EXHIBIT 3.1(b)
AMENDED ARTICLES OF INCORPORATION
OF DYNECO
CORPORATION
The following amendment of the Articles of Incorporation were duly
adopted by the Corporation's shareholders:
ARTICLE I
The name of this Corporation is DynEco Corporation.
ARTICLE II
The registered office of this Corporation is located at 2116 Second
Avenue South, Minneapolis MN 55404, and the registered agent at that address is
Mark J. Vieno.
ARTICLE III
The aggregate number of shares that the Corporation has authority to
issue is 100,000,000. The shares are classified in two classes, consisting of
20,000,000 shares of Preferred Stock of the par value of $.01 per share and
80,000,000 shares of Common Stock of the par value of $.01 per share. The Board
of Directors is authorized to establish one or more series of Preferred Stock,
setting forth the designation of each such series, and fixing the relative
rights and preferences of each such series.
No shareholder of this Corporation shall have any cumulative voting
rights.
No shareholder of this Corporation shall have any preemptive * by
virtue of Minnesota Statutes, ss. 302A.413 (or any similar provisions of future
law) to subs*. for, purchase or acquire any shares of the Corporation of any
class, or any obligations or other securities convertible into or exchangeable
for any such shares, or any rights to purchase any such shares, securities or
obligations.
ARTICLE IV
The business and affairs of the corporation shall be managed by or
under the direction of a Board of Directors consisting of not less than three
nor more than fifteen persons, who need not be shareholders. The number of
directors may be increased by the shareholders or Board of Directors or
decreased by the shareholders from the number of directors on the Board of
Directors immediately prior to the effective date of this Article IV, provided,
however, that any change in the number of directors on the Board of Directors
(including, without limitation, changes at annual meetings of shareholders)
shall be approved by the affirmative vote of not less than seventy-five percent
(75%) of the voting power of all outstanding shares entitled to vote, entitled
to be cast by the holders of all then outstanding voting shares, voting together
as a single class, unless such change shall have been approved by a majority of
the entire Board of Directors. If such change shall not have been so approved,
the number of directors shall remain the same.
-1-
A director shall hold office until the annual meeting for the year in
which the director's term expires and until a successor shall be elected and
qualify, subject, however, to prior death, resignation, retirement,
disqualification or removal from office. Removal of a director from office
(including a director named by the Board of Directors to fill a vacancy or newly
created directorship), with or without cause, shall require the affirmative vote
of not less than a majority of the voting power of all outstanding shares
entitled to vote, voting together as a single class. Any vacancy on the Board of
Directors that results from an increase in the number of directors shall be
filled by a majority of the Board of Directors then in office, and any other
vacancy occurring in the Board of Directors shall be filled by a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director. Any director elected to fill a vacancy not resulting from an increase
in the number of directors shall have the same remaining term as that of such
director's predecessor.
Notwithstanding the foregoing, whenever the holders of any one or more
classes of preferred or preference stock issued by the corporation shall have
the right, voting separately by class or series, to elect directors at an annual
or special meeting of shareholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by or
pursuant to the applicable terms of the certificate of designation or other
instrument creating such class or series of preferred stock, and such directors
so elected shall not be divided into classes pursuant to mis Article IV unless
expressly provided by such terms.
Notwithstanding any other provisions of these Articles of Incorporation
(and 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 percent (75%) of the voting
power of all shares entitled to vote, voting together as a single class, shall
be required to amend or repeal, or adopt any provisions inconsistent with, this
Article IV.
ARTICLE V
Only persons who are nominated in accordance with the procedures set
forth in this Article V shall be eligible for election as Directors. Nominations
of persons for election to the Board of Directors of the corporation may be made
at a meeting of shareholders (a) by or at the direction of the Board of
Directors or (b) by any shareholder of the corporation entitled to vote for the
election of Directors at the meeting who complies with the notice procedures set
forth in this Article V. 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 executive offices of the corporation not less than 50 days nor more
than 90 days prior to the meeting; provided, however, that in the event that
less than 60 days' notice or prior public disclosure of the date of the meeting
is given or made to 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 such public
disclosure was made. Such shareholder's notice shall set forth (a) as to each
person whom the shareholder proposes to nominate for election or re-election as
a Director, all information relating to such person that is required to be
disclosed in solicitations 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
-2-
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 the 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. At
the request of the Board of Directors any person nominated by the Board of
Directors for election as a Director shall furnish to the Secretary of the
corporation that information required to be set forth in a shareholder's notice
of nomination which pertains to the nominee. No person shall be eligible for
election as a Director of the corporation unless nominated in accordance with
the procedures set forth in this Article V. The Chairman of the meeting 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 Article V and, if
he should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
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 of the
corporation who complies with the notice procedures set forth in this Article V.
