Exhibit 3.2(a)
AMENDED AND RESTATED
BYLAWS
OF
RURAL CELLULAR CORPORATION
TABLE OF CONTENTS
Page
ARTICLE I. OFFICES, CORPORATE SEAL AND
SHAREHOLDER CONTROL AGREEMENT...............................23
1.01 Registered and Other Offices................................23
1.02 Corporate Seal..............................................23
1.03 Shareholder Control Agreement...............................23
ARTICLE II. MEETINGS OF SHAREHOLDERS....................................23
2.01 Regular Meetings............................................23
2.02 Special Meetings............................................23
2.03 Time and Place of Meetings..................................24
2.04 Voting Rights...............................................24
2.05 Notice of Meetings..........................................24
2.06 Waiver of Notice............................................24
2.07 Quorum......................................................25
2.08 Record Date.................................................25
2.09. Action Without a Meeting....................................25
2.10 Proxies.....................................................25
2.11 Action by the Shareholders..................................25
2.12 Business Proposed by Shareholders...........................25
ARTICLE III. DIRECTORS...................................................26
3.01 General Purposes............................................26
3.02. Number and Terms of Directors...............................26
3.03. Nominations and Qualifications..............................26
3.04. Board Meetings; Time, Place and Notice......................27
3.05. Waiver of Notice............................................27
3.06. Quorum......................................................27
3.07. Absent Directors............................................27
3.08. Action Without a Meeting....................................27
3.09. Action by the Board.........................................27
3.10. Electronic Communications...................................28
3.11. Committees..................................................28
3.12. Presumption of Assent.......................................28
3.13. Resignation.................................................28
3.14. Removal.....................................................28
3.15. Vacancies...................................................28
3.16. Compensation of Directors...................................28
21
3.17. Chairman of the Board.......................................28
ARTICLE IV. OFFICERS....................................................29
4.01. Required Officers...........................................29
4.02. Other Officers..............................................29
4.03. Election and Term of Office.................................29
4.04. Chief Executive Officer.....................................29
4.05. Chief Financial Officer.....................................30
4.06. Multiple Offices............................................30
4.07. Officers Deemed Elected.....................................30
4.08. Contract Rights.............................................30
4.09. Delegation of Authority.....................................30
4.10. Reimbursement by Officers...................................30
4.11. Compensation of Officers....................................31
4.12. Resignation.................................................31
4.13. Removal.....................................................31
4.14. Vacancy.....................................................31
ARTICLE V. SHARES AND THEIR TRANSFER...................................31
5.01. Certificates for Shares.....................................31
5.02. Transfer of Shares..........................................31
5.03. Lost Certificates...........................................31
5.04. Fractional Shares...........................................32
5.05. Facsimile Signature.........................................32
5.06. Transfer Agent and Registrar................................32
5.07. Conversion of Class B Common Stock..........................32
ARTICLE VI. CORPORATE BOOKS AND RECORDS.................................33
6.01. Share Register..............................................33
6.02. Other Required Documents....................................33
6.03. Financial Statements........................................33
6.04. Right to Inspect............................................33
ARTICLE VII. NOTICE......................................................34
7.01. Notice......................................................34
ARTICLE VIII.INDEMNIFICATION.............................................34
8.01. Indemnification.............................................34
ARTICLE IX. AMENDMENT OF BYLAWS.........................................34
9.01. Amendment of Bylaws.........................................34
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BYLAWS
OF
RURAL CELLULAR CORPORATION
ARTICLE I.
OFFICES, CORPORATE SEAL
AND SHAREHOLDER CONTROL AGREEMENT
Section 1.01. Registered and Other Offices. The registered office of the
corporation in the State of Minnesota shall be that set forth in the
Articles of Incorporation or in the most recent amendment of the Articles
of Incorporation or statement of the Board of Directors filed with the
Minnesota Secretary of State changing the registered office in the manner
prescribed by law. The corporation may have such other offices, including
its principal place of business or its principal executive office, either
within or without the State of Minnesota, as the Board of Directors may
designate or as the business of the corporation may require from time to
time.
Section 1.02. Corporate Seal. If so directed by the Board of Directors, the
corporation may use a corporate seal. The failure to use such seal,
however, shall not affect the validity, recordability or enforceability of
any document executed on behalf of the corporation or any act. The seal
need only include the word "seal," but it may also include, at the
discretion of the Board of Directors, such additional wording as is
permitted by law.
Section 1.03. Shareholder Control Agreement. In the event of any conflict
or inconsistency between these Bylaws, or any amendment thereto, and any
shareholder control agreement, whenever adopted, such shareholder control
agreement shall govern. A copy of any such shareholder control agreement
shall be filed with the corporation at its principal executive office.
ARTICLE II.
