UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 7, 2016

Capella Education Company
(Exact name of Registrant as specified in its charter)

 
									
	 	Minnesota	 	001-33140	 	41-1717955	 		
	 	(State or other jurisdiction
of incorporation)	 	(Commission
File Number)	 	(IRS Employer
Identification No.)	 		

225 South 6 th Street, 9 th Floor
Minneapolis, Minnesota	 	55402	
(Address of principal executive offices)	 	(Zip Code)	
Registrant’s telephone number, including area code: (888) 227-3552

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
 	☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)	
 
 	☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)	
 
 	☐	Pre-commencement communications pursuant to Rule 14d 2(b) under the Exchange Act (17 CFR 240.14d 2(b))	
 
 	☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))	

 

Item 5.03.	Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.	
On December 7, 2016, the Board of Directors of Capella Education Company (the “Company”), upon recommendation of the Governance Committee, approved amendments to the Company’s Second Amended and Restated Bylaws designed to modernize the bylaws and reflect certain amendments to the Minnesota Business Corporation Act.
The amendments include the following, among other more clerical revisions: (i) clarifying that the Company has the flexibility, but not the requirement, to hold “hybrid-virtual” shareholder meetings, in addition to “virtual” meetings, (ii) confirming that certain notices may be given by authenticated electronic communication, (iii) confirming the ability of the Board committees to create subcommittees and (iv) delegating the power of the Board to appoint and remove corporate officers, other than the Chief Financial Officer and other executive officers, to the Chief Executive Officer.
The Third Amended and Restated Bylaws incorporating the amendments described above are filed as Exhibit 3.2 hereto.
 
Item 9.01.	Financial Statements and Exhibits.	
 
(d)	Exhibits.	
 
 	3.2	Third Amended and Restated Bylaws	

SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

	 		 	CAPELLA EDUCATION COMPANY	
				
Date: December 13, 2016	 		 	By	 	/s/ Renee L. Jackson	
	 		 		 	Renee L. Jackson	
	 		 		 	Vice President and General Counsel	

Exhibit 3.2
THIRD AMENDED AND RESTATED BYLAWS
OF
CAPELLA EDUCATION COMPANY
(EFFECTIVE AS OF DECEMBER 7, 2016)
I. SHAREHOLDERS
Section 1.01      Place of Meetings . Each meeting of the shareholders shall be held at the principal executive office of Capella Education Company (the “Corporation”) or at such other place as may be designated by the Board of Directors of the Corporation (the “Board”) or the Chief Executive Officer. But any meeting called by or at the demand of a shareholder or shareholders shall be held in the county where the principal executive office of the Corporation is located. The Board may determine that shareholders not physically present in person or by proxy at a meeting of the shareholders may, by means of remote communication, participate in a meeting of the shareholders held at a designated place. The Board may also determine that a meeting of the shareholders shall not be held at a physical place, but instead solely by means of remote communication. Participation by remote communication constitutes presence at the meeting.
Section 1.02      Regular Meetings . Regular meetings of the shareholders may be held on an annual or other less frequent basis as determined by the Board; provided, however, that if a regular meeting has not been held during the immediately preceding 15 months, a shareholder or shareholders holding 3% or more of the voting power of all shares entitled to vote may demand a regular meeting of shareholders by written demand given to the Chief Executive Officer or Chief Financial Officer of the Corporation. At each regular meeting the shareholders shall elect qualified successors for directors who serve for an indefinite term or whose terms have expired or are due to expire within six months after the date of the meeting, subject to the provisions of Section 1.13, and may transact any other business, provided, however, that no business with respect to which special notice is required by law shall be transacted unless such notice shall have been given.
Section 1.03      Special Meetings . A special meeting of the shareholders may be called for any purpose or purposes at any time by (i) the Chief Executive Officer, (ii) the Chief Financial Officer, (iii) the Board or any two or more members thereof, or (iv) one or more shareholders holding not less than 10% of the voting power of all shares of the Corporation entitled to vote (except that a special meeting for the purpose of considering any action to directly or indirectly facilitate or effect a business combination, including any action to change or otherwise affect the composition of the Board for that purpose, must be called by shareholders holding not less than 25% of the voting power of all shares of the Corporation entitled to vote), who shall demand such special meeting by written notice given to the Chief Executive Officer or the Chief Financial Officer of the Corporation specifying the purposes of such meeting.
Section 1.04      Meetings Held Upon Shareholder Demand . Within 30 days after receipt of a demand by the Chief Executive Officer or the Chief Financial Officer of the Corporation from any shareholder or shareholders entitled to call a meeting of the shareholders, it shall be the duty of the Board to cause a special or regular meeting of shareholders, as the case may be, to be duly called and held on notice no later than 90 days after receipt of such demand. If the Board fails to cause such a meeting to be called and held as required by this Section 1.04, the shareholder or shareholders making the demand may call the meeting by giving notice as provided in Section 1.06 hereof at the expense of the Corporation.
Section 1.05      Adjournments . Any meeting of the shareholders may be adjourned from time to time to another date, time and place. If any meeting of the shareholders is so adjourned, no notice as to such adjourned meeting need be given if the adjourned meeting is to be held not more than 120 days after the date fixed for the original meeting and the date, time and place at which the meeting will be reconvened are announced at the time of adjournment.
Section 1.06      Notice of Meetings . Unless otherwise required by law, written notice of each meeting of the shareholders, stating the date, time, and place and, in the case of a special meeting, the purpose or purposes, shall be

