UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging Growth Company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Introductory Note
As previously disclosed, on August 7, 2022, CyberOptics Corporation (“CyberOptics” or the “Company”) entered into that certain Agreement and Plan of Merger (the “Merger Agreement”) with Nordson Corporation (“Parent”) and Meta Merger Company (“Merger Sub”), a wholly owned subsidiary of Parent, providing for the merger of Merger Sub with and into the Company (the “Merger”).
On November 3, 2022 (the “Closing Date”), upon the terms and subject to the conditions set forth in the Merger Agreement and in accordance with the applicable provisions of the internal laws of the State of Minnesota, the Merger was completed. At the effective time of the Merger (the “Effective Time”), the separate corporate existence of Merger Sub ceased, and the Company survived the Merger as a wholly owned subsidiary of Parent.
| Item 2.01. | Completion of Acquisition or Disposition of Assets. |
As described above, at the Effective Time on the Closing Date, Parent completed its previously announced acquisition of the Company. As a result of the Merger, the Company became a wholly owned subsidiary of Parent.
At the Effective Time, each issued and outstanding share of common stock of CyberOptics, no par value per share (“Common Stock”), subject to certain exceptions, was automatically converted into the right to receive $54.00 in cash, without interest (the “Merger Consideration”).
At the Effective Time, each stock option that was vested immediately prior to the Effective Time and each stock option that was unvested immediately prior to the Effective Time (“Unvested Stock Option”) and was held by individuals who are employees of CyberOptics immediately prior to the Effective Time but who will not be employed by the surviving corporation, Parent or any of their respective affiliates immediately following the Merger was cancelled and converted in to the right to receive an amount in cash equal to the (i) aggregate number of shares of the Company’s Common Stock subject to such stock option multiplied by (ii) the excess, if any, of the Merger Consideration over the per share exercise price for such stock option.
At the Effective Time, each Unvested Stock Option that was held by individuals who remain employed by the surviving corporation and its subsidiaries or who become employed by Parent or one of its subsidiaries, in each case, as of the Effective Time, was converted into an option to acquire a number of Parent shares of common stock equal to the product of (i) the number of shares of the Company’s Common Stock subject to the option multiplied by (ii) a fraction, or equity exchange ratio, the numerator of which is the Merger Consideration and the denominator of which is the average of the volume weighted average price of a share of Parent common stock on Nasdaq Stock Market LLC (“Nasdaq”) (as reported by Bloomberg L.P. or such other authoritative source as mutually agreed between Parent and CyberOptics) on each of the five consecutive trading days ending with the second complete trading day immediately prior to the Closing Date, with the number of shares rounded down to the nearest whole share. The exercise price for these converted options equals the exercise price for each share of the Company’s Common Stock subject to CyberOptics option divided by the equity exchange ratio (rounded up to the nearest whole cent). Otherwise, each converted Unvested Stock Option has substantially identical terms and conditions to those applicable to such Unvested Stock Option immediately prior to the Merger.
At the Effective Time, each restricted stock unit of CyberOptics (“Company RSU”) that was outstanding immediately prior to the effective time of the Merger became fully vested and was canceled and converted into the right to receive an amount in cash equal to the Merger Consideration multiplied by the number of shares of the Company’s Common Stock subject to such Company RSU.
At the Effective Time, each outstanding unvested restricted stock award of CyberOptics was canceled in accordance with its terms.
The foregoing description of the Merger Agreement and transactions contemplated thereby is subject to and qualified in its entirety by reference to the Merger Agreement, which is filed as Exhibit 2.1 to this Current Report on Form 8-K, the terms of which are incorporated by reference herein.
| Item 3.01. | Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
On the Closing Date, the Company notified Nasdaq that the Merger had been completed, and requested that Nasdaq suspend trading of the Common Stock on Nasdaq and remove the Common Stock from listing on Nasdaq, in each case, at the close of business on the Closing Date. The Company also requested that Nasdaq file with the SEC a notification of removal from listing on Form 25 to delist the Common Stock from Nasdaq and to deregister the Common Stock under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). On the Closing Date, in accordance with the Company’s request, Nasdaq filed the Form 25 with the SEC.
