EXHIBIT 3.10
BY-LAWS
OF
NORTHERN SUPPLY COMPANY, INC.
CONTENTS OF BY-LAWS
OF
NORTHERN SUPPLY COMPANY, INC.
ARTICLE 1. OFFICES
1.1 Registered Office
1.2 Principal Executive Office
ARTICLE 2. CORPORATE SEAL
2.1 Not Required
2.2 Form
ARTICLE 3. SHAREHOLDERS
3.1 Regular Meetings
3.2 Demand by Shareholder: Regular Meetings
3.3 Special Meetings
3.4 Demand by Shareholder: Special Meetings
3.5 Notice of Meetings
3.6 Waiver of Notice
3.7 Quorum
3.8 Record Date
3.9 Voting of Shares
3.10 Voting for Directors
3.11 Voting of Shares by Certain Holders
3.12 Proxies
3.13 Conduct of Meetings
3.14 Shareholder Action Without a Meeting
ARTICLE 4. BOARD OF DIRECTORS
4.1 Management Powers
4.2 Number
4.3 Election
4.4 Qualifications
4.5 Term of Office
4.6 Resignation
4.7 Removal
4.8 Vacancies
4.9 Regular Meetings
4.10 Special Meetings
4.11 Notice of Special Meetings
4.12 Waiver of Notice
4.13 Electronic Communications
4.14 Quorum
4.15 Board Action
4.16 Conduct of Meetings
4.17 Board Action Without a Meeting
4.18 Compensation
4.19 Committees
4.20 Litigation Committee
4.21 Absent Directors
4.22 Liability; Assent to Action
4.23 Conflicts of Interest
ARTICLE 5. OFFICERS
5.1 Generally
5.2 Election and Term of Office
5.3 Resignation
5.4 Removal
5.5 Vacancies
5.6 Chairman of the Board
5.7 President
5.8 Vice President
5.9 Secretary
5.10 Treasurer
5.11 Assistant Officers
5.12 Delegation
5.13 Salaries and Contract Rights
ARTICLE 6. SHARES AND THEIR TRANSFER
6.1 Subscriptions
6.2 Consideration
6.3 Certificates
6.4 Lost Certificates
6.5 Transfer of Shares
6.6 Reacquisition of Shares
6.7 Indebtedness of Shareholders
6.8 Transfer Restrictions
6.9 Pre-emptive Rights
ARTICLE 7. BOOKS AND RECORDS
7.1 Corporate Records
7.2 Financial Records
ARTICLE 8. FINANCIAL AND PROPERTY MANAGEMENT
8.1 Fiscal Year
8.2 Contracts
8.3 Banking
8.4 Loans and Guarantees
8.5 Voting Securities
8.6 Indemnification
8.7 Distributions
ARTICLE 9. AMENDMENTS
9.1 Articles of Incorporation
9.2 By-Laws
9.3 Limitations
BY-LAWS
OF
NORTHERN SUPPLY COMPANY, INC.
ARTICLE 1
OFFICES
1.1 Registered Office. The registered office of the Corporation shall be
1101 Stinson Blvd., Minneapolis, Minnesota 55413. The Board of Directors shall
have the authority to change the registered office of the Corporation from time
to time, and any such change shall be made and filed with the Secretary of State
of Minnesota in the manner provided by law.
1.2 Principal Executive Office. The Corporation shall have its principal
executive office and such other business offices, either within or without the
State of Minnesota, as the Board of Directors may designate or as the business
of the Corporation any require from time to time. The principal executive office
shall be the office where the President of the Corporation, or such other
officer designated in these By-Laws as the chief executive officer of the
Corporation, has his or her office. If such officer has no office, the principal
executive office shall be deemed to be the registered office of the Corporation.
ARTICLE 2
CORPORATE SEAL
2.1 Not Required. The Corporation may, but need not, have a corporate
seal. The use or nonuse of a corporate seal shall not affect the validity,
recordability, or enforceability of a document or action of the Corporation. If
the Corporation has a corporate seal, the use of the seal by the Corporation on
any document shall not be required.
2.2 Form. The corporate seal of the Corporation, if any, shall have
inscribed thereon the words "Northern Supply Company, Inc." or any abbreviation
thereof, and the word "Seal" or the words "Corporate Seal." One or more
duplicate seals may be kept and used by the officers and designated agents of
the Corporation.
ARTICLE 3
SHAREHOLDERS
3.1 Regular Meetings. Regular meetings of the shareholders of the
Corporation shall be held annually, within ninety (90) days following the end of
each fiscal year of the Corporation, at such dates, times, and places as the
President of the Corporation shall designate in the notices of such meetings.
The shareholders at each regular meeting shall elect a Board of Directors for
the ensuing year and shall transact such other business as is appropriate for
shareholder action. Notwithstanding the foregoing, and except as provided in
Section 3.2 below, regular meetings of shareholders need not be held if written
action is taken by the shareholders in lieu thereof, pursuant to Section 3.14 of
these By-Laws.
3.2 Demand by Shareholder: Regular Meetings. If a regular meeting of the
shareholders has not been held during the immediately preceding fifteen (15)
months, a shareholder or shareholders holding three percent (3%) or more of the
voting power of all shares entitled to vote may demand a regular meeting of
shareholders by written notice of demand given to the chief executive officer or
the chief financial officer of the Corporation. Within thirty (30) days after
receipt of the demand by one of said officers, the Board of Directors shall
cause a regular meeting of shareholders to be called and held on notice no later
than ninety (90) days after receipt of the demand, all at the expense of the
Corporation. If the Board of Directors fails to cause a regular meeting to be
called and held, the shareholder or shareholders making the demand may call the
meeting by giving notice as required by Section 3.5 of these By-Laws, all at the
expense of the Corporation. Any regular meeting called by or at demand of a
shareholder or shareholders pursuant to this Section 3.2 shall be held in the
county where the principal executive office of the Corporation is located.