MEETINGS OF SHAREHOLDERS
Section 2.01. Regular Meetings. Regular meetings of the shareholders of the
corporation shall be called by the Chief Executive Officer or the Board of
Directors. Regular meetings of the shareholders may be held no more
frequently than once per year and may be held on any other less frequent
periodic basis. Regular meetings of the shareholders need not be held,
except that if a regular meeting of the shareholders has not been held
during the immediately preceding fifteen (15) months, a shareholder or
shareholders holding three percent (3%) or more of the voting power of all
shares of this corporation entitled to vote may demand that a regular
meeting of the shareholders be held by giving written notice to the Chief
Executive Officer or the Chief Financial Officer of the corporation. Within
thirty (30) days after receipt of the demand by the Chief Executive Officer
or Chief Financial Officer, the Board of Directors shall cause a regular
meeting of the shareholders to be called and held on notice no later than
ninety (90) days after receipt of the demand, all at the expense of the
corporation. If the Board of Directors fails to cause a regular meeting of
the shareholders to be called and held as required by this section of the
Bylaws, the shareholder or shareholders making the demand may call the
regular meeting by giving notice as required by Section 2.05 of these
Bylaws, all at the expense of the corporation. At each regular meeting of
the shareholders there shall be an election of qualified successors for
directors who serve for an indefinite term or whose terms have expired or
are due to expire within six (6) months after the date of the meeting. No
other particular business is required to be transacted at a regular
meeting. Any business appropriate for action by the shareholders may be
transacted at a regular meeting. No meeting shall be considered a regular
meeting unless specifically designated as such in the notice of meeting or
unless all of the shareholders are present in person or by proxy and none
of them objects to such designation.
Section 2.02. Special Meetings. Special meetings of the shareholders of the
corporation may be called for any purpose or purposes at any time by the
Chief Executive Officer, the Chief Financial Officer or by two or more
directors. In addition, except as provided by the Minnesota Business
Corporation Act with respect to a "business combination," a shareholder or
shareholders holding ten percent (10%) or more of the voting power of all
shares of the corporation entitled to vote may demand that a special
meeting of the shareholders be held by giving written notice containing the
purpose or purposes of the meeting to the Chief Executive Officer or Chief
Financial Officer of the corporation. Within thirty (30) days after receipt
of the demand by such officer, the Board of Directors shall cause a special
meeting of shareholders to be called and held on notice no later than
ninety (90) days after receipt of the demand, all at the expense of the
corporation. If the Board of Directors fails to cause a special meeting of
the shareholders to be called and held as required by this Section of the
Bylaws, the shareholder or shareholders making the demand may call the
meeting by giving notice as required by Section 2.05 of these Bylaws, all
at the expense of the corporation.
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Section 2.03. Time and Place of Meetings. Regular or special meetings of
the shareholders of the corporation, if any, shall be held on the day or
date and at the time and place fixed by the Chief Executive Officer or the
Board of Directors, except that a regular or special meeting called by, or
at the demand of, a shareholder or shareholders pursuant to Sections 2.01
or 2.02 of these Bylaws shall be held in the county where the principal
executive office of the corporation is located.
Section 2.04. Voting Rights. At each meeting of the shareholders of the
corporation, every shareholder having the right to vote shall be entitled
to vote either in person or by proxy. Unless otherwise provided by the
Articles of Incorporation or a resolution of the Board of Directors filed
with the Secretary of State pursuant to Minn. Stat. 302A.401, each
shareholder shall have one (1) vote for each voting share of Class A stock
and ten (10) votes for each voting share of Class B stock held of record by
that shareholder. Upon demand of any shareholder, the vote upon any
question before the meeting shall be by ballot. Voting shares owned by two
or more shareholders may be voted by any one of them unless the corporation
receives written notice from any one of them denying the authority of that
person to vote those shares. Unless the corporation receives such a written
notice from a joint owner, a holder of voting shares may vote any portion
of the shares in any way the shareholder chooses. If a shareholder votes
without designating the proportion or number of shares voted in a
particular way, the shareholder shall be deemed to have voted all of the
shares in that way. The Board of Directors may, by a resolution approved by
the affirmative vote of a majority of the directors present, establish a
procedure whereby a shareholder may certify in writing to the corporation
that all or a portion of the shares registered in the name of the
shareholder are held for the account of one or more beneficial owners. Upon
receipt by the corporation of the writing, the persons specified as
beneficial owners, rather than the actual shareholder, shall be deemed the
shareholders for the purpose specified in the writing. There shall be no
cumulative voting.
Section 2.05. Notice of Meetings. Notice of all meetings of shareholders
shall be given to every holder of voting shares of record, except where the
meeting is an adjourned meeting and the day or date, time and place of the
meeting were announced at the time of adjournment. The notice shall be
given at least ten (10), but not more than sixty (60), days before the date
of the meeting, except that written notice of a meeting at which a plan of
merger or exchange is to be considered shall be given to all shareholders,
whether entitled to vote or not, at least fourteen (14) days prior thereto.
The notice of any regular or special meeting of shareholders shall contain
the day or date, time and place of the meeting and any other information
deemed necessary or desirable by the person or persons calling the meeting.
Every notice of any special meeting shall state the purpose or purposes for
which the meeting has been called, and the business transacted at all
special meetings shall be confined to the purpose or purposes stated in the
notice, unless all of the shareholders of the corporation are present in
person or by proxy and none of them objects to consideration of a
particular item of business. In the event the purpose of the meeting is to
consider a plan of merger or exchange, a copy or short description of the
plan of merger or exchange shall be included in or enclosed with the
notice.
Section 2.06. Waiver of Notice. A shareholder may waive notice of any
meeting of shareholders. A waiver of notice by a shareholder entitled to
notice is effective whether given before, at or after the meeting and
whether given in writing, orally or by attendance. Attendance by a
shareholder at a meeting is a waiver of notice of that meeting, except
where the shareholder objects at the beginning of the meeting to the
transaction of business because the meeting is not lawfully called or
convened, or objects before a vote on an item of business because the item
may not lawfully be considered at that meeting and does not participate in
the consideration of the item at that meeting.
