EXHIBIT 3.2
BYLAWS
OF
MGP INGREDIENTS, INC.
Adopted June 15, 1989
Amended March 3, 2005
BYLAWS
OF
MGP INGREDIENTS, INC.
(A KANSAS CORPORATION)
(Restated for
Filing Purposes in Accordance with Rule 102(c) of Regulation S-T)
ARTICLE I
Offices
Section 1.1. Principal Office. - The
principal office for the transaction of business by MGP Ingredients, Inc. (formerly
Midwest Grain Products, Inc.) (hereinafter called the “Corporation”) shall be
at 1300 Main Street, Atchison, Atchison County, Kansas 66044.[As amended
effective March 3, 2005.]
Section 1.2. Registered
Office. - The Corporation, by resolution of the Board
of Directors, may change the location of the registered office that it has
designated in the Articles of Incorporation to any other place in Kansas. By similar resolution, the Corporation may
change its resident agent to any other person or corporation, including itself.
Section 1.3. Other
Offices. - The Corporation may have offices at any other
place or places, within or without the state of Kansas, as from time to time
the Board of Directors may decide necessary or the business of the Corporation
may require.
ARTICLE II
Meeting of Stockholders
Section 2.1. Annual
Meetings. - The annual meeting of the stockholders for
the election of Directors and for the transaction of such other business as may
be properly brought before the meeting, shall be held on the second Wednesday
in October in each year or on such other day as shall be determined in
advance by the Board of Directors. The
hour and place of the meeting, within or without the State of Kansas, shall be
fixed by the Board of Directors.
Section 2.2. Special
Meetings. - Special meetings of the stockholders may be
called at any time by the Chairman of the Board, the President or the Board of
Directors.
Section 2.3. Place
and Time of Special Meetings. - The stockholders of the Corporation shall
hold each special meeting at the place and at the hour, within or without the
state of Kansas, that the person or persons calling the meeting have fixed.
Section 2.4. Notice
of Meetings. - Written notice of the date, time and place
(and, in the case of a special meeting, the general nature of the business to
be transacted) of each annual or special stockholders’ meeting shall be given
to each stockholder of record entitled to vote at that meeting (except as
provided by Kansas Statutes Annotated (“K.S.A.”) § 17-6520 and any and all
amendments thereto), not less than ten (10) nor more than sixty (60) days
before the date of the meeting. Such
notice shall be deemed delivered to a stockholder when personally delivered to
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him or when deposited in the
United States mail, postage paid, addressed to the stockholder at his address
as it appears on the Corporation’s records, or, if there is no record of a
stockholder’s address, at his last address known to the Secretary of the
Corporation, or when transmitted to him at such address by telegraph,
telecopier, cable, facsimile, wireless or other form of recorded
communication. Except as the law
expressly requires, notice of a meeting of stockholders need not be published.
[As amended effective March 3, 2005.]
Section 2.5. Adjourned
Meetings and Notice Thereof. - Any stockholders’ meeting, annual or special,
whether or not a quorum is present, may be adjourned from time to time by the
vote of a majority of the shares, the holders of which are either present in
person or represented by proxy, but in the absence of a quorum, no other
business may be transacted at such meeting.
When any stockholders’ meeting, either annual or special, is adjourned
for thirty (30) days or more, notice of the adjourned meeting shall be given as
in the case of an original meeting.
Except as aforesaid, it shall not be necessary to give any notice of an
adjournment or of the business to be transacted at an adjourned meeting, if the
time and place are announced at the meeting at which such adjournment is taken.
Section 2.6. Quorum
and Vote Required. - The presence in person or by proxy of persons
entitled to vote a majority of the issued and outstanding stock of each class
of stock entitled to vote shall constitute a quorum for the transaction of
business. The stockholders present at a
meeting at which a quorum is present may continue to do business until adjournment,
despite the withdrawal of enough stockholders to leave less than a quorum. When a quorum is present at a meeting, any
question brought before such meeting shall be decided by the vote of the
holders of a majority of each class of stock entitled to vote on the question
present in person or represented by proxy shall decide any question brought
before such meeting, unless the question is one upon which by express provision
of statute or of the Articles of Incorporation, a different vote is required in
which case such express provision shall govern and control the decision of such
question.
Section 2.7. Chairman
and Minutes. - At each meeting of the stockholders, the
President, or in his absence the Chairman of the Board, or in his absence the
Chief Financial Officer or in his absence, another officer of the Corporation
chosen by the vote of a majority in voting interest of the stockholders present
in person or by proxy, or if all the officers of the Corporation are absent, a
stockholder so chosen, shall act as Chairman and preside at the meeting. The Secretary of the Corporation, or if he is
absent or required under this section to act as Chairman, the person (who
shall be an Assistant Secretary of the Corporation, if an Assistant Secretary
is present) whom the Chairman of the meeting shall appoint shall act as
Secretary of the meeting and keep the minutes.