3.3 Special Meetings. Special meetings of the shareholders, for any
purpose or purposes, may be called at any time by:
(a) The President or such other officer designated in these
By-Laws as the chief executive officer of the Corporation; or
(b) The Treasurer or such other officer designated in these
By-Laws as the chief financial officer of the Corporation; or
(c) Two or more directors of the Corporation.
Special meetings shall be held at such dates, times, and places as the
President of the Corporation shall designate in the notices of such meetings.
Business transacted at a special meeting of shareholders shall be limited to the
purposes stated in the notice of such meeting, unless all shareholders have
waived notice of the meeting pursuant to Section 3.6 of these By-Laws.
3.4 Demand by Shareholder: Special Meetings. A shareholder or share-
holders holding ten percent (10%) or more of the voting power of all shares
entitled to vote may demand a special meeting of shareholders by written notice
of demand given to the chief executive officer or the chief financial officer of
the Corporation, containing the purposes of said meeting. Within thirty (30)
days after receipt of the demand by one of said officers, the Board of Directors
shall cause a special meeting of shareholders to be called and held on notice no
later than ninety (90) days after receipt of the demand, all at the expense of
the Corporation. If the Board of Directors fails to cause a special meeting to
be called and held, the shareholder or shareholders making the demand may call
the meeting by giving notice as required by Section 3.5 of these By-Laws, all at
the expense of the Corporation. Any special meeting
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called by, or it the demand of, a shareholder or shareholders pursuant to this
Section 3.4 shall be held in the county where the principal executive office of
the Corporation is located.
3.5 Notice of Meetings. The person or person calling any meeting of
shareholders shall give written notice thereof, by delivery or mail, to every
holder of shares entitled to vote, at least ten (10) days and not more than
sixty (60) days before the date of the meeting. Each notice shall contain the
date, time, and place of the meeting, and each notice of a special meeting shall
contain a statement of the purposes of the meeting. Notice need not be given of
any adjourned meeting if the date, time, and place of the adjourned meeting were
announced at the time of the adjournment.
3.6 Waiver of Notice. A shareholder may waive notice of a meeting of
shareholders, if given in writing before, at, or after the meeting. Attendance
by a shareholder at a meeting is deemed a waiver of notice of that meeting,
except where the shareholder objects at the beginning of the meeting to the
transaction of business because the meeting was 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 the shareholder does not participate
in the consideration of said item at that meeting.
3.7 Quorum. The holders of a majority of the voting power of the shares
entitled to vote at a meeting shall constitute a quorum for the transaction of
business. If a quorum is present when a duly called or held meeting is convened,
the shareholders present may continue to transact business until adjournment,
even though the withdrawal of a shareholder or shareholders originally present
leaves less than the voting power otherwise required for a quorum.
3.8 Record Date. The Board of Directors may fix a date not more than
sixty (60) days before the date of a meeting of shareholders as the date for
determination of the shareholders entitled to notice of and entitled to vote at
the meeting. When a date is so fixed, only shareholders on that date are en-
titled to notice of and permitted to vote at that meeting of shareholders. If
the Board of Directors does not fix a date for such determination, all share-
holders on the date of any notice shall be entitled to notice of and permitted
to vote at the meeting called by such notice.
3.9 Voting of Shares. For purposes of any shareholder action, a share-
holder shall have one vote for each share held. The shareholders shall take
action by the affirmative vote of a majority of the voting power of the shares
present and entitled to vote, except where the Articles of Incorporation or
By-Laws of the Corporation or the laws of the State of Minnesota require a
larger proportion or number. If a shareholder votes without designating the
proportion or number of shares voted in a particular way, the shareholder is
deemed to have voted all of the shares in that way.
3.10 Voting for Directors. Voting for directors shall be governed by the
following rules:
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(a) If Cumulative Voting Permitted. If the Articles of
Incorporation permit, or are amended to permit, cumulative
voting for directors, each shareholder entitled to vote for
directors shall have the right to cumulate those votes in an
election of directors by giving written notice of intent to
cumulate such votes to any officer of the Corporation before
the meeting, or to the presiding officer at the meeting at
which the election is to occur, at any time before the
election of directors at the meeting, in which case:
(i) The presiding officer at the meeting shall announce,
before the election of directors, that shareholders
shall cumulate their votes; and
(ii) Each shareholder shall cumulate those votes either by
casting for one candidate the number of votes equal to
the number of directors to be elected multiplied by the
number of shares held by such shareholder, or by
distributing all of those votes on the same principle
among any number of candidates.
(b) If Cumulative Voting not Permitted. If the Articles provide,
or are amended to provide, that there shall be no cumulative
voting for directors, each shareholder entitled to vote for
directors shall have the right to cast the number of votes
equal to the number of directors to be elected multiplied by
the number of shares held by such shareholder, distributed
evenly among the number of directors to be elected.
3.11 Voting of Shares by Certain Holders. The following rules shall apply
to voting of shares by certain holders thereof:
(a) Beneficial Owners. The Board of Directors may establish a
procedure allowing shareholders to certify in writing that all
or a portion of the shares registered in the name of such
shareholders are held for the account of one or more
beneficial owners. Upon receipt by the Corporation of the
writing, the persons specified as beneficial owners, rather
than the actual shareholders, shall be deemed the shareholders
for the purposes specified in the writing.
(b) Joint Owners. Shares owned by two or more joint tenants may be
voted by any one of them, unless the Corporation receives
written notice from any one of them denying the authority of
another person to vote those shares.
(c) Other Corporations. Shares of the Corporation registered in
the name of another domestic or foreign corporation may be
voted by the chief executive officer or another legal
representative of that Corporation.