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Section 2.07. Quorum. The holders of a majority of the voting power of the
shares outstanding and entitled to vote at a meeting of the shareholders,
present either in person or by proxy, shall constitute a quorum for the
transaction of business at that meeting. If a quorum is present when a duly
called or held meeting is convened, the shareholders present at such
meeting may continue to transact business until adjournment, even though
the withdrawal of one or more shareholders originally present leaves less
than the proportion or number otherwise required for a quorum. In the event
a quorum is not attained for a meeting, those shareholders present in
person or by proxy shall have the power to adjourn the meeting from time to
time, to such day or date and time and place as they shall, by majority
vote, agree upon. Any business may be transacted at such reconvened meeting
which might have been transacted at the meeting which was adjourned. If a
quorum is present in person or by proxy when a duly called or held meeting
is convened, the meeting may be adjourned from time to time without notice,
other than announcement at the meeting.
Section 2.08. Record Date. The Board of Directors may fix, in the
resolution calling for a regular or special meeting of the shareholders, a
date not more than sixty (60) days before the day of the meeting of the
shareholders as the record date for the determination of the shareholders
entitled to notice of and to vote at the meeting, notwithstanding any
transfer of shares on the books of the corporation after any record date so
fixed. When a record date is so fixed, only shareholders on that date are
entitled to receive notice of and to vote at that meeting of shareholders
and any adjournment thereof. The Board of Directors may close the books of
the corporation against the transfer during the whole or any part of such
period. If the Board of Directors fails to fix a record date for the
determination of the shareholders entitled to notice of and to vote at any
meeting of the shareholders, the record date shall be the twentieth (20th)
day preceding the date of such meeting.
Section 2.09. Action Without a Meeting. Any action required or permitted to
be taken at a meeting of the shareholders may be taken without a meeting or
notice thereof by written action signed by all of the shareholders entitled
to vote on that action. The written action is effective on the date on
which the last signature is placed on such writing, unless a different
effective time is provided in the written action. Such written action may
be taken by counterparts.
Section 2.10. Proxies. At all meetings of shareholders, a shareholder may
cast or authorize the casting of a vote by filing a written appointment of
a proxy with an officer of the corporation at or before the meeting at
which the appointment is to be effective. An appointment of a proxy for
shares held jointly by two or more shareholders is valid if signed by any
one of them, unless the corporation receives from any one of those
shareholders written notice either denying the authority of that person to
appoint a proxy or appointing a different proxy. The appointment of a proxy
is valid for eleven (11) months, unless a longer period is expressly
provided in the appointment. No appointment is irrevocable unless the
appointment is coupled with an interest in the shares or in the
corporation. An appointment may be terminated at will, unless the
appointment is coupled with an interest, in which case it shall not be
terminated except in accordance with the terms of an agreement, if any,
between the parties to the appointment. Termination may be made by filing
written notice of the termination of the appointment with an officer of the
corporation, or by filing a new written appointment of a proxy with an
officer of the corporation. Termination in either manner revokes all prior
proxy appointments and is effective when filed with an officer of the
corporation.
Section 2.11. Action by the Shareholders. At any duly called or held
meeting of the shareholders at which a quorum is present, the shareholders
shall take action by the affirmative vote of the holders of a majority of
the voting power of the shares entitled to vote who are present in person
or by proxy, except where a larger proportion or number is required by the
Articles of Incorporation or by applicable law. In any case where a class
or series of shares is entitled by the Minnesota Business Corporations Act,
the Articles of Incorporation, or the terms of the shares to vote as a
class or series, the matter being voted upon must also receive the
affirmative vote of the holders of a majority of the voting power of the
shares of that class or series who are present in person or by proxy,
except where a larger proportion or number is required by the Articles of
Incorporation or applicable law.
Section 2.12. Business Proposed by Shareholders. At any regular or special
meeting of the shareholders, only such business shall be conducted as shall
have been brought before the meeting (a)
25
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 Section 2.12. 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
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 than 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 these 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 Section 2.12. The chairperson of the meeting shall, if the
facts warrant, determine that business was not properly brought before the
meeting in accordance with the provisions of this Section 2.12 and, if he
should so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
ARTICLE III.
DIRECTORS
Section 3.01. General Purposes. Except as authorized by the shareholders
pursuant to a shareholder control agreement or unanimous affirmative vote
of the holders of all of the shares entitled to vote for the election of
the directors of the corporation, the business and affairs of the
corporation shall be managed by or under the direction of the Board of
Directors.
Section 3.02. Number and Terms of Directors. The directors shall be divided
into three (3) classes, designated Class I, Class II, and Class III, and
each class shall be as nearly equal in number as possible. Each class shall
be elected to three-year terms. with one class to be elected each year. At
each regular meeting of the shareholders, directors shall be elected for a
full term of three years to succeed those whose terms expire. When the
number of directors is changed, any increase or decrease in directorships
shall be so apportioned among the classes as to make all classes as nearly
equal in number as possible, and any additional director of any class
elected to fill a vacancy resulting from an increase in such class shall
hold office for a term that shall coincide with the remaining term of that
class. In no case will a decrease in the number of directors shorten the
term of any incumbent director. A director shall hold office until the
regular 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.
Section 3.03. Nominations and Qualifications. Only persons who are
nominated in accordance with the procedures set forth in this Section 3.03
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 3.03. 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 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 reelection as a director, all information
relating to such person that is required (or would be required if the
corporation were subject to Regulation 14A under the Securities Exchange
Act of
26
1934, as amended) to be disclosed in solicitations of proxies or otherwise
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 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. 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 Section 3.03. The chairperson of the meeting shall, if the facts
warrant, determine that a nomination was not made in accordance with the
procedures prescribed in this Section 3.03 and, if he should so determine,
he shall so declare to the meeting and the defective nomination shall be
disregarded.