Section 2.8. Order
of Business. - The Chairman of each meeting of the
stockholders shall determine the order of business, provided that the order of
business may be changed by the vote of a majority in voting interest of the
stockholders present in person or by proxy.
Section 2.9. Voting
and Ballots. - Except where otherwise provided by law, or by
the Articles of Incorporation of the Corporation, the exercise of voting rights
by stockholders shall be governed by the following provisions: Each stockholder (whether a holder of Common
Stock or Preferred Stock) entitled to vote shall, at each meeting of the
stockholders, be entitled to one
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vote for each share of capital
stock held by such stockholder as of the record date. No cumulative voting shall be permitted. All elections of directors shall be by
written ballot; unless demanded by a stockholder
of the Corporation present in person or by proxy at any meeting of the
stockholders and entitled to vote thereat, or so directed by the chairman of
the meeting, the vote on any other question at such meeting need not be by
written ballot. Upon a demand of any
such stockholder for a vote by written ballot on any question, or at the
direction of the chairman that a vote by ballot be taken on any question, such
vote shall be so taken. On a vote by
written ballot, each ballot shall be signed by the stockholder voting, or by
his proxy, if there be such a proxy, and shall state the number of shares
voted. [As amended effective March 3, 2005.]
Section 2.10. Proxies. - Every
person entitled to vote or execute consents shall have the right to do so either
in person or by one or more agents authorized by a written proxy executed by
such person or his duly authorized agent and filed with the Secretary of the
Corporation. Provided, however, that no
such proxy shall be valid after the expiration of three (3) years from the date
of its execution, unless the proxy instrument provides for a longer period.
Section 2.11. Inspection
of Stock List. - The Secretary of the Corporation, or the
other officer of the Corporation who shall have charge of the stock ledger,
either directly, through another officer of the Corporation that he designates,
or through a transfer agent that the Board of Directors appoints shall prepare,
at least ten (10) days before every meeting of the stockholders, a complete
list of the stockholders entitled to vote at such meeting. The officer responsible for the list will
arrange it in alphabetical order, showing the address of each stockholder and
the number of shares registered in the name of each. The list shall be open to inspection by any
stockholder, for any purpose germane to the meeting, during ordinary business
hours for a period of at least ten (10) days prior to the meeting, at the
Corporation’s principal place of business. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and
may be inspected by any stockholder who is present. [As amended effective March 3,
2005.]
(a) Prior
to each meeting of the stockholders, the Corporation shall appoint one or more
inspectors to act at the meeting and make a written report thereof. If no inspector is able to act at a meeting,
the person presiding at the meeting shall appoint one or more inspectors to act
at the meeting. Before entering upon the
discharge of the duties of inspector, each inspector shall subscribe an oath
faithfully to execute the duties of an inspector with strict impartiality and
according to the best of the inspector’s ability. The inspectors shall take charge of the
ballots at the meeting. After the
balloting on any question, they shall count the ballots cast and make a report
in writing to the Secretary of the meeting of the results of that vote. An inspector need not be a stockholder of the
Corporation, and any officer of the Corporation may be an inspector on any
question other than a vote for or against his election to any position with the
Corporation or on any other question in which he may be directly interested. The inspectors may appoint or retain other
persons or entities to assist the inspectors in the performance of their
duties.
(b) The
inspectors shall
(1) ascertain
the number of shares outstanding and the voting power of each;
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(2) determine
the shares represented at the meeting and the validity of proxies and ballots;
(3) count
all votes and ballots;
(4) determine
and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors; and
(5) certify
their determination of the number of shares represented at the meeting, and
their count of all votes and ballots.
(c) The
date and time of the opening and the closing of the polls for each matter upon
which the stockholder will vote at a meeting shall be announced at the
meeting. No ballot, proxies or votes,
nor any revocations thereof or changes thereto, shall be accepted by the
inspectors after the closing of the polls unless the district court upon
application by a stockholder determines otherwise.