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(d) Representatives. Shares under the control of a person in a
capacity as a personal representative, administrator,
executor, guardian, conservator, or attorney-in-fact may be
voted by the person in such capacity, either in person or by
proxy, without registration of those shares in the name of
the person in such capacity. Shares under the control of a
trustee of a trust or a custodian may be voted by such trustee
or custodian, either in person or by proxy, only if such
shares are registered in the name of such trustee or
custodian.
(e) Trustees in Bankruptcy. Shares registered in the name of a
trustee in bankruptcy or a receiver may be voted by such
trustee or receiver either in person or by proxy. Shares under
the control of a trustee in bankruptcy or a receiver may be
voted by such trustee or receiver without registration of the
shares in the name of such trustee or receiver if authority to
do so is contained in an appropriate order of the court by
which such trustee or receiver was appointed.
(f) Other Organizations. Shares registered in the name of a
partnership, limited partnership, joint venture, association,
business trust, enterprise, or other legal or commercial
entity may be voted, either in person or by proxy, by the
legal representatives of such organization.
(g) Pledges. A shareholder whose shares are pledged may vote those
shares unless and until such shares are registered in the name
of the pledgee.
3.12 Proxies. The following rules shall apply to appointment and use of
proxies by shareholders:
(a) Authorization. A shareholder may cast or authorize the casting
of a vote by filing a written appointment of a proxy with an
officer of the Corporation at or before the meeting at which
the appointment is to be effective. An appointment of a proxy
for shares held jointly by two or more shareholders is valid
if signed by any one of them, unless the Corporation receives
from any one of those shareholders written notice either
denying the authority of another person to appoint a proxy or
appointing a different proxy.
(b) Duration. The appointment of a proxy is valid for eleven (11)
months, unless a longer period is expressly provided in the
appointment. No appointment is irrevocable unless the
appointment is coupled with an interest in the shares or in
the Corporation.
(c) Termination. An appointment may be terminated at will, unless
the appointment is coupled with an interest, in which
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case it shall not be terminated except in accordance with the
terms of an agreement, if any, between the parties to the
appointment. Termination may be made by filing written notice
of the termination of the appointment with an officer of the
Corporation, or by filing a new written appointment of a proxy
with an officer of the Corporation. Termination in either
manner revokes all prior proxy appointments and is effective
when filed with an officer of the Corporation.
(d) Revocation by Death or Incapacity. The death or incapacity of
a person appointing a proxy does not revoke the authority of
the proxy, unless written notice of the death or incapacity
is received by an officer of the Corporation before the proxy
exercises the authority under that appointment.
(e) Multiple Proxies. Unless the appointment specifically provides
otherwise, if two or more persons are appointed as proxies for
a shareholder:
(i) Any one of them may vote the shares on each item of
business in accordance with specific instructions
contained in the appointment; and
(ii) If no specific instructions are contained in the
appointment with respect to voting the shares on a
particular item of business, the shares shall be voted
as a majority of the proxies determine. If the proxies
are equally divided, the shares shall not be voted.
(f) Acceptance. Unless the appointment of a proxy contains a
restriction, limitation, or specific reservation of authority,
the Corporation may accept a vote or action taken by a person
named in the appointment. The vote of a proxy is final,
binding, and not subject to challenge, but the proxy is liable
to the shareholder or beneficial owner for damages resulting
from a failure to exercise the proxy or from an exercise of
the proxy in violation of the authority granted in the
appointment.
3.13 Conduct of Meetings. Meetings of shareholders shall be conducted in
accordance with Roberts Rules of Order, Revised. If the Corporation has an
officer designated as Chairman of the Board, the person holding that office
shall preside over all meetings of shareholders. If the Corporation has no such
officer, the President or such other officer designated in these By-Laws as the
chief executive officer shall preside over all meetings of shareholders. In the
absence of such officers at any meeting of shareholders, the shareholders
present at the meeting shall appoint any person present to act as presiding
officer of the meeting. The order of business at each regular meeting, and so
far as possible, at special meetings of shareholders, shall be:
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(a) Calling of roll.
(b) Proof of notice or waivers.
(c) Reading and approval of minutes of previous meetings or action
of shareholders.
(d) Reports.
(e) Election of directors.
(f) Unfinished business.
(g) New business.
(h) Adjournment.
3.14 Shareholder Action Without A Meeting. Any action required or
permitted to be taken at a meeting of shareholders may be taken without a
meeting by written action signed by all shareholders entitled to vote on such
action. The written action is effective when it has been signed by all of such
shareholders, unless a different effective time is set forth in the written
action.
ARTICLE 4
BOARD OF DIRECTORS
4.1 Management Powers. Subject to the provisions of law and of these
By-Laws, the business property, and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors.
4.2 Number. The number of directors of the Corporation shall be one or
more. The number of directors may be increased by valid amendment of these
By-Laws. The number of directors may be decreased by valid amendment of these
By-Laws, subject, however, to the provisions of law and of these By-Laws
respecting removal of directors.
4.3 Election. Directors shall be elected by the affirmative vote of the
shareholders in the manner set forth in Section 3.10 of these By-Laws.
4.4 Qualifications. Directors shall be natural persons. Directors need
not be shareholders or residents of the State of Minnesota.
4.5 Term of Office. Each director shall be elected for an indefinite
term that shall expire at the next regular meeting of the shareholders. Each
director shall hold office until a successor is elected and has qualified, or
until the earlier death, resignation, removal, or disqualification of the
director.
4.6 Resignation. A director may resign at any time by mailing or
personally delivering written notice to the Corporation. The resignation is
effective without acceptance when the notice is given to the Corporation, unless
a later effective time is specified in the notice. No resignation may be
effective prior to the time such notice is given.