Section 3.04. Board Meetings; Time, Place and Notice. Meetings of the Board
of Directors may be held from time to time at any place within or without
the State of Minnesota that the Board of Directors may designate. In the
absence of designation by the Board of Directors in the notice of the
meeting or otherwise, meetings of the Board of Directors shall be held at
the principal executive office of the corporation, except as may be
otherwise unanimously agreed orally or in writing or by attendance. The
Chairman, Chief Executive Officer or any two directors may call a Board of
Directors meeting by giving two (2) days' notice to all directors of the
day or date, time and place of the meeting. Notice of a meeting called by
two directors other than the Chairman of the Board or Chief Executive
Officer shall state the purpose of the meeting. Notice may be given by
mail, telephone, telegram or in person. If a meeting schedule is adopted by
the Board of Directors, or if the day or date, time and place of a Board of
Directors meeting has been announced at a previous meeting, no additional
notice is required. Notice of an adjourned meeting need not be given other
than by announcement at the meeting at which adjournment is taken.
Section 3.05. Waiver of Notice. A director may waive notice of a meeting of
the Board of Directors. A waiver of notice by a director entitled to notice
is effective, whether given before, at or after the meeting and whether
given in writing, orally or by attendance. Attendance by a director at a
meeting is a waiver of notice of that meeting, except where the director
objects at the beginning of the meeting to the transaction of business
because the meeting is not lawfully called or convened and does not
participate thereafter in the meeting.
Section 3.06. Quorum. A majority of the directors currently holding office
shall be a quorum for the transaction of business. In the absence of a
quorum, a majority of the directors present may adjourn a meeting from time
to time until a quorum is present. If a quorum is present when a duly
called or held meeting is convened, the directors present may continue to
transact business until adjournment, even though the withdrawal of a number
of directors originally present leaves less than the proportion or number
otherwise required for a quorum.
Section 3.07. Absent Directors. A director who is unable to attend a
meeting of the Board of Directors may give advance written consent or
opposition to a proposal to be acted on at the meeting. If the director is
not present at the meeting, consent or opposition to a proposal does not
constitute presence for purposes of determining the existence of a quorum,
but consent or opposition shall be counted as a vote in favor of or against
the proposal and shall be entered in the minutes or other record of action
at the meeting, if the proposal acted on at the meeting is substantially
the same or has substantially the same effect as the proposal to which the
director has consented or objected.
Section 3.08. Action Without a Meeting. Any action requiring shareholder
approval required or permitted to be taken at a meeting of the Board of
Directors of this corporation may be taken without a meeting and notice
thereof by written action signed by all of the directors. The written
action is effective when signed by all of the directors, unless a different
effective time is provided in the written action. Such written action may
be taken by counterparts.
Section 3.09. Action by the Board. The Board of Directors shall take action
by the affirmative vote of a majority of the directors present at a duly
held meeting except where a larger proportion or number is required by the
Articles of Incorporation or applicable law.
27
Section 3.10. Electronic Communications. A conference among directors by
any means of communication through which the directors may simultaneously
hear each other during the conference constitutes a board meeting if the
same notice is given of the conference as would be required by Section 3.06
of these Bylaws for a meeting and if the number of directors participating
in the conference would be sufficient to constitute a quorum at a meeting
under Section 3.06 of these Bylaws. A director may also participate in a
meeting of the Board of Directors by any means of communication through
which the director, other directors so participating, and all directors
physically present at the meeting may simultaneously hear each other during
the meeting. Participation in a meeting of the Board of Directors pursuant
to the provisions of this section of the Bylaws constitutes presence in
person at the meeting.
Section 3.11. Committees. The Board of Directors may, by resolution
approved by the affirmative vote of a majority of its members, establish
one or more committees, including an executive committee and a committee of
disinterested persons, which shall have the authority of the Board of
Directors in the management of the business and affairs of the corporation
to the extent provided in the resolution, as amended from time to time. A
committee shall consist of one or more natural persons, who need not be
directors, appointed by the affirmative vote of a majority of the directors
present. Each committee shall keep minutes of its acts and proceedings and
make such minutes available upon request to members of the committee and to
any director. Committees shall at all times be subject to the direction and
control of the board, except as otherwise provided herein or by applicable
law. Sections 3.04 through 3.10 of these Bylaws shall apply to committees
and members of committees to the same extent as those sections apply to the
Board of Directors and to members of the Board of Directors.
Section 3.12. Presumption of Assent. A director who is present at a meeting
of the Board of Directors when an action is approved by the affirmative
vote of a majority of the directors present is presumed to have assented to
the action approved, unless the director (i) objects at the beginning of
the meeting to the transaction of business because the meeting is not
lawfully called or convened and does not participate thereafter in the
meeting, in which case the director shall not be considered to be present
at the meeting for purposes of determining whether a quorum is present;
(ii) votes against the action at the meeting; or (iii) is prohibited by
applicable law, due to a conflict of interest, from voting on the action.
Section 3.13. Resignation. A director may resign from the Board of
Directors at any time by giving written notice to the corporation at its
principal executive office. The resignation is effective without acceptance
when the notice is given to the corporation, unless a later effective time
is specified in the notice.