Following the effectiveness of the Form 25, the Company intends to file with the SEC a certification and notice of termination on Form 15 requesting that the Company’s reporting obligations under Sections 13 and 15(d) of the Exchange Act be terminated with respect to the Common Stock.
The information set forth in the Introductory Note above and in Item 2.01 is incorporated by reference into this Item 3.01.
| Item 3.03. | Material Modification to Rights of Security Holders. |
The information set forth in the Introductory Note above and in Item 2.01 and Item 3.01 is incorporated by reference into this Item 3.03.
| Item 5.01. | Changes in Control of Registrant. |
The information set forth in the Introductory Note above and in Item 2.01 and Item 5.02 is incorporated by reference into this Item 5.01.
| Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Directors
Pursuant to the Merger Agreement, effective at the Effective Time, each of Subodh Kulkarni, Craig Gates, Vivek Mohindra, Cheryl Beranek and Cordell Hardy ceased to be directors of the Company. Additionally, effective as of the Effective Time, Jennifer McDonough and Joseph Kelley became the sole directors of the Company.
Executive Officers
Pursuant to the Merger Agreement, effective at the Effective Time, each of Subodh Kulkarni – President and Chief Executive Officer and Jeffrey A. Bertelsen - Vice President, Chief Financial Officer and Chief Operating Officer ceased to be executive officers of the Company. Following the Effective Time, the officers of the Company are as follows: Joseph Kelley, Chief Executive Officer and Chief Financial Officer, and Jennifer McDonough, Secretary.
| Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
Certificate of Incorporation
At the Effective Time, the Articles of Incorporation of the Company were amended and restated as set forth in the Articles of Incorporation that are filed as Exhibit 3.1 hereto and are incorporated herein by reference.
Bylaws
Immediately after the Effective Time, the Bylaws of the Company were amended and restated as set forth in the Bylaws that are filed as Exhibit 3.2 hereto and are incorporated herein by reference.
| Item 5.07. | Submission of Matters to a Vote of Security Holders. |
On November 2, 2022, the Company held a special meeting (the “Special Meeting”) of its shareholders to approve the Merger Agreement and the transactions to be consummated thereby. As of the September 16, 2022 record date for the Special Meeting, there were 7,426,209 shares of common stock issued and outstanding and 4,786,994 shares were represented at the Special Meeting.
Each of the proposals presented were approved by the shareholders entitled to vote at the Special Meeting. As a result of shareholder approval of the proposal to approve the Merger Agreement (Proposal 1), the Company did not utilize the discretionary authority granted by shareholder approval of the proposal to approve the adjournment of the Special Meeting (Proposal 3).
1. The proposal to adopt the Merger Agreement was approved based on the following votes:
| For | 4,759,725 | |||
| Against | 24,583 | |||
| Abstentions | 2,676 | |||
| Broker non-votes | 0 |
2. The proposal to approve, on a non-binding, advisory basis, the compensation that will or may become payable by the Company to its named executive officers in connection with the Merger was approved based on the following votes:
| For | 3,955,587 | |||
| Against | 601,546 | |||
| Abstentions | 229,851 | |||
| Broker non-votes | 0 |
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
| Exhibit No. | Description of Exhibit | |
| 2.1 | Agreement and Plan of Merger, dated August 7, 2022, among CyberOptics Corporation, Nordson Corporation and Meta Merger Company (incorporated by reference to Exhibit 2.1 to the current report on Form 8-K dated August 8, 2022). | |
| 3.1 | Amended and Restated Articles of Incorporation of CyberOptics Corporation. | |
| 3.2 | Amended and Restated Bylaws of CyberOptics Corporation. | |
| 104 | Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document | |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| CyberOptics Corporation | |
| /s/ Jennifer L. McDonough | |
| Name: Jennifer L. McDonough | |
| Title: Secretary |
Dated: November 3, 2022
Exhibit 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
CYBEROPTICS CORPORATION
I, the undersigned, do hereby certify that, the amendment and restatement of the Articles of Incorporation of CyberOptics Corporation (this “Corporation”) were duly adopted pursuant to 302A of the Minnesota Business Corporation Act (the “MBCA”). These Amended and Restated Articles of Incorporation of this Corporation incorporated under the MBCA, supersede and take the place of the existing Articles of Incorporation and all prior amendments thereto:
ARTICLE I – NAME
The name of this Corporation is CyberOptics Corporation.