4.7 Removal. The following rules shall apply to removal of directors in
office:
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(a) Removal by Directors. A director may be removed by the
affirmative vote of a majority of the remaining directors,
with or without cause, if the director so removed was named by
the Board to fill a vacancy and the shareholders have not
elected directors in the interval between such appointment and
such removal.
(b) Removal by Shareholders. Any one or all of the directors may
be removed at any time, with or without cause, by the
affirmative vote of the holders of the proportion or number
of the voting power of the shares sufficient to elect said
director or directors; provided, however, that if cumulative
voting for directors is permitted, and unless the entire Board
is removed simultaneously, a director may not be removed from
the Board if there are cast against his or her removal votes
of a proportion of the voting power sufficient to elect such
director at an election of the entire Board under cumulative
voting.
4.8 Vacancies. Any vacancy in the Board of Directors resulting from the
death, resignation, removal, or disqualification of a director may be filled by
the affirmative vote of a majority of the remaining directors, even though less
than a quorum. Any vacancy resulting from newly created directorships may be
filled by the affirmative vote of a majority of the directors serving at the
time of the increase. New directors may be elected at the same meeting at which
directors are removed, and, if such meeting is a meeting of shareholders and
cumulative voting for directors is permitted, each shareholder shall be entitled
to cumulate votes in the manner provided in Section 3.10 of these By-Laws. Any
director elected to fill a vacancy shall hold office until a qualified successor
is elected by the shareholders.
4.9 Regular Meetings. Regular meetings of the Board of Directors of the
Corporation shall be held annually, immediately after and at the same location
as the regular meeting of shareholders. No notice of such meetings need be
given. The Board, by resolution, may provide for additional regular meetings
without notice other than such resolution. Any regular meeting for which no
location is specified shall be held at the principal executive office of the
Corporation.
4.10 Special Meetings. Special meetings of the Board of Directors of the
Corporation may be called by or at the request of the chief executive officer of
the Corporation or by any two directors.
4.11 Notice of Special Meetings. The person or persons calling any
special meeting of the Board shall give oral or written notice of such meeting
to all directors at least seven (7) days before the date of the meeting. Each
notice shall contain the date, time, and place of the meeting. Notices need not
state the purpose of the meeting. No notice need be given of any special meeting
if the date, time, and place thereof have been announced at a previous Board
meeting. Notice of an adjourned meeting need not be given other than by
announcement at the meeting at which adjournment is taken.
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4.12 Waiver of Notice. Directors may waive notice of any meeting of the
Board before, at, or after the meeting, in writing, orally, or by attendance.
Attendance at a meeting by a director shall constitute a waiver of notice of
such meeting, unless such director objects at the beginning of the meeting to
the transaction of business because the meeting is not validly called or
convened, and does not participate thereafter in the meeting.
4.13 Electronic Communications. A conference telephone call, or other
conference among directors by any means of communication through which the
directors may simultaneously hear each other during the conference, shall
constitute a meeting of the Board of Directors, provided that any notice or
waiver requirements for a meeting are met and that the number of directors
participating in the conference are sufficient to constitute a quorum at a
meeting. Participation in such a conference shall constitute presence in person
at the meeting.
4.14 Quorum. A majority of the directors currently holding office is a
quorum for the transaction of business. In the absence of a quorum, a majority
of the directors present may adjourn a meeting from time to time until a quorum
is present. If a quorum is present when a duly called or held meeting is
convened, the directors present may continue to transact business until
adjournment, even though the withdrawal of a number of directors originally
present leaves less than the proportion or number otherwise required for a
quorum.
4.15 Board Action. The Board of Directors shall take action by the
affirmative vote of a majority of directors present at a duly held meeting,
except where the Articles of Incorporation or By-Laws of the Corporation or the
laws of the State of Minnesota require a larger proportion or number.
4.16 Conduct of Meetings. Meetings of the Board of Directors shall be
conducted in accordance with Roberts Rules of Order, Revised. If the Corporation
has a Chairman of the Board, he or she shall preside at all meetings of the
Board when present. In the absence of the Chairman, or if the Corporation has no
such officer, the President shall preside at such meetings when present,
otherwise, the directors present at the meeting shall appoint any of them to act
as presiding officer of the meeting. The order of business at each regular
meeting, and so far as possible at special meetings of the Board of Directors,
shall be:
(a) Calling of roll.
(b) Proof of notice or waivers.
(c) Reading and approval of minutes of previous meetings or action
of the Board.
(d) Reports of officers and committees.
(e) Election of officers.
(f) Unfinished business.
(g) New business.
(h) Adjournment.
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4.17 Board Action Without a Meeting. Any action required or permitted to
be taken at a meeting of the Board of Directors may be taken without a meeting
by written action signed by the number of directors that would be required to
take the same action at a meeting of the Board at which all directors were
present, except as to those matters which require shareholder approval, on which
matters the written action shall be signed by all members of the Board of
Directors then in office. All directors shall be notified immediately of the
text and the effective date of any written action taken by less than all of
them, but failure to provide such notice shall not invalidate the written
action. Directors who do not sign or consent to written action taken by the
Board shall have no liability for the action thereby taken.
4.18 Compensation. Directors and any members of committees established by
the Board shall receive such compensation, if any, as may be provided for by
resolution of the Board of Directors. Neither this Section nor such resolution
shall preclude any director from serving the Corporation in any other capacity
and receiving proper compensation therefor.
4.19 Committees. By resolution approved by the affirmative vote of a
majority of the Board of Directors, the Board may establish committees having
the authority of the Board in the management of the business of the Corporation,
but only to the extent provided in such resolution. Committees shall be subject
at all times to the direction and control of the Board (except as provided in
Section 4.20 of these By-Laws). Committee members shall be natural persons and
need not be directors. Committee members shall be appointed by Board action.