Section 3.14. Removal. Any director, including a director named by the
Board of Directors to fill a vacancy or newly created directorship, may be
removed at any time, with or without cause, by the affirmative vote of the
holders of two-thirds (2/3) of the voting power of the shares outstanding
and entitled to vote for the election of directors. New directors may be
elected at a meeting at which directors are removed.
Section 3.15. Vacancies. Vacancies on the Board of Directors resulting from
the death, disqualification, resignation, retirement or removal of a
director or by newly created directorships may be filled by the affirmative
vote of a majority of the remaining directors, even though less than a
quorum. Any director elected by the Board of Directors under this Section
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.
Section 3.16. Compensation of Directors. The members of the Board of
Directors and any committee may be reimbursed for their expenses, if any,
of attendance at each meeting of the Board of Directors or any committee;
and the Board of Directors may fix by resolution the compensation of
directors and of the members of any committee of the Board of Directors. No
such payment shall preclude any director or committee member from serving
the corporation in any other capacity and receiving compensation for his or
her services in such capacity.
Section 3.17. Chairman of the Board. The Board of Directors may elect one
of its members to be Chairman of the Board of Directors. In the event a
Chairman of the Board of Directors is
28
elected, he or she shall preside at all meetings of the Board of Directors.
The Chairman of the Board of Directors is subject to the control of the
Board of Directors and may be removed by the Board. The Chairman of the
Board of Directors shall have supervisory authority over the general policy
and business of the corporation and shall perform the duties that are
assigned by the Board of Directors.
ARTICLE IV.
OFFICERS
Section 4.01. Required Officers. The corporation shall have one or more
natural persons exercising the functions of the offices, however
designated, of Chief Executive Officer and Chief Financial Officer.
Section 4.02. Other Officers. In lieu of or in addition to appointing a
Chief Executive Officer and a Chief Financial Officer, the Board of
Directors may appoint, in a resolution approved by the affirmative vote of
a majority of the directors present, any other officers, assistant officers
or agents the Board of Directors deems necessary or appropriate for the
operation and management of the corporation, each of whom shall have the
powers, rights, duties, responsibilities and terms in office determined by
the Board of Directors from time to time. If elected, the following
officers shall have the following roles:
(a) Chairman of the Board. A Chairman of the Board, if one is elected,
shall preside at all meetings of the shareholders and directors and shall
have such other duties as may be prescribed from time to time by the Board
of Directors.
(b) President. The President, if elected in lieu of a Chief Executive
Officer, shall exercise the functions of the Chief Executive Officer.
(c) Vice President. Each Vice President, if elected, shall have such powers
and shall perform such duties as may be specified in the Bylaws or
prescribed by the Board of Directors or by the President. In the event of
absence or disability of the President, Vice Presidents shall succeed to
his power and duties in the order designated by the Board of Directors.
(d) Secretary. A Secretary, if elected, shall maintain records of the
corporation and together with the President or Chief Executive Officer,
certify the proceedings of the Board of Directors and the shareholders. The
Secretary shall perform such other duties as may from time to time be
prescribed by the Board of Directors or by the President.
(e) Treasurer. The Treasurer, if elected, shall exercise the functions of
the Chief Financial Officer, if there is no other person who has been
appointed Chief Financial Officer, and shall perform such other duties as
may from time to time be prescribed by the Board of Directors or by the
President.
If specific persons have not been elected as President or Secretary, the
Chief Executive Officer may execute instruments or documents in those
capacities. If a specific person has not been elected to the office of
Treasurer, the Chief Financial Officer of the corporation may sign
instruments or documents in that capacity.
Section 4.03. Election and Term of Office. At its first regular meeting
after the regular meeting of the shareholders each year, the Board of
Directors shall elect or appoint a Chief Executive Officer and a Chief
Financial Officer and/or such other officers, assistant officers or agents
the Board of Directors deems necessary. Such officers shall hold their
offices until their successors are elected and have qualified; provided,
however, that any officer may be removed in the manner provided in Section
4.13 of these Bylaws.
Section 4.04. Chief Executive Officer. Unless a resolution adopted by the
Board of Directors provides otherwise, the Chief Executive Officer shall
have the duties specified in this section. When present, the Chief
Executive Officer shall call to order and preside over all meetings of the
shareholders and all meetings of the Board of Directors unless a Chairman
of the Board of Directors is
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elected who shall preside at all meetings of the Board of Directors. The
Chief Executive Officer shall have responsibility for the active management
of the business of the corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect. The Chief
Executive Officer shall also sign and deliver in the name of the
corporation any deeds, mortgages, bonds, contracts or other instruments
pertaining to the business of the corporation as may be prescribed from
time to time by the Board of Directors, maintain records of and, whenever
necessary, certify all proceedings of the Board of Directors and the
shareholders. In addition, the Chief Executive Officer shall, in general,
perform all duties usually incident to the position of Chief Executive
Officer and such other duties as may from time to time be prescribed by the
Board of Directors.
Section 4.05. Chief Financial Officer. Unless a resolution adopted by the
Board of Directors provides otherwise, the Chief Financial Officer shall
have the duties specified in this section. The Chief Financial Officer
shall keep accurate financial records of the corporation; deposit all
money, drafts, and checks in the name of and to the credit of the
corporation in the banks and depositories designated by the Board of
Directors; endorse for deposit all notes, checks and drafts received by the
corporation as ordered by the Board of Directors, making proper vouchers
therefor, except to the extent that some other person or persons may be
specifically authorized by the Board of Directors to do so; disburse
corporate funds and issue checks and drafts in the name of the corporation
as authorized by the Board of Directors; render to the Chief Executive
Officer and the Board of Directors, whenever requested, an account of all
transactions by the Chief Financial Officer and of the financial condition
of the corporation; and shall perform such other duties as may be
prescribed by the Board of Directors or the Chief Executive Officer from
time to time.
