Corporation referred to in this Paragraph C, the
Repurchase Agent shall issue its checks
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payable to the order of the persons entitled to receive the Repurchase
Price of all of the shares of common stock in respect of which such cash
deposit was made.
D. All shares of common stock with respect to which repurchase has
been effected pursuant to this Article X shall thereupon be retired.
E. The Repurchase Price shall be the amount payable by the Corporation
in respect of each share of common stock tendered for repurchase pursuant to
this Article X and shall be the greater amount determined on either of the
following bases:
(i) The highest price per share of common stock, including any
commission paid to brokers or dealers for solicitation or whatever, at
which shares of common stock held by the Acquiring Person were
acquired pursuant to a tender offer regardless of when such tender
offer was made, or were acquired pursuant to any market purchase or
otherwise within eighteen months prior to the notice to holders of
shares of common stock referred to in Paragraph C herein. For
purposes of this subsection (i), if the consideration paid in any such
acquisition of shares of common stock consisted, in whole or part, of
consideration other than cash, the Board of Directors of the
Corporation shall take such action, as in its judgment it deems
appropriate, to establish the cash value of such consideration, but
such valuation shall not be less than the cash value, if any, ascribed
to such consideration by the Acquiring Person; or
(ii) The highest sale price per share of common stock for any trading
day during the eighteen months prior to the notice to holders of
shares of common stock referred to in Paragraph C herein. For
purposes of this subsection (ii), the sale price for any trading day
shall be the mean of the closing high bid and low asked price per
share of common stock, or if the shares of common stock are traded on
a national securities exchange, the last sale price per share of
common stock.
The determinations to be made pursuant to this Paragraph E shall be made
by the Board of Directors not later than the date of the notice to holders of
shares of common stock referred to in Paragraph C herein. In making such
determinations the Board of Directors may engage such persons and utilize
employees and agents of the Corporation, who will, in the judgment of the
Board of Directors, be of assistance to the Board of Directors.
The determinations to be made pursuant to this Paragraph E, when made by
the Board of Directors acting in good faith, shall be conclusive and binding
upon the Corporation and its shareholders, including any person referred to
herein.
F. No amendment or repeal of this Article X adopted after the notice
to holders of shares of common stock referred to in Paragraph C.3 herein
shall affect the holders' rights of tender for repurchase as to any shares of
common stock theretofore or thereafter deposited with the Repurchase
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Agent for repurchase by the Corporation under this Article X pursuant to such
notice or any subsequent notice given pursuant to Paragraph G of this Article
X.
G. In the event that repurchase pursuant to this Article X of all or
any part of the shares of common stock is prohibited or prevented by
Minnesota Business Corporation Act, Chapter 302A of Minnesota Statutes or any
similar provision hereafter enacted or by the business combinations and
securities or similar subject matter statutes or regulations of the State of
Minnesota:
1. The Corporation shall so advise the holders of shares of common stock
entitled to the rights of tender for repurchase provided in this Article X
and shall advise them of their modified rights of tender for repurchase as
provided in this Paragraph in the notice required by Paragraph C of this
Article;
2. The Corporation shall take all of the actions required by this
Article to be taken with respect to a repurchase of all of the shares of
common stock deposited with the Repurchase Agent for purposes of
repurchase, provided that it shall determine the number of shares of common
stock which may legally be repurchased at the Repurchase Price and cause
the repurchase only of such number of shares by any reasonable method of
allotment selected by the Repurchase Agent, and provided further that the
Corporation shall not repurchase a fraction of a share. After the
Corporation's deposit in trust with the Repurchase Agent of the cash
deposit provided for in Paragraph C in an amount equal to the aggregate
Repurchase Price of all of the shares of common stock to be repurchased at
the time pursuant to this Paragraph G, the Repurchase Agent shall issue its
checks as provided in Paragraph C and return certificates evidencing shares
of common stock not repurchased to the record holders thereof;
3. The Corporation shall have a continuing obligation to repurchase
shares of common stock deposited with the Repurchase Agent at times and
from time to time by record holders other than the Acquiring Person or an
assignee of the Acquiring Person pursuant to notices issued by the
Corporation in each year succeeding the year in which the first notice of
rights to tender for repurchase is given pursuant to this Article until all
shares so deposited are repurchased. In each such year the Corporation
shall determine the number of shares of common stock which may legally be
repurchased at the Repurchase Price, which price for each such year shall
be the Repurchase Price originally established for the first repurchase
pursuant to this Article provided that, such Repurchase Price shall be
increased by eight percent (8%) per year compounded, and all of the actions
required to be taken by this Paragraph G by the Corporation and the
Repurchase Agent for the first repurchase shall be repeated. Said
repurchase notices shall be issued annually no later than 120 days after
the close of the Corporation's fiscal year commencing with the first full
fiscal year after the first notice of rights to tender for repurchase
pursuant to this Article X, provided that repurchases may be effected more
frequently at the election of the corporation should funds be legally
available therefor; and
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4. Until all of the shares of common stock deposited with the Repurchase
Agent pursuant to the last notice of repurchase are repurchased pursuant to
this Article, the Corporation shall pay no dividends on any of its
outstanding capital stock, whether outstanding at the time the Corporation
issues its first notice pursuant to Paragraph C or at any time thereafter.