4.20 Litigation Committee. The Board of Directors shall have no authority
to establish a committee of disinterested persons to determine whether to pursue
or dismiss any legal proceeding on behalf of the Corporation, as described in
Minn. Stat. 302A.243.
4.21 Absent Directors. A director may give advance written consent or
opposition to a proposal to be acted on at a Board meeting. If the director is
not present at the meeting, consent or opposition to a proposal does not
constitute presence for purposes of determining the existence of a quorum, but
consent or opposition shall be counted as a vote in favor of or against the
proposal and shall 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.
4.22 Liability; Assent to Action. Each director present at a meeting of
the Board of Directors when an action is approved by the affirmative vote of a
majority of the directors present is presumed to have assented to the action
approved, for purposes of such director's liability by reason of being or having
been a director of the Corporation, unless such director:
(a) Objects at the beginning of the meeting to the transaction of
business because the meeting is not lawfully called or
convened and does not participate thereafter in the meeting,
in which event, the director shall not be considered to be
present at the meeting;
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(b) Votes against the action at the meeting; or
(c) Is prohibited by law or Section 4.23 of these By-Laws from
voting on the action.
4.23 Conflicts of Interest. The following rules shall apply to the
contracts or other transactions of the Corporation where a conflict of interest
by one or more directors arises:
(a) Procedure. A contract or other transaction between the
Corporation and one or more directors, or between the
Corporation and an organization in or of which one or more
directors are directors, officers, or legal representatives or
have a material financial interest, if not void or voidable
because the director or directors or the other organizations
are parties or because the director or directors are present
at the meeting of shareholders or the Board of Directors or a
committee at which the contract or transaction is authorized,
approved, or ratified, if:
(i) The contract or transaction was, and the person
asserting the validity of the contract or transaction
sustains the burden of establishing that the contract or
transaction was, fair and reasonable as to the
Corporation at the time it was authorized, approved, or
ratified; or
(ii) The material facts as to the contract or transaction as
to the director's or directors' interest are fully
disclosed or known to the shareholders and the contract
or transaction is approved in good faith by the holders
of a majority of the outstanding shares, but shares
owned by the interested director or directors shall not
be counted in determining the presence of a quorum and
shall not be voted; or
(iii) The material facts as to the contract or transaction and
as to the director's or directors' interest are fully
disclosed or known to the Board or a committee, and the
Board or committee authorizes, approves, or ratifies the
contract or transaction in good faith by a majority of
the Board or committee, but the interested director or
directors shall not be counted in determining the
presence of a quorum and shall not vote; or
(iv) The contract or transaction is a "distribution"
described in Minn. Stat. Sec. 302A.61, Subd. 1 or Subd.
2.
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(b) Material Financial Interest. For purposes of this Section
(i) A director does not have a material financial interest
in a resolution fixing the compensation of such director
or fixing the compensation of another, director as a
director, officer, employee, or agent of the
Corporation, even though the first director is also
receiving compensation from the Corporation; and
(ii) A director has a material financial interest in each
organization in which the director, or the spouse,
parents, children and spouses of children, brothers and
sisters and spouses of brothers and sisters of the
director, or any combination of them have material
financial interest.
ARTICLE 5
OFFICERS
5.1 Generally. The Corporation shall have as its officers a President,
one or more Vice-Presidents, a Secretary, a Treasurer, and such other officers,
assistant officers and agents as the Board of Directors deems necessary for the
operation and management of the Corporation, each of whom shall have the powers,
rights, duties, responsibilities, and terms in office provided for in these
By-Laws or, for offices established by the Board, as determined by Board
resolution. Each officer shall be a natural person. Any number of offices may be
held by the same person. Officers need not be directors or shareholders of the
Corporation, except as provided in Section 5.8 below.
5.2 Election and Term of Office. The officers of the Corporation shall
be elected by the Board of Directors at its regular meeting, and shall hold
office until the next regular meeting of the Board and until their successors
are elected and have qualified, or until the earlier death, resignation,
removal, or disqualification of an officer.
5.3 Resignation. An officer may resign at any time by giving written
notice to the Corporation. The resignation is effective without acceptance when
the notice is given, unless a later effective date is specified in the notice.
5.4 Removal. An officer may be removed at any time, with or without
cause, by a resolution approved by the affirmative vote of a majority of the
directors present at a validly called meeting of the Board of Directors. Removal
shall be without prejudice to contractual rights, if any, held by an officer.
5.5 Vacancies. A vacancy in an office because of death, resignation,
removal, disqualification, or other cause shall be filled for the unexpired
portion of the term by prompt action of the Board of Directors.
5.6 Chairman of the Board. The Corporation shall have no officer
designated as Chairman of the Board unless, by amendment to these By-Laws, such
an office is designated and described.
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5.7 President. The President shall be the chief executive officer of the
Corporation and shall have general active management of the business of the
Corporation; shall preside at meetings of the shareholders of the Corporation
and at meetings of the Board of Directors; shall, with the direction and
approval of the Board, establish and appoint members to committees from time to
time; may execute and deliver in the name of the Corporation any deeds,
mortgages, bonds, contracts or other instruments pertaining to the business of
the Corporation, 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 Board to some other officer or agent of the Corporation; may delegate the
authority to execute and deliver documents to other officers of the Corporation;
shall maintain records of and, whenever necessary, certify any proceedings of
the shareholders and the Board; shall perform such other duties as may from time
to time be prescribed by the Board; and, in general, shall perform all duties
usually incident to the office of the President.