Section 4.06. Multiple Offices. Any number of offices or functions of those
offices may be held or exercised by the same person, except that if a
President and Vice President shall be elected, the offices shall not be
held by the same person. If a document must be signed by persons holding
different offices or functions and a person holds or exercises more than
one of those offices or functions, that person may sign the document in
more than one capacity, but only if the document indicates each capacity in
which the person signs.
Section 4.07. Officers Deemed Elected. In the absence of an election or
appointment of officers by the Board of Directors, the person or persons
exercising the principal functions of the Chief Executive Officer or the
Chief Financial Officer are deemed to have been elected to those offices.
Section 4.08. Contract Rights. The election or appointment of a person as
an officer or agent of the corporation shall not, of itself, create
contract rights. The corporation may enter into an employment contract with
an officer or agent for a period of time if, in the judgment of the Board
of Directors, the contract would be in the best interests of the
corporation. The fact that the contract may be for a term longer than the
terms of the directors who authorized or approved the contract shall not
make the contract void or voidable.
Section 4.09. Delegation of Authority. Unless prohibited by a resolution
approved by the affirmative vote of a majority of the directors present at
a duly called meeting of the Board of Directors, an officer elected or
appointed by the Board of Directors may, without the approval of the Board
of Directors, delegate some or all of the duties or powers of his or her
office to other persons, provided that such delegation is in writing. An
officer who delegates the duties or powers of an office remains subject to
the standard of conduct for an officer with respect to the discharge of all
duties and powers so delegated.
Section 4.10. Reimbursement by Officers. It shall be required of every
officer and key employee of the corporation that an agreement be entered
into with the corporation providing that any payments made to, or on behalf
of, the officer or key employee, including, but not limited to, salary,
commission, bonus, interest, rent, reimbursement or travel and
entertainment expense incurred by him or her, which shall be finally
disallowed by the Internal Revenue Service in whole or in part as an
expense deductible by this corporation shall be repaid by such officer or
key employee to the corporation to the full extent of such disallowance.
This amount shall be repaid to the corporation by the officer or key
employee within thirty (30) days from the date of the final disallowance of
the deduction by payment in cash, or in such other manner as may be
determined by the Board of Directors. The final disallowance of a deduction
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shall be deemed to occur upon the agreement between the corporation and the
Internal Revenue Service with regard to the disallowance or upon final
court decision, including appeal thereof, establishing said disallowance.
It shall be the duty of the Board of Directors of this corporation, as a
Board, to enforce the repayment of all disallowed amounts by any officer or
key employee hereof.
Section 4.11. Compensation of Officers. The salaries of all officers of the
corporation shall be fixed from time to time by the Board of Directors or
an executive committee. The Board of Directors or an executive committee
may authorize and empower the Chief Executive Officer, President or any
Vice President to fix the salaries of all officers of the corporation who
are not directors of the corporation. No officer shall be prevented from
receiving a salary by reason of the fact that he or she is also a director
of the corporation.
Section 4.12. Resignation. An officer may resign at any time by giving
written notice to the corporation at its principal executive office. The
resignation is effective without acceptance when the notice is given to the
corporation, unless a later effective date is specified in the notice.
Section 4.13. Removal. Subject to the provisions of any shareholder control
agreement, an officer may be removed at any time, with or without cause, by
a resolution approved by the affirmative vote of a majority of the
directors present at a duly called meeting of the Board of Directors. Any
such removal shall be without prejudice to any contractual rights of the
officer.
Section 4.14. Vacancy. A vacancy in an office because of death,
resignation, removal, disqualification or other cause may, or in the case
of a vacancy in the office of Chief Executive Officer or Chief Financial
Officer shall, be filled by the Board of Directors for the unexpired
portion of the term, or for such term and on such conditions as shall be
determined by the Board of Directors.
ARTICLE V.
SHARES AND THEIR TRANSFER
Section 5.01. Certificates for Shares. Every shareholder of this
corporation shall be entitled to a certificate, to be in such form as
prescribed by law and adopted by the Board of Directors, certifying the
number of shares of the corporation owned by him or her. The certificates
for such shares shall be numbered in the order in which they are issued and
shall be signed in the name of the corporation by the Chief Executive
Officer or the Chief Financial Officer or any other proper officers of the
corporation authorized by the Board of Directors and shall have typed or
printed thereon such legend as may be required by law or any shareholder
control agreement. Every certificate surrendered to the corporation for
exchange or transfer shall be cancelled, and no new certificate or
certificates shall be issued in exchange for any existing certificate until
such existing certificate shall have been so cancelled, except in cases
provided for in Section 5.03 of these Bylaws.
Section 5.02. Transfer of Shares. Transfer of shares on the books of the
corporation may be authorized only by the shareholder named in the
certificate, or the shareholder's legal representative or duly authorized
attorney in fact, and is effective upon surrender for cancellation of the
properly endorsed certificate or certificates for such shares to the
corporation or its transfer agent. The corporation may treat as the
absolute owner for all purposes of shares of the corporation the person or
persons in whose name or names the shares are registered on the books of
the corporation and may not be bound to recognize any equitable or other
claim to or interest in such shares on the part of any other person,
whether or not it shall have express or other notice thereof.