(d) In
determining the validity and counting of proxies and ballots, except as may
otherwise be permitted by law the inspectors shall be limited to an examination
of the proxies, any envelopes submitted with those proxies, any information
provided in accordance with subsection (f) of K.S.A. 17-6501 or subsection (c)(2)
of 17-6502, and amendments thereto, or any information provided pursuant to subsection (a)(2)(B)(i)
or (iii) of K.S.A. 17-6501, and amendments thereto, ballots and the regular
books and records of the Corporation, except that the inspectors may consider
other reliable information for the limited purpose of reconciling proxies and
ballots submitted by or on behalf of banks, brokers, their nominees or similar
persons which represent more votes than the holder of a proxy is authorized by
the record owner to cast or more votes than the stockholder holds of
record. If the inspectors consider other
reliable information for the limited purpose permitted herein, the inspectors
at the time they make their certification pursuant to subsection (c) (5)
above shall specify the precise information considered by them, including the
persons or persons from whom they obtained the information, when the
information was obtained, the means by which the information was obtained and
the basis for the inspectors’ belief that such information is accurate and
reliable. [As amended effective March 3, 2005.]
Section 2.13. Action
Without Meeting. - Any action required or permitted to be taken
at any meeting of the stockholders may be taken without a meeting if a consent or
consents in writing, setting forth the action so taken, are signed (personally
or by duly authorized attorney) by all persons who would be entitled to vote
upon such action at a meeting, and filed with the minutes of the meetings of
the stockholders. Such consent or consents shall be delivered in a manner
prescribed by law to the Corporation by delivery to its registered office in
Kansas, its principal place of business or an officer or agent of the Corporation
having custody of the books in which proceedings of meetings of stockholders
are recorded. [As amended effective March 3,
2005.]
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ARTICLE III
Board of Directors
Section 3.1. Powers. - The
property, business, and affairs of the Corporation shall be managed by or under
the direction of a Board of Directors.
Section 3.2. Number,
Election Term, Qualification and Removal.
- - There shall be nine (9)
directors, of which four (4) shall be Group A directors, and five (5) shall be
Group B directors. The nine (9)
directors shall also be divided into three classes consisting of three (3)
directors each (Class A, B and C). One class
of directors shall be elected to office at each annual meeting of the stockholders. The term of office of each director shall be
for three (3) years and until his successor is elected and qualified, or until
his earlier resignation or removal. Class
A and Class B shall each consist of two (2) Group B directors and one (1) Group
A director, and Class C shall consist of two (2) Group A directors and one (1)
Group B director. Directors need not be
stockholders. Directors may be removed
in such manner as may be provided by the Kansas General Corporation Code (the “Code”)
or by the Articles of Incorporation.
Section 3.3. Meetings. - Meetings
of the Board of Directors of the Corporation may be held within or without the
state of Kansas. The Board of Directors
shall hold an annual meeting without notice immediately after the final
adjournment of and at the same place as each annual meeting of the
stockholders. The Board of Directors may
hold other regular meetings with or without notice at such times and places as
the Board may provide. The Board may
hold special meetings at any time upon the call of any member of the Board or
the President. Notice of any special
meeting, including the time and place of the meeting, shall be given to each
director by any of the following means: (a)
by a writing deposited in the United States mail, postage paid, addressed to
the director at his residence or principal business office, at least five (5)
days prior to the date of the meeting; (b) by telegraph, cable, wireless,
telecopier, facsimile or other form of recorded communication sent not later
than the day before the date of the meeting; or (c) by oral communication,
personally or by telephone, not later than the day before the date of the
meeting.
Section 3.4. Adjourned
Meetings and Notice Thereof. - Any meeting of the Board of Directors may be
adjourned from time to time, whether or not a quorum is present, by the vote of
a majority of directors present. Notice
of any adjourned meeting need not be given if the Board fixed the time and
place at the meeting from which adjournment was taken.
Section 3.5. Quorum
and Manner of Acting. - Five (5) of the nine directors shall
constitute a quorum for the transaction of business at any meeting, and the act
of a majority of the directors present at any meeting at which a quorum shall
be present shall be the act of the Board of Directors. The directors present at a duly called or held
meeting at which a quorum is present may continue to do business until
adjournment, despite the withdrawal of enough directors to leave less than a
quorum. Members of the Board, or of any
committee the Board designates, may participate in a meeting of the Board or of
that committee by means of conference telephone or similar communications
equipment through which all persons participating in the meeting can hear one
another. Such participation shall
constitute presence in person at the meeting.
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Section 3.6. Action
by Consent. - Any action required or permitted to be taken
at a meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board or the committee consent to such
action in writing and the writing or writings are filed with the minutes of
proceedings of the Board or the committee.
Section 3.7. Vacancies. - A
majority of the directors then in office, although less than a quorum, or a
sole remaining director may fill vacancies on the Board. If at any time the Corporation should have no
directors in office, then any officer, stockholder, executor, administrator,
trustee, or guardian of a stockholder, or other fiduciary entrusted with
responsibility for the person or estate of a stockholder may call a special
meeting of the stockholders in accordance with the provisions of these bylaws
for the purpose of electing directors.