given at least 10 days and not more than 60 days before the meeting to every holder of shares entitled to vote at such meeting except as specified in Section 1.05 or as otherwise permitted by law. Notice may be given to a shareholder by means of electronic communication if the requirements of Minnesota Statutes Section 302A.436, Subdivision 5, as amended from time to time, are met. Notice to a shareholder is also effectively given if the notice is addressed to the shareholder or a group of shareholders in a manner permitted by the rules and regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), so long as the Corporation has first received the written or implied consent required by those rules and regulations. The business transacted at a special meeting of shareholders is limited to the purposes stated in the notice of the meeting.
Section 1.07      Waiver of Notice . A shareholder may waive notice of the date, time, place, or purpose of a meeting of shareholders. A waiver of notice by a shareholder entitled to notice is effective whether given before, at, or after the meeting, and whether given in writing, orally, by authenticated electronic communication, or by attendance. Attendance by a shareholder at a meeting, including attendance by means of remote communication, is a waiver of notice of that meeting, unless the shareholder objects at the beginning of the meeting to the transaction of business because the meeting is not lawfully called or convened, or objects before a vote on an item of business because the item may not lawfully be considered at that meeting and does not participate in the consideration of the item at that meeting.
Section 1.08      Voting Rights .
Subdivision 1. A shareholder shall have one vote for each share held which is entitled to vote. Except as otherwise required by law, a holder of shares entitled to vote may vote any portion of the shares in any way the shareholder chooses. If a shareholder votes without designating the proportion or number of shares voted in a particular way, the shareholder is deemed to have voted all of the shares in that way.
Subdivision 2. The Board may fix, or authorize an officer to fix, a date not more than 60 days before the date of a meeting of shareholders as the date for the determination of the holders of shares entitled to notice of and entitled to vote at the meeting. When a date is so fixed, only shareholders on that date are entitled to notice of and permitted to vote at that meeting of shareholders.
Section 1.09      Proxies . A shareholder may cast or authorize the casting of a vote by (a) filing a written appointment of a proxy, signed by the shareholder, with an officer of the Corporation at or before the meeting at which the appointment is to be effective, or (b) by telephonic transmission or authenticated electronic communication, whether or not accompanied by written instructions of the shareholder, of an appointment of a proxy with the Corporation or the Corporation’s duly authorized agent at or before the meeting at which the appointment is to be effective. The telephonic transmission or authenticated electronic communication must set forth or be submitted with information from which it can be determined that the appointment was authorized by the shareholder. Any copy, facsimile telecommunication, or other reproduction of the original of either the writing or transmission may be used in lieu of the original, provided that it is a complete and legible reproduction of the entire original.
Section 1.10      Quorum . The holders of a majority of the voting power of the shares entitled to vote at a shareholders meeting are a quorum for the transaction of business. If a quorum is present when a duly called or held meeting is convened, the shareholders present may continue to transact business until adjournment, even though the withdrawal of a number of the shareholders originally present leaves less than the proportion or number otherwise required for a quorum.
Section 1.11      Acts of Shareholders .
Subdivision 1. Except as otherwise required by law or specified in the Articles of Incorporation of the Corporation, the shareholders shall take action by the affirmative vote of the holders of the greater of (i) a majority of the voting power of the shares present and entitled to vote on that item of business or (ii) a majority of the voting power of the minimum number of shares entitled to vote that would constitute a quorum for the transaction of business at a duly held meeting of shareholders.
 