5.8 Vice President. Each Vice President shall have such powers and shall
perform such duties as may be specified by the Board of Directors. In the event
of absence or disability of the President, respective Vice Presidents shall
succeed to the President's powers and duties in the order in which they are
elected, or as otherwise prescribed by the Board, until the President shall
resume his duties or until a new President is elected by the Board. A Vice
President who is not a director shall not succeed to the powers and duties of
the President.
5.9 Secretary. The Secretary shall serve as secretary of, and shall
attend and record the proceedings of, all meetings of the shareholders of the
Corporation and all meetings of the Board of Directors; shall maintain a
register of the names and addresses of all shareholders of the Corporation;
shall maintain to date and have custody of the permanent minute book and records
of the Corporation; shall have custody of and affix the corporate seal, if any,
where appropriate; shall attest to and certify any corporate documents and
instruments; shall give notice and provide proof of notice of meetings and other
proceedings of the shareholders and the Board in accordance with law and these
By-Laws; shall, together with the President, sign certificates for shares and
other securities of the Corporation authorized for issuance by the Board; shall
have general responsibility for the transfer of shares and maintenance of the
share transfer records of the Corporation; shall perform such other duties as
may from time to time be prescribed by the Board or the President; and, in
general, shall perform all duties usually incident to the office of Secretary.
5.10 Treasurer. The Treasurer shall be the chief financial officer of the
Corporation and shall keep accurate financial records for the Corporation; shall
deposit all money, drafts, and checks in the name of and to the credit of the
Corporation in the banks and depositories designated by the Board of Directors;
shall endorse for deposit all notes, checks, and drafts received by the
Corporation as ordered by the Board, making proper vouchers therefor; shall
disburse corporate funds and issue checks and drafts in the name of the
Corporation, as ordered by the Board; shall render to the President and the
Board, whenever requested, an account of all transactions by the Treasurer and
of the financial condition of the Corporation; shall perform such other duties
as may from time to time be prescribed by the President or the Board; and, in
general, shall perform all duties usually incident to the office of Treasurer.
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5.11 Assistant Officers. If the Board of Directors shall establish and
appoint assistant vice presidents, assistant secretaries, or assistant
treasurers, such assistant officers shall have such powers and shall perform
such duties as may be delegated to them by the Board, but each shall be
subordinate to the principal officer to which such assistant officer is
designated to assist. In the event of absence or disability of any Vice
President, Secretary, or Treasurer, respective assistant officers shall succeed
to the powers and duties of such principal officer in the order in which they
are elected or as otherwise prescribed by the Board, until such principal
officer shall resume his duties or until a replacement is elected by the Board.
5.12 Delegation. Except as may be prohibited by these By-Laws or by Board
resolution, an officer may, without Board approval, delegate some or all of such
officer's duties and powers to other persons. An officer who delegates the
duties or powers to other persons. An officer who delegates the duties or powers
of an office remains subject to the standard of conduct for an officer imposed
by law with respect to the discharge of all duties and powers so delegated.
5.13 Salaries and Contract Rights. Salaries and other compensation to
officers, if any, shall be fixed from time to time by the Board. Nothing in this
section shall be construed to preclude an officer from receiving a salary by
reason of the fact that he is also serving the Corporation in a paid or unpaid
capacity as director, consultant, or other capacity. The election or appointment
of a person as an officer or agent of the Corporation shall not, of itself,
create contract rights. The Corporation may enter into a contract with an
officer or agent for a period of time if, in the judgment of the Board, such
contract is in the Corporation's best interests. The fact that a contract may be
for a term longer than the terms of the election or appointment of an officer,
or for a term longer than the terms of the directors who authorized or approved
the contract, shall not make the contract void or voidable.
ARTICLE 6
SHARES AND SHARE TRANSFER
6.1 Subscriptions. Subscriptions for shares shall be in writing and shall
be signed by the subscribers. Each subscription for shares shall be irrevocable
for a period of six (6) months, unless the subscription agreement provides for
an earlier revocation or unless all persons holding subscriptions and all
persons holding shares consent in writing to an earlier revocation.
6.2 Consideration. Shares may be issued for any consideration, including,
without limitation, money or other tangible or intangible property received by
the Corporation under a written agreement, or services rendered to the
Corporation or to be rendered to the Corporation under a written agreement, as
authorized by resolution approved by valid Board action or shareholder action.
Such resolution shall value all non-monetary consideration and establish a price
in money or other consideration, or a minimum price, or a general formula or
method by which the price will be determined. The Corporation shall issue only
shares that are non-assessable or that are assessable but are issued with the
unanimous consent of the shareholders. "Non-assessable" shares are
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shares for which the agreed consideration has been fully paid, delivered, or
rendered to the Corporation. Consideration in the form of a promissory note, a
check, or a written agreement to transfer property or render services to a
Corporation in the future is fully paid when the note, check, or written
agreement is delivered to the Corporation.
6.3 Certificates. Each shareholder shall be entitled to a certificate from
the Corporation representing the shares owned by such shareholder. Certificates
shall be numbered on their face in the order in which they are issued, shall
state the name of the Corporation, shall contain a statement that the
Corporation is incorporated under the laws of Minnesota, and shall state the
name of the shareholder. Each certificate shall be signed in the name of the
Corporation by the President, or by such other officers or agents as may be
authorized by resolution of the Board of Directors. The Corporation shall
maintain at its principal executive office, a record of each certificate issued,
including the number, the person to whom issued, the number of shares
represented by such certificate, the date of issuance, and the date of
cancellation, if any. Each certificate surrendered to the Corporation for
transfer or exchange shall be cancelled. No certificate shall be issued in
exchange for or upon transfer of an existing certificate unless and until such
existing certificate is cancelled, except as provided in Section 6.4 herein. A
validly issued certificate shall be prima facie evidence of ownership of the
shares represented by such certificate, for all purposes.