H. The provision of this Article X shall control with respect to the
price, terms, times, and means of repurchase of shares in circumstances to
which it is applicable, notwithstanding any provision of Article VIII of
these Amended and Restated Articles.
These Amended and Restated Articles of Incorporation have been approved
pursuant to Chapter 302A, Minnesota Statutes.
I certify that I am authorized to execute this amendment and I further
certify that I understand that by signing this amendment, I am subject to the
penalties of perjury as set forth in Section 609.48 as if I had signed this
amendment under oath.
Dated: March 23, 1994. /s/ Donald W. Hewitt
-------------------------------------
Donald W. Hewitt, President
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[MINNESOTA FORM "CERTIFICATE OF EXCHANGE" NOT RECREATED HERE]
ARTICLES OF EXCHANGE
KNOW ALL MEN BY THESE PRESENTS:
These Articles of Exchange are executed and entered into as of the 23rd
day of March, 1994 by and between DynEco International, Inc., a Minnesota
corporation (hereinafter referred to as "DI") and DynEco Corporation, a
Minnesota corporation (hereinafter referred to as "DYNECO").
WITNESSETH:
ARTICLE I
PLAN OF EXCHANGE
Pursuant to these Articles of Exchange, it is intended and agreed that
DYNECO will acquire at least ninety (90%) percent of all the issued and
outstanding shares of DI Common Stock in exchange for shares of Common Stock
of DYNECO. The terms, conditions, and understandings of the exchange are set
forth in the Plan of Exchange between DI and DYNECO, dated as of March 23,
1994, a copy of which is attached hereto as Exhibit A and incorporated herein
by this reference.
ARTICLE II
APPROVAL OF DYNECO
The Board of Directors of DYNECO duly adopted the Plan of Exchange as
required by applicable statutes.
ARTICLE III
APPROVAL OF SHAREHOLDERS OF DI
Of the issued and outstanding shares of DI Common Stock, 3,497,667 of
such shares were voted in favor of entering into the Plan of Exchange, with
no shares of DI Common Stock dissenting. Such shares were voted individually
and not as a class.
IN WITNESS WHEREOF, the undersigned corporations, acting by their
respective presidents and secretaries, have executed these Articles of
Exchange as of the date first above written.
DYNECO INTERNATIONAL, INC.
By: /s/ Arnold J. Ryden
-------------------------------
Arnold J. Ryden
Chairman
DYNECO CORPORATION
By: /s/ Donald W. Hewitt
-------------------------------
Donald W. Hewitt
President
-2-
PLAN OF EXCHANGE
THIS PLAN OF EXCHANGE, dated as of March 23, 1994, is made and entered
into by and between DynEco Corporation, a Minnesota corporation ("DYNECO"),
also known as the acquiring corporation, and DynEco International, Inc., a
Minnesota corporation ("DI").
WITNESSETH:
WHEREAS, DYNECO is a corporation duly organized and existing under the
laws of the State of Minnesota, having an authorized capital of 10,000,000
shares of Common Stock, $0.01 Par Value, of which 282,184 shares are issued
and outstanding as of the date hereof; and
WHEREAS, DI is a corporation duly organized and existing under the laws
of the State of Minnesota, having an authorized capital of 10,000,000 shares
of capital stock of which 3,762,167 shares are issued and outstanding as of
the date hereof; and
WHEREAS, the respective boards of directors of DYNECO and DI have each
duly approved this Plan of Exchange (the "Plan") providing for the exchange
of shares of DYNECO for shares of capital stock of DI on the terms set forth
herein;
WHEREAS, DYNECO and DI have entered into an Agreement and Plan of
Exchange (the "Agreement"), the terms and conditions of which Agreement is
incorporated by reference and made a part hereof, dated as of June 18, 1993,
setting forth certain representations, warranties, covenants, agreements, and
conditions in connection with said Exchange.
NOW, THEREFORE, based on the foregoing premises and in consideration of
the mutual covenants and agreements herein contained, and for the purpose of
setting forth the terms and conditions of said exchange and the manner and
basis of causing the shares of DI Common Stock to be converted into shares of
Common Stock of DYNECO (the "Common Stock of DYNECO"), and such other
provisions as are deemed necessary or desirable, the parties hereto have
agreed and do hereby agree, subject to the approval and adoption of this Plan
by the requisite vote of the securities holders of DI, and subject to the
conditions hereinafter set forth, as follows:
ARTICLE I
TERMS, MANNER, AND BASIS OF EXCHANGING SHARES
The terms, manner, and basis of exchanging the shares of Common Stock of
DI for shares of the Common Stock of DYNECO, and the mode of carrying the
Exchange into effect are as follows:
(a) Each one share of the Common Stock of DI outstanding on the Effective
Date of the Exchange shall, without any action on the part of the holder
thereof, be converted into one (1) fully paid and nonassessable restricted
share of Common Stock of DYNECO, which share of Common Stock of DYNECO
shall thereupon be duly and validly issued and outstanding, fully paid, and
nonassessable, and shall not be liable to any further call, nor shall the
holder thereof be liable for any further payments with respect thereto.