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Subdivision 2. A shareholder voting by proxy authorized to vote on less than all items of business considered at the meeting shall be considered to be present and entitled to vote only with respect to those items of business for which the proxy has authority to vote. A proxy who is given authority by a shareholder who abstains with respect to an item of business shall be considered to have authority to vote on that item of business.
Section 1.12      Action Without a Meeting . Any action required or permitted to be taken at a meeting of the shareholders of the Corporation may be taken without a meeting by written action signed, or consented to by authenticated electronic communication, by all of the shareholders entitled to vote on that action. The written action is effective when it has been signed, or consented to by authenticated electronic communication, by all of those shareholders, unless a different effective time is provided in the written action.
Section 1.13      Nomination of Director Candidates . Only persons who are nominated in accordance with the procedures set forth in this Section 1.13 shall be eligible for election as directors. Nominations of persons for election to the Board may be made at a meeting of shareholders (i) by or at the direction of the Board, or (ii) by any shareholder of the Corporation entitled to vote (and, with respect to any beneficial owner, if different, on whose behalf any nomination is made, only if such beneficial owner was the beneficial owner of shares of the Corporation) both at the time of giving notice and at the time of the meeting, who complies with the notice procedures hereinafter set forth in this Section 1.13.
Subdivision 1. Timing of Notice. Nominations by shareholders shall be made pursuant to timely notice in writing to the Secretary of the Corporation. To be timely, a shareholder’s notice of nominations to be made at an annual meeting of shareholders must be delivered to the Secretary of the Corporation, or mailed and received by the Secretary of the Corporation at the principal executive office of the Corporation, not more than 120 days and not less than 90 days before the first anniversary of the date of the preceding year’s annual meeting of shareholders. If, however, the date of the annual meeting of shareholders is more than 30 days before such anniversary date, notice by a shareholder shall be timely only if so delivered or so mailed and received not more than 120 days and not less than 90 days before such annual meeting or, if later, within 10 days after the first public announcement of the date of such annual meeting. If a special meeting of shareholders of the Corporation is called in accordance with Section 1.03 for the purpose of electing one or more directors to the Board or if a regular meeting other than an annual meeting is held, for a shareholder’s notice of nominations to be timely it must be delivered to the Secretary of the Corporation, or mailed and received by the Secretary of the Corporation at the principal executive office of the Corporation, not more than 120 days and not less than 90 days before such special meeting or such regular meeting or, if later, within 10 days after the first public announcement of the date of such special meeting or such regular meeting. Except to the extent otherwise required by law, the adjournment of a regular or special meeting of shareholders shall not commence a new time period for the giving of a shareholder’s notice as described above.
Subdivision 2. Content of Notice. A shareholder’s notice to the Corporation of nominations for a regular or special meeting of shareholders shall set forth:
(i) as to each Nominating Person (as defined below): (a) Shareholder Information and any Disclosable Interests (each as defined below), (b) any material interest of the Nominating Person in such nomination, (c) a description of all arrangements, relationships or understandings between or among any of (x) the Nominating Person, (y) each nominee, and (z) any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by a Nominating Person, and (d) a description of the reason for making such nomination; and
(ii) as to each person whom the shareholder proposes to nominate for election or re-election as a director: (a) such person’s name, age, business address and residence address and principal occupation or employment, (b) all other information relating to such person that is required to be disclosed in solicitations of proxies for election of directors, or that is otherwise required, pursuant to Regulation 14A under the Exchange Act, and (c) such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected. At the request of the Board, any person nominated by the Board for election as a director shall furnish to the Secretary of the Corporation the information required to be set forth in a shareholder’s notice of nomination that pertains to a nominee.
 