A vacancy on
the Board shall exist in case of the death, resignation, or removal of any
director, if the stockholders increase the number of directors, if the
stockholders fail at any meeting at which they elect directors to elect the
full number of directors for which they are voting at that meeting, or if a
director refuses to serve. If a director
resigns, effective at a future date, the Board, including any directors whose
resignations are not yet effective, shall have the power to fill that vacancy,
the successor to take office when the resignation becomes effective.
Each director
chosen as this section provides shall hold office until the next regular
election of directors or of the class of which such director is a part and
until the election and qualification of his successor. No reduction in the authorized number of
directors shall have the effect of removing any director prior to the
expiration of his term of office.
Section 3.8. Inspection
of Books and Records. - Any director shall have the right to examine
the Corporation’s stock ledger, a list of its stockholders entitled to vote and
its other books and records for a purpose reasonably related to such director’s
position as a director. When there is
any doubt concerning the inspection rights of a director, the parties may
petition the District Court which may, in its discretion, determine whether an
inspection may be made and whether any limitations or conditions should be
imposed upon the same.
ARTICLE IV
Committees
Executive and
Other Committees.
- - The Board of Directors may, by
resolution or resolutions passed by a majority of the whole Board, designate an
Executive Committee and one or more other committees, each to consist of one
(1) or more directors. The Executive
Committee shall not have authority to make, alter, or amend bylaws, or to fill
vacancies in its own membership or that of the Board, but it shall exercise all
other powers of the Board between meetings of that body. Other committees of the Board shall have the
powers of the Board to the extent their authorizing resolutions provide. The Executive and such other committees shall
meet at stated times or on notice to all committee members by any one of them. The committees shall fix their own rules of
procedure. A majority shall constitute a
quorum, but the affirmative vote of a majority of the whole committee shall be
necessary for any action. The Executive and
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other committees shall keep regular minutes of their proceedings and
report these to the Board of Directors.
ARTICLE V
Officers
Section 5.1. Number. - The
Officers of the Corporation shall be a President, Chairman of the Board,
Secretary, Treasurer and such other officers, including one or more Vice
Presidents, Assistant Secretaries, Assistant Treasurers, and other assistant
officers as the Board of Directors may from time to time elect. If more than one Vice President be elected,
the Board may determine the seniority of each of said Vice Presidents. Any two or more offices may be held by the
same individual.
Section 5.2. Election
and Term. - The officers shall be elected annually by the
Board of Directors at its first meeting following the annual meeting of the
stockholders and shall hold office at the pleasure of the Board of Directors
until such officer’s successor is elected and qualified or until such officer’s
earlier resignation or removal. At any
meeting, the Board of Directors may elect such other officers to hold office
until such officer’s successor is elected and qualified or until such officer’s
earlier resignation or removal.
Section 5.3. Absence
or Disability. - In the event of the absence or disability of
any officer of the Corporation and of any person authorized to act in his place
during such period of absence or disability, the Board of Directors may from
time to time delegate the powers and duties of that officer to any other
officer, or any director or any other person whom it may select.
Section 5.4. Removal
and Resignation. - Any officer elected by the Board of Directors
may be removed with or without cause at any time by the Board of Directors. Any officer may resign at any time upon
written notice to the Corporation.
Section 5.5. Vacancies. - In
case any office shall become vacant by reason of death, resignation, removal or
otherwise, the directors then in office, although less than a majority of the
entire Board of Directors, may, by a majority vote of those voting, choose a
successor or successors for the unexpired term.
Section 5.6. Compensation
of Officers. - The Board of Directors, a committee of the
Board of Directors or such officer as the Board or such committee may
designate, may fix the compensation for the officers of the Corporation.
Section 5.7. Bond. - The
Board of Directors, by resolution, may require any and all of the officers to
give bond to the Corporation, with sufficient surety or sureties, conditioned
for the faithful performance of the duties of their respective offices, and to
comply with such other conditions as may from time to time be required by the
Board of Directors.
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ARTICLE VI
Duties of
Officers
Section 6.1. Chairman
of the Board. - If a Chairman of the Board be elected, he
shall preside at all meetings of the Board of Directors at which he may be
present and shall have all the power and authority of the President of the
Corporation, including the authority to execute documents and take such other
actions as may be provided by these Bylaws to be performed by the President,
except that the Chairman of the Board shall not be the chief executive officer
of the Corporation and shall not be authorized to take any action which would
conflict with any act taken by the President. In the absence of the President or upon the
death, resignation or removal of the President, the Chairman of the Board shall
be the chief executive officer of the Corporation. The Chairman of the Board shall also have such
further authority and duties as the Board of Directors may from time to time
direct.
