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 100 Commercial Street, Atchison, Atchison County, Kansas 66044.[As
amended effective March 3, 2005 and June 14, 2007]
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 certificated 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 agreements,
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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; June
__ 2007.]
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
certificated 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, certificated 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;
June __ 2007.]
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 or, if and to
the extent the Board of Directors determines, shall be uncertificated shares.
Notwithstanding any such determination by the Board of Directors, every
stockholder shall be entitled to a certificate or certificates of stock bearing
the holder’s name and number of shares and 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. [As amended June __, 2007]
Section 8.2. Transfers. — Certificated
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.
Uncertificated shares shall be transferred in the share register of the
Corporation upon an instruction originated by the appropriate person to
transfer the shares. 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. [As amended June __, 2007]
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
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thereof, except as otherwise provided by the laws of the State of
Kansas. [As corrected June ___, 2007)
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
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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 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
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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 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.
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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
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.
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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 June 14,
2007 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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