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For the purposes of this Section 1.13, the term “Nominating Person” means (A) the shareholder providing the notice of a proposed nomination to be brought before a meeting, (B) the beneficial owner or beneficial owners, if different, on whose behalf the proposed nomination to be brought before a meeting is made, and (C) any affiliate or associate (for purposes of these Bylaws, each within the meaning of Rule 12b-2 under the Exchange Act) of such shareholder or beneficial owner.
For the purposes of this Section 1.13, the term “Shareholder Information” means the name and address of such Nominating Person (including, if applicable, the name and address that appear on the Corporation’s books); and (b) the class or series and number of shares of capital stock of the Corporation that are, directly or indirectly, owned of record or beneficially (within the meaning of Rule 13d-3 under the Exchange Act) by such Nominating Person, except that such Nominating Person shall in all events be deemed to beneficially own any shares of any class or series of the capital stock of the Corporation as to which such Nominating Person has a right to acquire beneficial ownership at any time in the future.
For the purposes of this Section 1.13, the term “Disclosable Interests” means as to each Nominating Person: (a) any derivative, swap or other transaction or series of transactions engaged in, directly or indirectly, by such Nominating Person, the purpose or effect of which is to give such Nominating Person economic risk similar to ownership of shares of any class or series of the capital stock of the Corporation, including due to the fact that the value of such derivative, swap or other transaction is determined by reference to the price, value or volatility of any shares of any class or series of the capital stock of the Corporation, or which derivative, swap or other transactions provide, directly or indirectly, the opportunity to profit from any increase in the price or value of shares of any class or series of the capital stock of the Corporation (“Synthetic Equity Interests”), which such Synthetic Equity Interests shall be disclosed without regard to whether (x) such derivative, swap or other transactions convey any voting rights in such shares to such Nominating Person, (y) the derivative, swap or other transactions are required to be, or are capable of being, settled through delivery of such shares or (z) such Nominating Person may have entered into other transactions that hedge or mitigate the economic effect of such derivative, swap or other transaction; (b) any proxy (other than a revocable proxy or consent given in response to a solicitation made pursuant to, and in accordance with, Section 14(a) of the Exchange Act by way of a solicitation statement filed on Schedule 14A), agreement, arrangement, understanding or relationship pursuant to which such Nominating Person has or shares a right to vote any shares of any class or series of the capital stock of the Corporation; (c) any agreement, arrangement, understanding or relationship, including any repurchase or similar so-called “stock borrowing” agreement or arrangement, engaged in, directly or indirectly, by such Nominating Person, the purpose or effect of which is to mitigate loss to, reduce the economic risk (of ownership or otherwise) of shares of any class or series of the capital stock of the Corporation by, manage the risk of share price changes for, or increase or decrease the voting power of, such Nominating Person with respect to the shares of any class or series of the capital stock of the Corporation, or which provides, directly or indirectly, the opportunity to profit from any decrease in the price or value of the shares of any class or series of the capital stock of the Corporation (“Short Interests”); (d) any performance related fees (other than an asset based fee) that such Nominating Person is entitled to based on any increase or decrease in the price or value of shares of any class or series of the capital stock of the Corporation, or any Synthetic Equity Interests or Short Interests, if any; and (e) any other information relating to such Nominating Person that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies or consents by such Nominating Person in support of the nomination for election of Directors or the other business proposed to be conducted at the meeting pursuant to Section 14(a) of the Exchange Act; provided, however, that such Disclosable Interests shall not include any such disclosures with respect to the ordinary course business activities of any broker, dealer, commercial bank, trust company or other nominee who is a Nominating Person solely as a result of being the shareholder of record directed to prepare and submit the information required by this Section 1.13 (or Section 1.14 as applicable) on behalf of a beneficial owner);
Subdivision 3. Consequences of Failure to Give Timely Notice. Notwithstanding anything in these Bylaws to the contrary, no person shall be eligible for election as a director of the Corporation unless nominated in accordance with the procedures set forth in this Section 1.13. The officer of the Corporation chairing the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the procedures prescribed in this Section 1.13 and, if such officer should so determine, such officer shall so declare to the meeting, and the defective nomination shall be disregarded.
 