For business to be properly brought before any regular or special meeting by a
shareholder, the shareholder must have given timely notice thereof in writing to
the Secretary of the corporation. To be timely, a shareholder's notice must be
delivered to or mailed and received at the principal executive offices of the
corporation not less than 50 days nor (except for shareholder proposals subject
to Rule 14a-8(a)(3)(i) of the Securities Exchange Act of 1934, as amended) more
man 96 days prior to the meeting, provided, however, that in the event that less
than 60 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 received not later man the close of business on the 10th day following the
day on which such notice of the date of the regular or special meeting was
mailed or such public disclosure was made. A 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) the name and address, as they appear on the
corporation's books, of the shareholder proposing such business, (c) the class
and number of shares of the corporation which are beneficially owned by the
shareholder and (d) any material interest of the shareholder in such business.
Notwithstanding anything in the corporation's Bylaws to the contrary, no
business shall be conducted at any regular or special meeting except in
accordance with the procedures set forth in this Article V. The Chairman of the
meeting shall, if the facts warrant, determine and declare to the meeting that
business was not properly brought before the meeting in accordance with the
provisions of this Article V and, if he shall so determine and declare to the
meeting, any such business not properly brought before the meeting shall not be
transacted.
Notwithstanding any other provisions of these Articles of Incorporation
(and notwithstanding the fact that a lesser percentage or separate class vote
may be specified by law or elsewhere in these Articles of Incorporation), the
affirmative vote of the holders of not less than seventy-five percent (75%) of
the voting power of all outstanding shares entitled to vote, voting together as
a single class, shall be required to amend or repeal, or adopt any provisions
inconsistent with, this Article V.
-3-
ARTICLE VI
Any action required or permitted to be taken at a meeting of the Board
of Directors of this Corporation not needing approval by the shareholders under
Minnesota Statutes, Chapter 302A, may be taken by written action signed by the
number of directors that would be required to take such action at a meeting OF
THE BOARD OF DIRECTORS AT WHICH all directors are present.
ARTICLE VII
No director of this Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for breach of fiduciary
duty by such director as a director; provided, however, that this Article VII
shall not eliminate or limit the liability of a director to the extent provided
by applicable law (i) for any breach of the director's duty of loyalty to the
Corporation or its shareholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (in) under
Section 302A.559 or 80A.23 of the Minnesota Statutes, (iv) for any transaction
from which the director derived an improper personal benefit or (v) for any act
or omission occurring prior to the effective date of this Article VII. No
amendment to or repeal of this Article VII shall apply to or have any effect on
the liability or alleged liability of any director of the Corporation for or
with respect to any acts or omissions of such director occurring prior to such
amendment or repeal. Expenses incurred in defending a civil or criminal action
or proceeding shall be paid by the Corporation in advance of the final
disposition of such action or proceeding upon receipt of an undertaking of such
director to repay such amount as, and to the extent, required by Minnesota
Statutes, Chapter 302A.
ARTICLE VIII
No officer, employee, member of a committee of the board of directors,
or agent of this Corporation shall be personally liable to the Corporation or
its shareholders for monetary damages for breach of fiduciary duty by such
person acting in such capacity; provided, however, that this Article VIII shall
not eliminate or limit the liability of such person to the extent provided by
applicable law (i) for any breach of such person's duty of loyalty to the
Corporation or its shareholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 302A.559 or 80A.23 of the Minnesota Statutes, (iv) for any transaction
from which such person derived an improper personal benefit or (v) for any act
or omission occurring prior to the effective date of this Article VIII. No
amendment to or repeal of this Article VIII shall apply to or have any effect on
the liability or alleged liability of any such person to the Corporation for or
with respect to any acts or omissions of such person occurring prior to such
amendment or repeal. Expenses incurred in defending a civil or criminal action
or proceeding shall be paid by the Corporation in advance of the final
disposition of such action or proceeding upon receipt of an undertaking of such
officer, employee, member of a committee of the board of directors, or agent to
repay such amount as, and to the extent, required by Minnesota Statutes, Chapter
302A.
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 of Minnesota Statutes as if
I had signed this Amendment under oath.
Dated: October 29, 2001
Mark J. Vieno
Assistant Secretary
-4-