ARTICLE II – REGISTERED OFFICE
The address of the registered office of the Corporation is 1010 Dale St N, St Paul, MN 55117. The name of the registered agent is C T Corporation System Inc.
ARTICLE III – AUTHORIZED SHARES
This Corporation is authorized to issue an aggregate total of 100 shares, all of which shall be designated Common Stock, having a par value of $0.01 per share.
ARTICLE IV – NO CUMULATIVE VOTING
No shareholder of this Corporation shall have any cumulative voting rights.
ARTICLE V – PREEMPTIVE RIGHTS
No shareholder of this Corporation shall have any preemptive rights by virtue of Section 302A.413 of the MBCA (or similar provisions of future law) to subscribe for, purchase, or acquire any shares of this Corporation of any class, whether unissued or now or hereafter authorized, or any obligations or other securities convertible into or exchangeable for any such shares.
ARTICLE VI – WRITTEN ACTIONS BY DIRECTORS
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 the MBCA, Chapter 302A, may be taken by written action signed, or consented to by authenticated electronic communication, 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 were present.
ARTICLE VII – LIMITATION OF LIABILITY
A director of this Corporation shall not be personally liable to this Corporation or its shareholder for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to this 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 Sections 302A.559 of the MBCA; or (iv) for any transaction from which the director derived an improper personal benefit.
Any repeal or modification of the foregoing provisions of this Article VII by the shareholders of this Corporation shall not adversely affect any rights or protection of a director of this Corporation existing at any time of such repeal or modification.
Exhibit 3.2
CYBEROPTICS CORPORATION
AMENDED AND RESTATED BYLAWS
DATED: NOVEMBER 3, 2022
Table of Contents
Page
| ARTICLE I | MEETINGS OF SHAREHOLDERS | 1 |
| Section 1. | Time and Place of Meetings | 1 |
| Section 2. | Annual Meeting | 1 |
| Section 3. | Special Meetings | 1 |
| Section 4. | Notice of Meetings | 1 |
| Section 5. | Quorum | 2 |
| Section 6. | Voting | 2 |
| ARTICLE II | DIRECTORS | 3 |
| Section 1. | Powers | 3 |
| Section 2. | Number and Term of Office | 3 |
| Section 3. | Vacancies and New Directorships | 4 |
| Section 4. | Regular Meetings | 4 |
| Section 5. | Special Meetings | 4 |
| Section 6. | Quorum | 4 |
| Section 7. | Written Action | 4 |
| Section 8. | Participation in Meetings by Conference Telephone | 5 |
| Section 9. | Committees | 5 |
| Section 10. | Compensation | 5 |
| Section 11. | Rules | 6 |
| ARTICLE III | NOTICES | 6 |
| Section 1. | Generally | 6 |
| Section 2. | Waivers | 6 |
| ARTICLE IV | OFFICERS | 7 |
| Section 1. | Generally | 7 |
| Section 2. | Compensation | 7 |
| Section 3. | Succession | 7 |
| Section 4. | Authority and Duties | 7 |
| Section 5. | Execution of Documents and Action with Respect to Securities of Other Corporations | 8 |
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Table of Contents
(continued)
Page
| ARTICLE V | STOCK | 8 |
| Section 1. | Certificates | 8 |
| Section 2. | Transfer | 8 |
| Section 3. | Lost, Stolen or Destroyed Certificates | 9 |
| Section 4. | Record Date | 9 |
| ARTICLE VI | GENERAL PROVISIONS | 10 |
| Section 1. | Fiscal Year | 10 |
| Section 2. | Corporate Seal | 10 |
| Section 3. | Reliance upon Books, Reports and Records | 11 |
| Section 4. | Time Periods | 11 |
| Section 5. | Dividends | 11 |
| ARTICLE VII | AMENDMENTS | 11 |
| Section 1. | Amendments | 11 |
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BYLAWS
ARTICLE I
MEETINGS
OF SHAREHOLDERS
Section 1. Time and Place of Meetings. All meetings of the shareholders for the election of directors or for any other purpose shall be held at such time and place, within or without the State of Minnesota, as may be designated by the Board of Directors of the Corporation (the “Board of Directors”), or by the Chairman of the Board of Directors, the Chief Executive Officer, Chief Financial Officer, a Vice President or the Secretary in the absence of a designation by the Board of Directors, and stated in the notice of the meeting or in a duly executed waiver of notice thereof. Shareholders may participate in an annual or special meeting of the shareholders by use of any means of communication by which all shareholders participating may simultaneously hear each other during the meeting. A shareholder’s participation in a meeting by any such means of communication constitutes presence in person at the meeting.