6.4 Lost Certificates. When an existing certificate for shares of the
Corporation is alleged to have been lost, stolen, or destroyed, a new share
certificate may be issued pursuant to Minn. Stat. Sec. 336.8-405, as amended.
6.5 Transfer of Shares. Unless a transfer agent for the Corporation is
designated by affirmative resolution of the Board of Directors, the Corporation
shall transfer its own shares. Transfer of shares may be authorized only by the
shareholder named in the certificate for such shares, or by the shareholder's
legal representative or duly authorized attorney-in-fact, upon proper evidence
of such authority, and upon surrender of all certificates for the shares to be
transferred, duly endorsed for transfer, or pursuant to Section 6.4 herein.
6.6 Reacquisition of Shares. The Corporation may acquire its own shares,
subject to any restrictions or limitations imposed by law. Shares so acquired
shall constitute authorized but unissued shares of the Corporation and shall be
subject to all rights, terms, and provisions which apply to the issuance of
authorized but unissued shares.
6.7 Indebtedness of Shareholders. The Corporation shall have a security
interest in and a first lien upon its issued and outstanding shares, and upon
all dividends declared on such shares, for the repayment of any indebtedness of
the respective holders of such shares to the Corporation.
6.8 Transfer Restrictions. No shareholder shall be permitted to transfer
his or her shares, whether by sale, exchange, gift, pledge, assignment, or other
disposition, and whether or not for consideration, without first offering to
sell such shares to the other shareholders and to the Corporation, in the
following manner:
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(a) To Other Shareholders. The other shareholders of the
Corporation shall have a right of first refusal to purchase
the shares proposed to be transferred, each in the proportion
that his or her shares bear to the total shares owned by the
other shareholders. The right shall exist for thirty (30) days
after the date of such offer. The price of the shares shall be
determined by agreement of the parties or by an independent
appraiser selected by the parties, and if the parties cannot
agree on a price or on an appraiser, the price may be
established by evidence presented by the selling shareholder
of the offer of any bona fide purchaser. If a price is not
determined in this manner, the transfer shall not be
permitted. If any shareholder purchases less than his or her
allowed proportion of shares available, then the excess shares
may be purchased by the remaining shareholders in the
proportion determined above, after excluding the shares held
by the non-buying shareholder.
(b) To the Corporation. The Corporation shall have a right of
second refusal to purchase any shares not purchased under
subsection (a) above. The right shall exist for thirty (30)
days after the date of the expiration of the refusal period
under subsection (a). The price of the shares shall be the
price determined under subsection (a).
Any shares not purchased under subsections (a) or (b) above may be
transferred to any parties; provided, however, that if the offering price under
subsections (a) or (b) was determined by reference to the offer of a bona fide
purchaser, the shares shall not be transferred for consideration less than such
price. Each certificate issued for shares of the Corporation shall bear the
following legend conspicuously on its face or back:
"The sale, exchange, pledge, assignment, or other disposition of the
shares represented by this certificate is subject to the transfer
restrictions contained in the By-Laws of this Corporation, and
reference should be made thereto for the terms of such
restrictions."
Nothing in this Section shall affect the transfer of shares as a result of
the death of a shareholder or as a result of the dissolution, merger, or
reorganization of a corporate shareholder. Any restrictions in this section may
be waived in writing by the other shareholders, the Corporation, of all parties.
6.9 Pre-emptive Rights. When proposing the issuance of securities with
respect to which shareholders have pre-emptive rights, the Board of Directors
shall cause notice to be given to each shareholder entitled to pre-emptive
rights at least ten (10) days prior to the date by which such rights must be
exercised. Notice shall contain the following:
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(a) The number or amount of securities with respect to which the
shareholder has pre-emptive rights and the method used to
determine such number or amount;
(b) The price and other terms and conditions upon which the
shareholder may purchase such securities;
(c) The time within which and the method by which the shareholder
must exercise the pre-emptive rights.
A Shareholder may waive pre-emptive rights in writing, and such waiver
shall be binding upon the shareholder whether or not consideration has been
given therefor. A waiver is effective only for the proposed securities issuance
described in such waiver, unless otherwise provided therein. This Section 6.9
shall have no application if the Articles of Incorporation deny, or are amended
to deny, pre-emptive rights to acquire securities of the Corporation.
ARTICLE 7
BOOKS AND RECORDS
7.1 Corporate Records. The Corporation shall keep at its principal
executive office originals or copies of the following records and documents:
(a) Articles of Incorporation and all amendments currently in
effect;
(b) By-Laws and all amendments currently in effect;
(c) Minutes or records of all proceedings of shareholders for at
least the last three (3) years or since the incorporation of
the Corporation;
(d) Minutes or records of all proceedings of the Board of
Directors for at least the last three (3) years or since the
incorporation of the Corporation;
(e) A share register not more than one (1) year old, containing
the names and addresses of the shareholders and the number and
classes of shares held by each shareholder;
(f) A share issuance and transfer record, showing the dates on
which certificates representing shares were issued or
transferred;
(g) Reports made to shareholders generally within the last three
(3) years;
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(h) A statement of the names and usual business addresses of the
Corporation's directors and principal officers;
(i) Voting trust agreements described in Minn. Stat. Sec.
302A.453;
(j) Shareholder control agreements described in Minn. Stat. Sec.
302A.457.
Any shareholder, beneficial owner, or holder of a voting trust certificate
shall have the right, upon written demand, to examine in person or by a legal
representative, at any reasonable time, all records and documents referred to in
this Section 7.1 unless the Corporation obtains a protective order permitting
the Corporation to withhold portions of the records of proceedings of the Board.