Section 5.03. Lost Certificates. Any shareholder claiming that a
certificate for shares has been lost, destroyed or stolen shall make an
affidavit of that fact in such form as the Board of Directors may require
and shall, if the Board of Directors so requires, give the corporation a
sufficient agreement of indemnity or indemnity bond, in form, in an amount,
and with one or more sureties satisfactory to the Board of Directors, to
indemnify the corporation against any claims which may be made against it
on account of the reissue of such certificate. A new certificate shall then
be issued to said shareholder for the same number of shares as the one
alleged to have been destroyed, lost or stolen.
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Section 5.04. Fractional Shares. The corporation may issue fractions of a
share originally or upon transfer. Except as otherwise provided by
applicable law, if the Board of Directors decides not to issue fractions of
a share in connection with an original issuance of shares, the Board of
Directors must (i) arrange for the disposition of fractional interests by
persons entitled to them, (ii) pay in money the fair value of fractions of
a share as of the time when persons entitled to receive the fractions are
determined, or (iii) issue scrip or warrants in registered or bearer form
that entitle the holder to receive a certificate for a full share on the
surrender of scrip or warrants aggregating a full share.
Section 5.05. Facsimile Signature. Where any certificate is manually signed
by a transfer agent, a transfer clerk or by a registrar appointed by the
Board of Directors to perform such duties, a facsimile or engraved
signature of the Chief Executive Officer and Chief Financial Officer or any
other proper officers of the corporation authorized by the Board of
Directors may be inscribed on the certificate in lieu of the actual
signature of such officer. The fact that a certificate bears the facsimile
signature of an officer who has ceased to hold office shall not affect the
validity of such certificate if otherwise validly issued.
Section 5.06. Transfer Agent and Registrar. The Board of Directors may
appoint one or more transfer agents or transfer clerks, and one or more
registrars and may require all certificates for shares to bear the
signature or signatures of any of them.
Section 5.07. Conversion of Class B Common Stock.
(a) Conversion Procedure. In the event of any conversion of shares of Class
B Common Stock pursuant to Section 2.02(c) of the Articles of
Incorporation, the holder of such shares of Class B Common Stock shall
promptly surrender the certificate or certificates therefor, duly endorsed
in blank or accompanied by proper instruments of transfer, at the office of
the corporation, or of any transfer agent for such shares, and shall give
written notice to the corporation (the "Notice"), at such office: (1)
stating that shares of Class B Common Stock have been converted into Class
A Common Stock as provided in this Section 5.07; (2) specifying how the
conversion occurred; (3) identifying the number of shares of Class B Common
Stock being converted; and (4) setting out the name or names (with
addresses) and denominations in which the certificate or certificates for
shares of Class A Common Stock shall be issued, with instructions for
delivery thereof. Delivery of such notice together with the certificates
representing the shares of Class B Common Stock shall obligate the
corporation to issue such shares of Class A Common Stock. Thereupon the
corporation or its agent shall promptly issue and deliver to such holder a
certificate or certificates representing the shares to which such holder is
entitled, registered in the name of such holder or designee as specified in
the Notice. The corporation shall take any and all steps necessary to
effect a conversion pursuant to Section 2.02(c) of the Articles of
Incorporation, notwithstanding any failure by the holder to deliver to the
corporation the Notice or the certificates representing the shares subject
to such conversion.
(b) Effect of Automatic Conversion. To the extent permitted by law,
conversion shall be deemed to have been effected as of the date on which
conversion was first permitted or required under Section 2.02(c) of the
Articles of Incorporation (such date being the "Conversion Time"). The
person entitled to receive shares issuable upon such conversion shall be
treated for all purposes as the record holder of such class of shares at
and as of the Conversion Time, and the right of such person as a holder of
the shares held prior to such conversion shall cease and terminate at and
as of the Conversion Time, in each case notwithstanding any failure by the
holder to deliver to the corporation the Notice or the certificates
representing the shares subject to conversion, or the corporation's failure
to issue to the holder certificates representing the shares to be held
after the conversion has been effected
(c) Reservation. The corporation hereby reserves and shall at all times
reserve and keep available, out of its authorized and unissued shares of
capital stock, for the purposes of effecting conversions, such number of
duly authorized shares of capital stock as shall from time to time be
sufficient to effect the conversion of the Class B Common Stock
contemplated herein. All such shares so issuable shall, when so issued, be
duly and validly issued, fully paid and non-assessable,
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and free from liens and charges with respect to the issue. The corporation
will take all such action as may be necessary to ensure that all such
shares may be so issued without violation of any applicable law or
regulation, or of any requirements of any national securities exchange or
The Nasdaq Stock Market upon which such shares may be listed or traded.
ARTICLE VI.
CORPORATE BOOKS AND RECORDS
Section 6.01. Share Register. The corporation shall keep at its principal
executive office or at such other place or places within the United States
as determined by the Board of Directors, a share register not more than one
year old, containing the names and addresses of the shareholders, the
number and classes of shares held by each shareholder, the dates on which
the certificates therefor were issued, and, in the case of cancellation,
the date of cancellation.
Section 6.02. Other Required Documents. The corporation shall keep at its
principal executive office, or, if its principal executive office is not
located within the State of Minnesota, shall make available at its
registered office within ten (10) days after receipt by an officer of the
corporation of a written demand from a person described in Section 6.04 of
these Bylaws, either the originals or copies of the following:
a.Records of all proceedings of the shareholders and the Board of Directors
of the Corporation for at least the last three years;
b. The Articles of Incorporation of the corporation and all amendments
thereto;
c. These Bylaws and all amendments thereto currently in effect;
d. Reports made to shareholders generally within the last three years;
e. A statement of the names and usual business addresses of the
corporation's directors and principal officers;
f. Any shareholder control agreements and voting trust agreements; and
g. The financial statements required by Section 6.03 of these Bylaws and
the financial statement for the most recent interim period prepared in the
course of the operations of the corporation for distribution to the
shareholders or to a governmental agency as a matter of public record.