Section 6.2. The
President. - Unless the Board otherwise provides, the
President shall be the chief executive officer of the Corporation with such
general executive powers and duties of supervision and management as are
usually vested in the office of the chief executive officer of a corporation.
He shall see
that all orders and resolutions of the Board of Directors are carried into
effect, subject to the right of the directors to delegate any specific powers
to any other officer or officers of the Corporation.
He shall
preside at all meetings of the stockholders and in the absence of the Chairman
of the Board at meetings of the Board of Directors.
He, alone or
with the Secretary or any other proper officer of the Corporation thereunto
authorized by the Board of Directors may sign certificates for shares of the
Corporation, deeds, conveyances, bonds, mortgages, contracts or other
instruments which the Board of Directors has authorized to be executed, and
unless the Board of Directors shall order otherwise by resolution, he may
borrow such funds, make such contracts, and execute such agreements, financing
statements, certificates, documents and other instruments as may be incident thereto,
as the ordinary conduct of the Corporation’s business may require.
Unless the
Board otherwise provides, the President or any person designated in writing by
him may (i) attend meetings of stockholders of other corporations to represent
the Corporation thereat and to vote or take action with respect to the shares
of any such corporation owned by this Corporation in such manner as he or his
designee may determine, and (ii) execute and deliver written consents, waivers
of notice and proxies for and in the name of the Corporation with respect to
any such shares owned by this Corporation.
He shall,
unless the Board provides otherwise, be ex-officio a member of all standing
committees.
He shall have
such other or further duties and authority as may be prescribed elsewhere in
these bylaws or from time to time by the Board of Directors.
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In the
absence, disability or inability to act of the Chairman of the Board, the
President shall perform the duties and exercise the powers of the Chairman of
the Board.
Section 6.3. Vice
Presidents. - Any Vice President elected by the Board of
Directors shall perform such duties as shall be assigned to him and shall
exercise such powers as may be granted to him by the Board of Directors or by
the President or Chairman of the Board. In
the absence of the President and Chairman of the Board, the Vice Presidents, in
order of their seniority, may perform the duties and exercise the powers of the
President with the same force and effect as if performed by the President.
Section 6.4. The
Secretary. - The Secretary shall keep the minutes of the
stockholders, the Board of Directors, and the Executive Committee’s meetings in
books provided for that purpose.
He shall be
custodian of the corporate records and of the seal of the Corporation. He shall see that the seal of the Corporation
is affixed to all certificates for shares prior to the issue thereof and to all
documents, the execution of which on behalf of the Corporation under its seal
is duly authorized in accordance with the provisions of these bylaws.
He shall sign
with the President, or a Vice President, certificates for shares of the
Corporation, the issue of which shall have been authorized by resolution of the
Board of Directors. Except to the extent
delegated by the Board to an institutional stock transfer agent and registrar,
he shall have general charge of the stock transfer books of the Corporation and
shall keep a register of the post office address of each stockholder which
shall be furnished to the Secretary by such stockholder.
He shall see
that all notices are duly given in accordance with the provisions of these
bylaws or as required by law and that the voting list is prepared for
stockholders’ meetings.
In general,
the Secretary shall perform all duties incident to the office and such other
duties as may from time to time be assigned to him by the chief executive
officer or by the Board of Directors.
Section 6.5. Assistant
Secretary. - At the request of the Secretary, or in his
absence or disability, any Assistant Secretary appointed by the Board of
Directors shall perform any of the duties of the Secretary and, when so acting,
shall have all the powers of, and be subject to all the restrictions upon, the
Secretary. Except where by law the
signature of the Secretary is required, each of the Assistant Secretaries shall
possess the same power as the Secretary to sign certificates, contracts,
obligations and other instruments of the Corporation, and to affix the seal of
the Corporation to such instruments, and attest the same.
Section 6.6. The
Treasurer. - The Treasurer shall have responsibility for
the funds and securities of the Corporation; he shall receive and give receipts
for moneys due and payable of the Corporation from any source whatsoever, and
deposit all such moneys in the name of the Corporation in such banks, trust
companies or other depositaries as shall be selected by the Board of Directors
or by any officer of the Corporation to whom such authority has been granted by
the Board of Directors.
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He shall
disburse or permit to be disbursed the funds of the Corporation as may be
ordered or authorized generally by the Board.
He shall
render to the President, the Chairman of the Board and the directors whenever
they may require it an account of all his transactions as Treasurer and of
those under his jurisdiction and of the financial condition of the Corporation.