Section 2. Annual Meeting. An annual meeting of the shareholders shall be held at such date and time as shall be designated from time to time by the Board of Directors, at which meeting the shareholders shall elect by a plurality vote the directors to succeed those whose terms expire and shall transact such other business as may properly be brought before the meeting.
Section 3. Special Meetings. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by law or by the Articles of Incorporation of the Corporation (the “Articles of Incorporation”), may be called by the Board of Directors, the Chairman of the Board of Directors, the Chief Executive Officer, Chief Financial Officer or a Vice President.
Section 4. Notice of Meetings. Notice of every meeting of the shareholders, stating the place, if any, date and hour of the meeting, the means of remote communication, if any, and, in the case of a special meeting, the purpose or purposes for which the meeting is called, and delivered in accordance with Section 1 of Article III hereof, shall be given not less than 10 nor more than 60 days before the date of the meeting to each shareholder entitled to vote at such meeting, except as otherwise provided herein or by law. When a meeting is adjourned to another place, date or time, written notice need not be given of the adjourned meeting if the place, date and time thereof and the means of remote communication, if any, are announced at the meeting at which the adjournment is taken; provided, however, that if the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, written notice of the place, date and time of the adjourned meeting shall be given in conformity herewith. At any adjourned meeting, any business may be transacted which might have been transacted at the original meeting.
Section 5. Quorum. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of business except as otherwise provided by law or by the Articles of Incorporation. If, however, such quorum shall not be present or represented at any meeting of the shareholders, the shareholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented.
Section 6. Voting. Except as otherwise provided by law or by the Articles of Incorporation, each shareholder shall be entitled at every meeting of the shareholders to one vote for each share of stock having voting power standing in the name of such shareholder on the books of the Corporation on the record date for the meeting and such votes may be cast either in person or by written proxy. Every proxy must be duly executed and filed with the Secretary of the Corporation. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or another duly executed proxy bearing a later date with the Secretary of the Corporation. The vote upon any question brought before a meeting of the shareholders may be by voice vote, unless the holders of a majority of the outstanding shares of all classes of stock entitled to vote thereon present in person or by proxy at such meeting shall so determine. When a quorum is present at any meeting, the vote of the holders of a majority of the stock that has voting power present in person or represented by proxy shall decide any question properly brought before such meeting, unless the question is one upon which by express provision of law, the Articles of Incorporation or these bylaws, a different vote is required, in which case such express provision shall govern and control the decision of such question.
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ARTICLE II
DIRECTORS
Section 1. Powers. The business and affairs of the Corporation shall be managed by or under the direction of its Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law or by the Articles of Incorporation directed or required to be exercised or done by the shareholders.
Section 2. Number and Term of Office. Except as otherwise required by any shareholders agreement by and among the Corporation and its shareholders, (a) the Board of Directors shall consist of one or more members and (b) the number of directors shall be fixed by resolution from time to time of the Board of Directors or by the shareholders at the annual meeting or a special meeting. The directors shall be elected at the annual meeting of the shareholders, except as provided in Section 3 of this Article, and each director elected shall hold office until such director’s successor is elected and qualified or until such director’s earlier resignation or removal, in each case except as required by law. Except as otherwise required by any shareholders agreement by and among the Corporation and its shareholders, the Board of Directors may, at its discretion, elect a Chairman of the Board of Directors from the directors currently in office by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the Chairman so elected shall hold office until the next annual meeting of the shareholders and until his/her successor is elected and qualified, except as required by law. Any decrease in the authorized number of directors shall not be effective until the expiration of the term of the directors then in office, unless, at the time of such decrease, there shall be vacancies on the Board of Directors which are being eliminated by such decrease.