Section 6.03. Financial Statements. The corporation shall keep appropriate
and complete financial records and shall, upon written request by a
shareholder, furnish annual financial statements, including at least a
balance sheet as of the end of each fiscal year and a statement of income
for the fiscal year, which shall be prepared on the basis of accounting
methods reasonable in the circumstances and may be consolidated statements
of the corporation and one or more of its subsidiaries, if any. In the case
of statements audited by a public accountant, each copy shall be
accompanied by a report setting forth the opinion of the accountant on the
statements; in other cases, each copy shall be accompanied by a statement
of the Chief Financial Officer or other person in charge of the
corporation's financial records stating the reasonable belief of the person
that the financial statements were prepared in accordance with accounting
methods reasonable in the circumstances, describing the basis of
presentation and describing any respects in which the financial statements
were not prepared on a basis consistent with those prepared for the
previous year.
Section 6.04. Right to Inspect. So long as this corporation is publicly
held, any shareholder of the corporation, beneficial owner of shares of the
corporation or holder of a voting trust certificate relating to the shares
of the corporation has, upon written demand stating the purpose and
acknowledged or verified as required by law, a right to examine and copy,
at any reasonable time, the share register required by Section 6.01 of
these Bylaws and other corporate documents reasonably related to the
33
stated purpose. For purpose of these Bylaws, a "proper purpose" is any
purpose reasonably related to the person's interest as a shareholder,
beneficial owner of shares or holder of a voting trust certificate of the
corporation.
ARTICLE VII.
NOTICE
Section 7.01. Notice. Whenever under the provisions of these Bylaws notice
is required to be given to the corporation or an officer of the
corporation, such notice shall be in writing and is deemed to have been
given when mailed or delivered to the corporation or the officer at the
registered office or principal executive office of the corporation.
Whenever under the provisions of these Bylaws notice is required to be
given to any shareholder, director or member of a committee of the Board of
Directors of the corporation, such notice is deemed to have been given when
mailed to the person at an address designated by the person or at the last
known address of the person, or when communicated to the person orally, or
when handed to the person, or when left at the office of the person with a
clerk or other person in charge of the office, or if there is no one in
charge, when left in a conspicuous place in the office, or if the office is
closed or the person to be notified has no office, when left at the
dwelling house or usual place of abode of the person with some person of
suitable age and discretion then residing therein. Notice by mail is given
when deposited in the United States mail with sufficient postage affixed.
Notice is deemed received when it is given.
ARTICLE VIII.
INDEMNIFICATION
Section 8.01. Indemnification. The corporation shall indemnify each former
and present officer, director, or employee of the corporation, and each
person who serves or may have served at the request of the corporation as a
director, officer, employee or agent of another corporation or employee
benefit plan, and their respective heirs, administrators and executors, who
are made a party to a threatened, pending or completed civil, criminal,
administrative, arbitration, or investigative proceeding by reason of the
former or present official capacity of the person against judgments,
penalties, fines, including, without limitation, excise taxes assessed
against the person with respect to an employee benefit plan, including
attorneys' fees and disbursements, incurred by the person in connection
with the proceeding in accordance with, and to the fullest extent
permissible under, the provisions of Chapter 302A of the Minnesota
Statutes, as it may from time to time be amended. In the event a former or
present officer, director, or employee of the corporation is made or
threatened to be made a party to a civil, criminal, administrative,
arbitration or investigative proceeding by reason of the former or present
official capacity of the person, the person shall be entitled, upon written
request to the corporation, to payment or reimbursement by the corporation
of reasonable expenses, including attorneys' fees and disbursements,
incurred by the person in advance of the final disposition of the
proceeding, as provided in Minnesota Statutes Chapter 302A.
ARTICLE IX.
AMENDMENT OF BYLAWS
Section 9.01. Amendment of Bylaws. Unless reserved by the Articles of
Incorporation to the shareholders, the Board of Directors may, from time to
time by the affirmative vote of the majority of its members present at a
duly called meeting, adopt, amend or repeal all or any of the Bylaws of the
corporation subject, however, to the power of the shareholders, exercisable
in the manner provided by law, to adopt, amend or repeal Bylaws adopted,
amended or repealed by the Board of Directors. Notwithstanding any other
provisions of these Bylaws to the contrary (and notwithstanding the fact
that a lesser percentage or separate class vote may be specified by law,
the Articles of Incorporation or these Bylaws), the affirmative vote of the
holders of not less than two-thirds (2/3) of the voting power of all shares
outstanding and entitled to vote, voting together as a single class, shall
be required to amend or repeal, or adopt any provisions inconsistent with
Sections 2.12, 3.02, 3.03, 3.04, 3.06, 3.14, 3.15 or 9.01 of these Bylaws.
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CERTIFICATION OF BYLAWS
The undersigned, being the duly elected Secretary of Rural Cellular
Corporation, a Minnesota corporation, does hereby certify that the
foregoing Bylaws have been duly adopted to be the Bylaws of the corporation
and to supersede all previously existing Bylaws by action of the
shareholders taken the 15th day of September, 1995.
/s/ ▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇▇
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