In general, he
shall perform all the duties incident to the office of Treasurer and such other
duties as from time to time may be assigned to him by the President, the
Chairman of the Board or by the Board of Directors.
Section 6.7. Assistant Officers. - Each
assistant officer that may be selected pursuant to these bylaws shall hold
office at the pleasure of the Board of Directors. In the absence or nonavailability of the
principal, the assistant may perform the duties and exercise the powers of the
principal with the same force and effect as if performed by the principal. The assistant shall also have such lesser or
greater authority and perform such other duties as the Board of Directors may
prescribe.
ARTICLE VII
Signature
Authority and Representation
Section 7.1. Contracts,
Checks, etc. - All contracts and agreements authorized by
the Board of Directors, and all checks, drafts, bills of exchange or other
orders for the payment of money, notes, or other evidences of indebtedness
issued in the name of the Corporation, shall be signed by such officer or
officers, or agent or agents, as may from time to time be authorized by these
bylaws, designated by the Board of Directors, or as may be designated by such
officer or officers as the Board of Directors may appoint, which designation or
designations may be general or confined to specific instances. The Board of Directors may authorize the use
of facsimile signatures on any such document.
Section 7.2. Proxies
in Respect of Securities of Other Corporations. - Unless
the Board of Directors provides otherwise, the President, Chairman of the
Board, or a Vice President may from time to time appoint an attorney or an
agent to exercise, in the name and on behalf of the Corporation, the powers and
rights which the Corporation may have as the holder of stock or other
securities in any other corporation to vote or to consent in respect of that
stock or those securities. The
President, Chairman of the Board, or Vice President may instruct the person or
persons he appoints as to the manner of exercising the powers and rights, and
the President or Chairman of the Board may execute or cause to be executed in
the name and on behalf of the Corporation all written proxies, powers of
attorney, or other written instruments that he deems necessary in order for the
Corporation to exercise those powers and rights.
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ARTICLE VIII
Certificates
of Stock, Bonds, and Records
Section 8.1. Form
& Signature. - The shares of the Corporation shall be represented
by certificates which shall be numbered and entered in the books of the
Corporation as the Corporation issues them. The certificates of stock shall bear the
holder’s name and number of shares, and shall be signed by or in the name of
the Corporation by the Chairman of the Board, the President or a Vice
President, and the Secretary or an Assistant Secretary; provided, however, that
any or all of the other signatures on the certificate may be a facsimile. In case any officer of the Corporation, transfer
agent or registrar who shall have signed or whose facsimile signature shall
have been placed upon a certificate ceases to be such officer, transfer agent
or registrar before such certificate is issued, the Corporation may
nevertheless issue the certificate with the same effect as though the person
were an officer, transfer agent or registrar at the date of issuance.
Section 8.2. Transfers. - All
shares of stock may be transferred on the books of the Corporation by the
registered holders thereof or by their attorneys legally constituted or their
legal representatives by surrender of the certificates therefor for
cancellation and a written assignment of the shares evidenced thereby. The Board of Directors may from time to time
appoint such Transfer Agents and Registrars of stock as it may deem advisable
and may define their powers and duties.
Section 8.3. Record
Owner. - The Corporation shall be entitled to
recognize the exclusive right of a person on its books as the owners of shares
to receive dividends, and to vote as such owner, and to hold liable for calls
and assessments a person registered on its books as the owner of shares, and
shall 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, except as otherwise provided by the laws of
the State of Delaware.
Section 8.4. Lost
Certificates. - Any person applying for a certificate of
stock to be issued in lieu of one alleged to be lost or destroyed shall furnish
to the Corporation such information as it may require to ascertain whether a
certificate of stock has been lost or destroyed and shall furnish such bond as
the Board may deem sufficient to indemnify the Corporation and its transfer
agent and registrar against any claim that may be made on account of the
alleged loss.
Section 8.5. Books
and Records. - The Corporation may keep its books and
records at any places within or without the state of Kansas that the Board of
Directors may from time to time determine.
Section 8.6. Record
Dates. - Record dates may be set as follows:
(1) In order for the
Corporation to determine the stockholders entitled to notice of or to vote at
any meeting, the Board of Directors may fix, in advance, a record date which
shall not precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors, and not be more than sixty (60) days nor
less than ten (10) days before the date of a meeting. If the Board of Directors does not fix a
record
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date, the record date for determining stockholders entitled to notice of
or to vote at a meeting shall be the close of business on the day that next
precedes the day on which notice of the meeting is given or, if notice is
waived, the close of business on the day that next precedes the day on which
the stockholders meet.