7.2 Financial Records. The Corporation shall keep appropriate and complete
financial records at its principal executive office. Upon the written request of
any shareholder, the Corporation shall furnish to such shareholder copies of
annual financial statements, including at least a balance sheet as of the end of
each fiscal year and a statement of income for the fiscal year. If such
statements are not audited by a public accountant, each copy shall be
accompanied by a statement of the Treasurer of the Corporation stating his or
her reasonable belief that the financial statements were prepared in accordance
with accounting methods reasonable in the circumstances, describing the basis of
presentation, and describing any respects in which the financial statements were
not prepared on a basis consistent with those prepared for the previous year. If
the Corporation has financial statements for its most recent interim period
prepared in the course of operation, for distribution to shareholders or to a
governmental agency as a matter of public record, such statements shall be kept
available for inspection in the same manner as those records designated in
Section 7.1 herein.
ARTICLE 8
FINANCIAL AND PROPERTY MANAGEMENT
8.1 Fiscal Year. The fiscal year of the Corporation shall be established,
from time to time, by resolution of the Board of Directors.
8.2 Contracts. The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and deliver any
instrument or document in the name of and on behalf of the Corporation, and such
authority may be general or confined to specific instances.
8.3 Banking. The Corporation shall establish by resolution of the Board of
Directors a depository or depositories for funds of the Corporation, and all
funds not in use shall be deposited therein. Checks, drafts, and other orders
for the payment or withdrawal of money may be signed by the President or
Treasurer of the Corporation, and by such other officers and agents of the
Corporation as may from time to time be established by Board resolution. Loans
may be obtained on behalf of the Corporation only upon the signature of those
officers and agents so authorized by Board resolution.
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8.4 Loans and Guarantees. The Corporation may lend money to or guarantee
the obligation of another party only if the transaction is approved by the Board
and is either:
(a) In the usual and regular course of business; or
(b) With related corporations or organizations in which the
Corporation has a financial interest or business relationship
or to which the Corporation has the power to make donations;
or
(c) Is with an officer or employee of the Corporation and may
reasonably be expected to benefit the Corporation; or
(d) Is approved by the affirmative vote of the holders of two-
thirds (2/3) of the outstanding shares.
A loan or guaranty under this Section may be with or without interest and
secured or unsecured, except as provided in Section 6.7 of these By-Laws.
8.5 Voting Securities. The President, or any other officers or agents of
the Corporation designated by resolution of the Board of Directors, shall have
full power and authority in the name of and on behalf of the Corporation, to
attend, act, and vote at any meeting or proceeding of security holders of other
corporations in which the Corporation holds securities. Such representatives
shall possess and may exercise any and all rights and powers of the Corporation
with respect to such securities.
8.6 Indemnification. The Corporation shall indemnify a person made or
threatened to be made a party to a civil, criminal, administrative, arbitration,
or investigative proceeding by reason of the former or present official capacity
of the person, and shall pay or reimburse such person's expenses in advance of
final disposition of a proceeding, all in accordance with the provisions and
requirements of Minn. Stat. Sec. 302A.521, as amended. The Corporation may, by
Board resolution, reimburse expenses, including attorneys' fees and
disbursements, incurred by a person in connection with a proceeding at a time
when such person is a witness but has not been made or threatened to be made a
party to such proceeding.
8.7 Distributions. The Corporation, by authorizing resolution of the Board
of Directors, shall have full power to make distributions in accordance with the
provisions and requirements of Minn. Stat. Sec. 302A.551, as amended.
ARTICLE 9
AMENDMENTS
9.1 Articles of Incorporation. The Articles of Incorporation of the
Corporation may be amended at any time to include or modify any provision that
is required or permitted to appear in articles by law, or to omit any provision
not required to be included in articles by law. After the issuance of shares,
the Articles may be amended as follows:
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(a) Submission to Shareholders. A resolution approved by the Board
of Directors, or proposed by a shareholder or shareholders
holding three percent (3%) or more of the voting power of the
shares entitled to vote, that sets forth the proposed
amendment, shall be submitted to a vote at a meeting of
shareholders. The written notice of the meeting of
shareholders at which the amendment will be considered must
set forth the substance of the proposed amendment.
(b) Approval. The proposed amendment is adopted when approved by
the affirmative vote of the holders of a majority of the
voting power of the shares present at the meeting and
entitled to vote, except that if the proposed amendment would
require a larger majority, or if it would reduce an applicable
larger majority, for approving shareholder action, the
amendment must receive the larger of the majority required for
passage prior to, or which would be required after, the
enactment of the proposed amendment.
9.2 By-Laws. The By-Laws of the Corporation may be amended at any time to
contain any provision relating to the management of the business or the
regulation of the affairs of the Corporation not inconsistent with law or the
Articles of Incorporation. After the adoption of the initial By-Laws, By-Laws
may be adopted, amended, or repealed only by submission to and consideration and
adoption by the shareholders of a resolution, in the same manner and with the
same requirements and limitations as provided in Section 9.1 herein for
amendment of the Articles of Incorporation.
9.3 Limitations. Notwithstanding anything to the contrary contained in
this Section 9, no amendment to the Articles of Incorporation or By-Laws of the
Corporation which has the effect of denying, limiting, or modifying an existing
right to cumulative voting for directors, or which has the effect of denying,
limiting, or modifying existing pre-emptive rights to acquire unissued
securities, shall be adopted if the votes of a proportion of the voting power of
the shares sufficient to elect a director at an election of the entire Board
under cumulative voting are cast against the amendment.
The undersigned, Secretary and sole officer of NORTHERN SUPPLY COMPANY,
INC. hereby certifies that the foregoing sections were adopted as the By-Laws of
the Corporation 9th day of July, 1991.
/s/ Michael C. DeZirik
-----------------------------------
Michael C. DeZirik - Secretary
ATTESTED TO BY CORPORATE OFFICER:
/s/ [ILLEGIBLE]
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