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Section 3. Vacancies and New Directorships. Except as otherwise required by any shareholders agreement by and among the Corporation and its shareholders, vacancies and newly created directorships resulting from any increase in the authorized number of directors which occur between annual meetings of the shareholders may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so elected shall hold office until the next annual meeting of the shareholders and until their successors are elected and qualified, except as required by law.
Section 4. Regular Meetings. Regular meetings of the Board of Directors may be held without notice immediately after the annual meeting of the shareholders and at such other time and place as shall from time to time be determined by the Board of Directors.
Section 5. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, the Chief Executive Officer, Chief Financial Officeror a Vice President on one day’s notice to each director by whom such notice is not waived, given in accordance with Section 1 of Article III hereof, and shall be called by the Chief Executive Officer, Chief Financial Officer, a Vice President or the Secretary in like manner and on like notice on the written request of any director.
Section 6. Quorum. At all meetings of the Board of Directors, a majority of the total number of directors then in office shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time to another place, time or date, without notice other than announcement at the meeting, until a quorum shall be present.
Section 7. Written Action. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all members of the Board of Directors or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or committee.
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Section 8. Participation in Meetings by Conference Telephone. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or a meeting of any such committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
Section 9. Committees. Except as otherwise required by any shareholders agreement by and among the Corporation and its shareholders, the Board of Directors may, by resolution passed by a majority of the whole Board of Directors, designate one or more committees, each committee to consist of one or more of the directors of the Corporation and each to have such lawfully delegable powers and duties as the Board of Directors may confer and each such committee shall serve at the pleasure of the Board of Directors. Except as otherwise required by any shareholders agreement by and among the Corporation and its shareholders, the Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Except as otherwise provided by law, any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it. Any committee or committees so designated by the Board of Directors shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. Unless otherwise prescribed by the Board of Directors, a majority of the members of the committee shall constitute a quorum for the transaction of business, and the act of a majority of the members present at a meeting at which there is a quorum shall be the act of such committee. Each committee shall prescribe its own rules for calling and holding meetings and its method of procedure, subject to any rules prescribed by the Board of Directors, and shall keep a written record of all actions taken by it.
Section 10. Compensation. The Board of Directors may establish such compensation for, and reimbursement of the expenses of, directors for attendance at meetings of the Board of Directors or committees, or for other services by directors to the Corporation, as the Board of Directors may determine.
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Section 11. Rules. The Board of Directors may adopt such special rules and regulations for the conduct of their meetings and the management of the affairs of the Corporation as they may deem proper, not inconsistent with law or these bylaws.
ARTICLE III
NOTICES
Section 1. Generally. Whenever by law or under the provisions of the Articles of Incorporation or these bylaws, notice is required to be given to any director or shareholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or shareholder, at such director’s or shareholder’s address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Except as otherwise required or prohibited by law, notice to directors and shareholders may also be given by facsimile, by telephone, electronic mail, posting on an electronic network together with separate notice to the director or shareholder of such specific posting (which notice shall be deemed given upon the later of such posting and the giving of such separate notice), or by any other form of electronic transmission consented to by the shareholder or director to whom the notice is given. Except as otherwise stated therein, notice pursuant to the preceding sentence will be deemed to be given at the time when the same is sent.
Section 2. Waivers. Whenever any notice is required to be given by law or under the provisions of the Articles of Incorporation or these bylaws, a waiver thereof in writing, signed by the person or persons entitled to such notice, or a waiver by electronic transmission by the person entitled to such notice, in each case, whether before or after the time of the event for which notice is to be given, shall be deemed equivalent to such notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.
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ARTICLE IV
OFFICERS
Section 1. Generally. The officers of the Corporation shall be elected by the Board of Directors and shall consist of a Chief Executive Officer and Chief Financial Officer. The Board of Directors may also elect such other officers, as the Board of Directors deems desirable, including, without limitation, the election of a Treasurer, Secretary and any number of Vice Presidents. Any number of offices may be held by the same person.
Section 2. Compensation. The compensation of all officers and agents of the Corporation who are also directors of the Corporation shall be fixed by the Board of Directors. The Board of Directors may delegate the power to fix the compensation of other officers and agents of the Corporation to an officer of the Corporation.