(2) In order for the
Corporation to determine the stockholders entitled to consent to corporate
action in writing without a meeting, the Board of Directors may fix, in
advance, a record date which 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 ten (10) days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. If the Board does not fix a record date, the
record date for determining stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action of the Board is
necessary, shall be the date on which the first written consent is delivered to
the Corporation by delivery to its registered office within the state of
Kansas, its principal place of business, or Secretary. Delivery made to the 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 of the Board of Directors is
required, the record date for determining stockholders 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 a resolution taking such
other action.
(3) In order for the
Corporation to determine the stockholders entitled to receive payment of any
dividend, distribution or allotment of, any rights, or 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 sixty (60)
days prior to such action. If no record
date is fixed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the Board of
Directors adopts a resolution relating thereto. In connection with the declaration of
dividends, the Board may specify a variable payment date which will be the
earlier of the sixtieth day following the record date or the date of a future
event such as the mailing of a notice or report to stockholders.
Section 8.7. Closing
Stock Books. - The Board of Directors may close the books of
the Corporation against transfers of shares during the whole or any part of a
period not more than sixty (60) days prior to the date of a stockholders’
meeting, the date when the right to any dividend, distribution, or allotment of
rights vests, or the effective date of any change, conversion, or exchange of
shares.
ARTICLE IX
Dividends
Subject to the
Articles of Incorporation, whenever the Board of Directors decides that the
affairs of the Corporation render it advisable, the Board, at any regular or
special meeting, may
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declare and pay dividends in an amount the Board believes proper upon
the shares of stock of the Corporation either (1) out of the Corporation’s
surplus as defined and computed in accordance with the provisions of law, or
(2) in case the Corporation shall not have any such surplus, out of the net
profits for the fiscal year in which the Board declares the dividend and/or the
net profits of the preceding fiscal year.
Before the
Corporation pays any dividend or makes any distribution of profits, the Board
may set aside out of the surplus or net profits of the Corporation any sum that
the directors in their absolute discretion think proper as a reserve to meet contingencies,
to equalize dividends, to repair or maintain property of the Corporation, or to
accomplish any other purpose the directors think is in the interests of the
Corporation.
ARTICLE X
Indemnification
Section 10.1. Right to Indemnification. - Each
person who was or is made a party or is threatened to be made a party to or is
involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a “proceeding”),
by reason of the fact that he or she, or a person of whom he or she is the
legal representative, is or was a director or officer, of the Corporation, or
who, while a director, officer or employee of the Corporation, is or was
serving at the request of the Corporation as a director or officer of another
enterprise, whether the basis of such proceeding is alleged action in an
official capacity as a director or officer, or in any other capacity while
serving as a director or officer, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the K.S.A., as the same exist
or may hereafter be amended (but, in the case of any such amendment, only to
the extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, liability and loss (including attorney’s
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to
be paid in settlement) reasonably incurred or suffered by such person in
connection therewith; provided, however, that, the Corporation shall indemnify
any such person seeking indemnity in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to indemnification conferred in this
Section shall include the right to be paid by the Corporation the expenses,
including attorneys fees, incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that the payment of such expenses incurred by a present or former director
or officer in advance of the final disposition of a proceeding, shall be made
only upon delivery to the Corporation of an undertaking, by or on behalf of
such present or former director or officer, to repay all amounts so advanced if
it shall ultimately be determined that such present or former director or
officer is not entitled to be indemnified under this Section or otherwise.
For purposes of this Article X, the
term “enterprise” shall include corporations, both profit and nonprofit,
partnerships, joint ventures, trusts, employee plans and associations, and the
term “officer” shall include with respect to partnerships, joint ventures,
trusts or other enterprises, the offices of general partner, trustee or other
fiduciary (as defined in the Employee Retirement Income Security Act, as
amended). The Corporation may, by action
of its Board of Directors, provide indemnification and expense advances to
employees and agents of the Corporation with the same
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scope and effect as the
foregoing indemnification of present and former directors and officers. [As
amended effective March 3, 2005.]
Section 10.2. Certain
Limits on Indemnity. - Notwithstanding anything contained in this Article X
to the contrary, the Corporation shall not be liable, unless otherwise provided
by separate written agreement, by-law or other provision for indemnity, to make
any payment in connection with any claim made against the director or officer:
(1) for an accounting of
profits made from the purchase or sale by the officer or director of securities
of the Corporation within the meaning of Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto; or
(2) for amounts paid in
settlement of any proceeding effected without the written consent of the
Corporation, which consent shall not be unreasonably withheld.
