EXHIBIT 3.1(a)
AMENDED AND RESTATED
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.
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 transferrable or nontransferable and separable or
inseparable from other
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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
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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 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 ofdirectors, 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
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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 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 thanby 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 tonominate 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.
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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 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) a 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.
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ARTICLE VIII
SUPERMAJORTY 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 the 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 VIE shall not be
applicable to any particular Business Combination, and such Business Combination
shall require only such affirmative 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 Interested Shareholder
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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.
(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.
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The price determined in accordance with Paragraphs 2.a and 2.b
of Section B of this Article VIII shall be subject to
appropriate adjustment 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,
except 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
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
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the first page thereof, in a prominent place, any statement as
to the advisability (or 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 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
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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 any 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
under standing providing for any one or more of the actions
specified in the foregoing clauses (a) to (f).
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, 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
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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 he 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 of 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.
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
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Corporation or any Subsidiary, and (d) any person who is a director or
officer of such specified person or any 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 a 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 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
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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 VII 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 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 VIE.
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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 advisers, 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 its 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 for 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
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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 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.
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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.
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 right 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
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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 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.
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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 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 Re purchase 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;
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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
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
STATE OF MINNESOTA
DEPARTMENT OF STATE
FILED MAR 23, 1994
Secretary of State
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