After the Effective Date of the Exchange, each holder of an outstanding
certificate prior thereto represented shares of the Common Stock of DI
shall be entitled, on surrender thereof to the transfer and exchange agent
of DYNECO and on execution and delivery of a representation letter in a
form acceptable to DYNECO, to receive in exchange therefor a certificate or
certificates representing the number of whole shares of the Common Stock of
DYNECO into which the shares of Common Stock of DI so surrendered shall
have been converted as set forth above, of such denominations and
registered in such names as such holder may request. Until so surrendered,
each such outstanding certificate that, prior to the Effective Date of the
Exchange, represented shares of the Common Stock of DI shall for all
purposes evidence the ownership of the shares of Common Stock of DYNECO
into which shares of Common Stock of DI shall have been converted; provided
that dividends or other distributions that are payable in respect to shares
of Common Stock of DYNECO shall be set aside by DYNECO and shall not be
paid to holders of certificates, representing such shares of Common Stock
of DI until such certificates shall have been surrendered in exchange for
certificates representing shares of Common Stock of DYNECO, and on such
surrender, holders of such shares shall be entitled to receive such
dividends or other distributions without interest. DYNECO shall not issue
any fractional interest in shares of Common Stock of DYNECO in connection
with the aforesaid exchange and the number of shares of DYNECO to which DI
shares will be exchanged shall be rounded to the nearest whole number of
shares. DYNECO shall be entitled to exchange the certificates representing
shares of DI so acquired for a certificate or certificates representing a
like number of shares of DI registered in the name of DYNECO on the books
and records of DI.
(b) All shares of Common Stock of DYNECO for which shares of the Common
Stock of DI shall have been exchanged pursuant to this Article shall be
issued in full satisfaction of all rights pertaining to the shares of
Common Stock of DI.
(c) If any certificate for shares of Common Stock of DYNECO is to be
issued in a name other than that in which the certificate surrendered in
exchange therefor is registered, it shall be a condition of the issuance
thereof that the certificate so surrendered shall be properly endorsed and
otherwise in proper form for transfer and that the person requesting such
exchange pay to DYNECO or any agent designated by it any transfer or other
taxes required by reason of the issuance of a certificate for shares of
Common Stock of DYNECO in any name other than that of the registered holder
of the certificate surrendered, or establish to the satisfaction of DYNECO
or any agent designated by it that such tax has been paid or is not
payable.
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(d) There are no options, warrants, or conversion rights outstanding with
respect to the shares of Common Stock of DI except those identified in DI's
Schedules appended to the Agreement.
ARTICLE II
OTHER PROVISIONS WITH RESPECT TO EXCHANGE
This Plan shall be submitted to a vote of a meeting of securities
holders of DI as provided by the laws of the State of Minnesota. After the
approval or adoption thereof by the securities holders of DI in accordance
with the requirements of the laws of the State of Minnesota, all required
documents shall be executed, filed, and recorded in accordance with all
requirements of the State of Minnesota and subject to the terms and
conditions of the Agreement.
ARTICLE III
APPROVAL AND EFFECTIVE DATE OF THE MERGER; MISCELLANEOUS MATTERS
1. The Exchange shall become effective as of March 31, 1994, subject
to performance of the following:
(a) This Plan shall be authorized, adopted, and approved on behalf of DI
and DYNECO in accordance with the laws of the State of Minnesota; and
(b) Articles of Exchange (with this Plan attached as part thereof),
setting forth the information required by, and executed and certified in
accordance with, the laws of the State of Minnesota shall be filed in the
office of the Secretary of State of Minnesota.
The term "Effective Date" as used herein shall mean and refer to such
meaning stated in Section 3.4 of the Agreement.
2. For the convenience of the parties and to facilitate the filing and
recording of this Plan, any number of counterparts hereof may be executed,
and each such counterpart shall be deemed to be an original instrument and
all such counterparts together shall be considered one instrument.
3. This Plan cannot be altered or amended except pursuant to an
instrument in writing signed on behalf of the parties hereto.
-3-
IN WITNESS WHEREOF, each Constituent Corporation has caused this Plan of
Exchange to be executed, all as of the date first above written.
DYNECO INTERNATIONAL, INC.
By /s/ Arnold J. Ryden
-------------------------------
Arnold J. Ryden
Chairman
DYNECO CORPORATION
By /s/ Donald W. Hewitt
-------------------------------
Donald W. Hewitt
President
-4-
[MINNESOTA FORM SC-00014-06 NOT RECREATED HERE]
[MINNESOTA FORM SC-00014-06 NOT RECREATED HERE]