Section 10.3. Rights
to Indemnity Shall be Contractual and Continuing. - The
provisions of this Article X shall be deemed to be a contract between this
Corporation and each person who serves as contemplated as a director or officer
at any time while such provisions are in effect; they shall continue as to a
person who has ceased to be a director or officer; and they shall inure to the
benefit of his or her heirs, executors and administrators. Such provisions may be limited or qualified as
to service occurring subsequent to such limitation or qualification by
authority of the Board of Directors of this Corporation; provided, however, any
such limitation or qualification, or any other repeal or amendment of this Article X
shall not affect any right or obligation then existing with respect to any
state of facts then or theretofore existing or any action, suit or proceeding
theretofore or thereafter brought based in whole or in part upon any such state
of facts.
Section 10.4. Certain
Procedural Matters. -
(1) In the event of
payment under the provisions of this Article, the Corporation shall be
subrogated to the extent of such payment to all of the rights of recovery of
the director or officer.
(2) The Corporation shall
be entitled to participate at its expense in any proceeding for which a
director or officer may be entitled to indemnity, and it may assume the defense
thereof with counsel satisfactory to the director or officer unless the officer
or director reasonably concludes that there may be a conflict of interest
between the Corporation and the director or officer in the conduct of such
defense.
(3) If a claim under this
Article is not paid in full by the Corporation within ninety (90) days
after a written claim has been received by the Corporation, the claimant may at
any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant shall
be entitled to be paid also the expense (including reasonable attorneys’ fees)
of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking has been tendered to the Corporation)
that the claimant
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has not met the standards of conduct which make it permissible under
the K.S.A. for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
K.S.A., nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant
had not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that the claimant has not met the applicable
standard of conduct.
Section 10.5. Non-Exclusivity
of Rights. - The right to indemnification and the payment
of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Articles of Incorporation, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 10.6. Insurance. - The
Corporation may maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Corporation or another enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person or enterprise against such expense,
liability or loss under the K.S.A.
ARTICLE XI
Miscellaneous
Section 11.1. Seal.
- - The seal of the Corporation
shall be circular in form and shall contain the following words:
MGP INGREDIENTS, INC.
CORPORATE
SEAL
KANSAS
[As amended effective March 3, 2005.]
Section 11.2. Fiscal
Year. - The fiscal year of the Corporation shall end
on the 30th day of June in each year.
Section 11.3. Amendments. - All
bylaws of the Corporation shall be subject to alteration or repeal, and new
bylaws may be made, by the Board of Directors subject to the power of the stockholders
of the Corporation to alter or repeal any bylaws made by the Board of
Directors.
Section 11.4. Waiver
of Notice. - Whenever notice of an annual, regular or
special meeting of the stockholders, the Board of Directors or any committee of
the Board is required to be delivered to a person under any of the provisions
of these bylaws, a written waiver of notice
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signed by such person, whether
signed before or after the meeting, shall be deemed equivalent to the timely
delivery to such person of written notice of such meeting. Attendance of a person at a meeting also shall
be deemed equivalent to the timely delivery to such person of written notice of
such meeting, unless such person attends such meeting for the purpose of
objecting to the transaction of any business because the meeting is not
lawfully called or convened and states such to be his purpose at the beginning
of the meeting. Neither the business to
be transacted at, nor the purpose of, any annual, regular or special meeting of
the stockholders, the Board of Directors or any committee of the Board need be
specified in any written waiver of notice of such meeting, regardless whether
such specification would be required in the notice of such meeting.
Section 11.5. Interpretation. - Whenever
the context indicates, the masculine gender in these bylaws shall include the
feminine and neuter, and the singular shall include the plural or vice versa. The table of contents and headings are solely
for organization, convenience, and clarity. They do not define, limit, or describe the
scope of these bylaws or the intent in any of the provisions.
Section 11.6. Inoperative
Portion. - If any portion of these bylaws shall be
invalid or inoperative, then, to the extent reasonable and possible, the
remainder shall be valid and operative, and effect shall be given to the intent
that the portion held invalid or inoperative manifests.
Section 11.7. Inapplicability
of Control Share Acquisition Act. - The
provisions of Section 17-1286 to 17-1298 of the Kansas Statutes, also
known as the Kansas Control Share Acquisition Act, shall not apply to this
Corporation.
SECRETARY’S
CERTIFICATE
The
undersigned Secretary of MGP Ingredients, Inc. (the “Company”) hereby certifies
on March 3, 2005 that the foregoing is a true and correct copy of the Bylaws of
the Company, as amended.
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MGP Ingredients, Inc.
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By:
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/s/ Marta Myers
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Marta Myers,
Secretary
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