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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the stockholder or when deposited in the United States mail, postage
paid, addressed to the stockholder at such person’s address as it appears on
the Corporation’s records, or, if there is no record of a stockholder’s
address, at the stockholder’s last address known to the Secretary of the
Corporation, or when transmitted to the stockholder 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 16, 2006]
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 Chairman of the Board, or in the Chairman’s
absence or if requested by the Chairman of the Board, the President, or in the
President’s absence the chief financial officer, or in the chief financial
offier’s 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 the Secretary 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. [As amended effective March 16, 2006.]
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
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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 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 such
person’s proxy, if there be such a proxy, and shall state the number of shares
voted. [As amended effective March 16, 2006.]
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 such person’s 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. [As amended effective March 16, 2006.]
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 the Secretary 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 16, 2006.]
Section 2.12. Inspectors of Votes.
(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 such officer’s election to any position with the Corporation or on any
other question in which such officer may be directly interested. The
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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;
(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 16, 2006.]
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
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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.]
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 such person’s successor is
elected and qualified, or until such person’s 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. [As amended effective March 16, 2006.]
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 the director’s 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. [As amended effective March 16, 2006.]
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
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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.
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 such person’s successor.
No reduction in the authorized number of directors shall have the effect
of removing any director prior to the expiration of such person’s term of
office. [As amended effective March 16, 2006.]
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
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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 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.The Board shall
designate an Officer as chief executive officer and an Officer as chief
financial officer, and may provide such other designations, such as chief
operating officer or chief accounting officer, as it may deem appropriate. If more than one Vice President be elected,
the Board may designate one or more of them as Executive Vice President or
Senior Vice President. Additionally, the
chief executive officer may appoint one or more divisional or segment vice
presidents. Any two or more offices may
be held by the same individual. [As amended effective March 16, 2006.]
Section 5.2. Election and Term. - The
Officers of the Corporation shall be elected annually by the Board of Directors
at its first meeting following the annual meeting of the stockholders and shall
hold office 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.
A division or segment vice president appointed by the chief executive
officer may be appointed at any time, and any person so appointed shall hold
such office until such person’s resignation or removal. Each Officer of the
Corporation and each division or segment vice president shall be subject to the
control of, and shall hold office at the pleasure of, the Board of Directors.
[As amended effective March 16, 2006.]
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 such officer’s 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. [As amended effective March 16, 2006.]
Section 5.4. Removal and Resignation. - Any
officer may be removed with or without cause at any time by the Board of
Directors, and any segment or division vice president appointed by the chief
executive officer may be removed with or
without cause at any time by the chief executive officer. Any officer may resign at any time upon
written notice to the Corporation. [As
amended effective March 16, 2006.]
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Section 5.5. Vacancies. - In
case any office filled by the Board of Directors pursuant to Section 5.1 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. [As amended effective March 16, 2006.]
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 or provide the method for
determining the compensation for officers. [As amended effective March 16,
2006.]
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.
ARTICLE VI
Duties of Officers
Section 6.1. Chairman of the Board. - The
Chairman of the Board shall preside at all meetings of the Board of Directors
and shall also have such further authority and duties as the Board of Directors
may from time to time direct and as may be provided in these bylaws.. In the absence of the President or upon the
death, resignation or removal of the President, the Chairman of the Board shall
have the duties of the President. [As
amended effective March 16, 2006.]
Section 6.2. The President. - The
President shall have such authority and duties as the Board of Directors may
from time to time direct and as may be provided in these bylaws. 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.
[As amended effective March 16, 2006.]
The
President 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. [As
amended effective March 16, 2006.]
In the
absence the Chairman of the Board, the President shall preside at meetings of
the Board of Directors, and in the absence of or if requested by the Chairman
of the Board, shall preside at meetings of stockholders.
The
President, 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, may borrow such funds, make such contracts, and execute such
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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 the President 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
the President or the President’s 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.
The
President shall, unless the Board provides otherwise, be ex-officio a member of
all standing committees.
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. [As amended effective March 16, 2006.]
Section 6.3. Vice Presidents. - Any
Vice President elected by the Board of Directors shall perform such duties as
shall be assigned to such person and shall exercise such powers as may be
granted to such person by the Board of Directors or by the chief executive
officer. In the absence of the President
and Chairman of the Board, the Vice Presidents elected by the Board of
Directors, in order of their seniority, may perform the duties and exercise the
powers of the chief executive officer
with the same force and effect as if performed by the chief executive
officer. Divisional or segment vice
presidents appointed by the chief executive officer shall perform such duties
and exercise such powers as are approved by the Board of Directors. [As amended
effective March 16, 2006.]
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.
The
Secretary shall be custodian of the corporate records and of the seal of the
Corporation. The Secretary 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.
The
Secretary shall sign with the President, the Chairman of the Board 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, the Secretary 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.
The
Secretary 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.
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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 the Secretary by the chief
executive officer or by the Board of Directors. [As amended effective March 16,
2006.]
Section 6.5. Assistant Secretary. - At
the request of the Secretary, or in the event of the Secretary’s
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. [As amended effective
March 16, 2006.]
Section 6.6. The Treasurer. - The
Treasurer shall have responsibility for the funds and securities of the
Corporation, shall receive and give receipts for moneys due and payable of the
Corporation from any source whatsoever, and shall 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.
The
Treasurer shall disburse or permit to be disbursed the funds of the Corporation
as may be ordered or authorized generally by the Board.
The
Treasurer shall render to the President, the Chairman of the Board and the
directors whenever they may require it an account of all such officer’s
transactions as Treasurer and of those under such officer’s jurisdiction and of
the financial condition of the Corporation.
In
general, the Treasurer shall perform all the duties incident to the office of
Treasurer and such other duties as from time to time may be assigned to the
Treasurer by the chief executive officer or by the Board of Directors. [As
amended effective March 16, 2006.]
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
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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 such officer 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 such officer deems necessary in
order for the Corporation to exercise those powers and rights. [As amended
effective March 16, 2006.]
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.
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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 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
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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 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 such person, or a person of whom such person 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
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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 scope and effect as the
foregoing indemnification of present and former directors and officers. [As
amended effective March 16, 2006.]
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 such person’s 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. [As amended effective March 16, 2006.]
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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 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 such person 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. [As amended effective March 16, 2006.]
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:
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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
until June 30, 2006; thereafter, the fiscal year of the Corporation shall be
as fixed by the Board of Directors. {As amended effective June 8, 2006.]
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 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 such person’s 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. [As amended
effective March 16, 2006.]
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.
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SECRETARY’S CERTIFICATE
The undersigned Secretary
of MGP Ingredients, Inc. (the “Company”) hereby certifies on September 7, 2006
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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