Section 3. Succession. The officers of the Corporation shall hold office until their successors are elected and qualified or until such officer’s earlier resignation or removal. Any officer elected or appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the directors. Any vacancy occurring in any office of the Corporation may be filled by the Board of Directors.
Section 4. Authority and Duties. Each of the officers of the Corporation shall have such authority and shall perform such duties as are customarily incident to their respective offices, or as may be specified from time to time by the Board of Directors in a resolution which is not inconsistent with these bylaws.
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Section 5. Execution of Documents and Action with Respect to Securities of Other Corporations. The Secretary shall have and is hereby given, full power and authority, except as otherwise required by law or directed by the Board of Directors, (a) to execute, on behalf of the Corporation, all duly authorized contracts, agreements, deeds, conveyances or other obligations of the Corporation, applications, consents, proxies and other powers of attorney, and other documents and instruments and (b) to vote and otherwise act on behalf of the Corporation, in person or by proxy, at any meeting of shareholders, members, partners or other equity holders (or with respect to any action of such shareholders, members, partners or other equity holders) of any other corporation, limited liability company, partnership or other entity in which the Corporation may hold securities and otherwise to exercise any and all rights and powers which the Corporation may possess by reason of its ownership of securities. In addition, the Secretary may delegate to other officers, employees and agents of the Corporation the power and authority to take any action which the Secretary is authorized to take under this Section 5, with such limitations as the Secretary may specify; such authority so delegated by the Secretary shall not be re-delegated by the person to whom such execution authority has been delegated.
ARTICLE V
STOCK
Section 1. Certificates. If issued, certificates representing shares of stock of the Corporation shall be in such form as shall be determined by the Board of Directors, subject to applicable legal requirements. Such certificates shall be numbered and their issuance recorded in the books of the Corporation, and each such certificate shall exhibit the holder’s name and the number of shares and shall be signed by, or in the name of the Corporation by the Chairman or Vice-Chairman of the Board of Directors or the Chief Executive Officer, Chief Financial Officer or a Vice-President and the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer of the Corporation. Any or all of the signatures upon such certificates may be facsimiles, engraved or printed.
Section 2. Transfer. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue, or to cause its transfer agent to issue, a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.
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Section 3. Lost, Stolen or Destroyed Certificates. The Secretary may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed upon the making of an affidavit of that fact, satisfactory to the Secretary, by the person claiming the certificate of stock to be lost, stolen or destroyed. As a condition precedent to the issuance of a new certificate or certificates, the Secretary may require the owner of such lost, stolen or destroyed certificate or certificates, or such owner’s legal representative, to give the Corporation a bond in such sum and with such surety or sureties as the Secretary may direct as indemnity against any claims that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed or the issuance of the new certificate.
Section 4. Record Date.
(a) In order that the Corporation is able to determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day preceding the day on which notice is given, or, if notice is waived, at the close of business on the day preceding the day on which the meeting is held. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the shareholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than 10 days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining shareholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in Minnesota, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of shareholders are recorded. Delivery made to a Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by law, the record date for determining shareholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.
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(c) In order that the Corporation may determine the shareholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the shareholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining shareholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be fixed from time to time by the Board of Directors.
Section 2. Corporate Seal. The Board of Directors may adopt a corporate seal and use the same by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
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Section 3. Reliance upon Books, Reports and Records. Each director, each member of a committee designated by the Board of Directors and each officer of the Corporation will, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of the Corporation’s officers or employees, or committees of the Board of Directors, or by any other person as to matters the director, committee member or officer reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation.
Section 4. Time Periods. In applying any provision of these bylaws which requires that an act be done or not be done a specified number of days prior to an event or that an act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded and the day of the event shall be included.
Section 5. Dividends. The Board of Directors may from time to time declare and the Corporation may pay dividends upon its outstanding shares of capital stock, in the manner and upon the terms and conditions provided by law and the Articles of Incorporation.
ARTICLE VII
AMENDMENTS
Section 1. Amendments. These bylaws may be altered, amended or repealed, or new bylaws may be adopted, by the shareholders or by the Board of Directors.
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