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Subdivision 4. Public Announcement. For purposes of this Section 1.13 and Section 1.14, “public announcement” means disclosure (i) when made in a press release reported by the Dow Jones News Service, Associated Press, or comparable national news service, (ii) when filed in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act, or (iii) when mailed as the notice of the meeting pursuant to Section 1.06.
Section 1.14      Advance Notice of Shareholder Proposals . As provided in Section 1.03, the business conducted at any special meeting of shareholders of the Corporation shall be limited to the purposes stated in the notice of the special meeting pursuant to Section 1.06. At any regular meeting of shareholders of the Corporation, only such business (other than the nomination and election of directors, which shall be subject to Section 1.13) may be conducted as shall be appropriate for consideration at the meeting of shareholders and as shall have been brought before the meeting (i) by or at the direction of the Board, or (ii) by any shareholder of the Corporation entitled to vote (and, with respect to any beneficial owner, if different, on whose behalf any proposal is made, only if such beneficial owner was the beneficial owner of shares of the Corporation) both at the time of giving notice and at the time of such meeting who complies with the notice procedures hereinafter set forth in this Section 1.14.
Subdivision 1. Timing of Notice. For such business to be properly brought before any regular meeting by a shareholder, the shareholder must have given timely notice thereof in writing to the Secretary of the Corporation. To be timely, a shareholder’s notice of any such business to be conducted at an annual meeting must be delivered to the Secretary of the Corporation, or mailed and received by the Secretary of the Corporation at the principal executive office of the Corporation, not more than 120 days and not less than 90 days before the first anniversary of the date of the preceding year’s annual meeting of shareholders. If, however, the date of the annual meeting of shareholders is more than 30 days before such anniversary date, notice by a shareholder shall be timely only if so delivered or so mailed and received not more than 120 days and not less than 90 days before such annual meeting or, if later, within 10 days after the first public announcement of the date of such annual meeting. To be timely, a shareholder’s notice of any such business to be conducted at a regular meeting other than an annual meeting must be delivered to the Secretary of the Corporation, or mailed and received by the Secretary of the Corporation at the principal executive office of the Corporation, not more than 120 days and not less than 90 days before such regular meeting or, if later, within 10 days after the first public announcement of the date of such regular meeting. Except to the extent otherwise required by law, the adjournment of a regular meeting of shareholders shall not commence a new time period for the giving of a shareholder’s notice as required above.
Subdivision 2. Content of Notice. A shareholder’s notice to the Corporation shall set forth:
(i) as to each Proposing Person (as defined below), Shareholder Information and any Disclosable Interests (as defined in Subdivision 2 of Section 1.13, except that for purposes of this Section 1.14 the term “Proposing Person” shall be substituted for the term “Nominating Person” in all places it appears in Subdivision 2 of Section 1.13);
(ii) as to the proposed business: (a) a reasonably brief description of the business desired to be brought before the meeting of the shareholders, the reasons for conducting such business at the annual meeting and any material interest in such business of any Proposing Person, and (b) the text of the proposal or business (including the text of any resolutions proposed for consideration); and
(iii) a representation that the shareholder is a holder of record of shares entitled to vote at the meeting and intends to appear in person or by proxy at the meeting to make the proposal.
For the purposes of this Section 1.14, the term “Proposing Person” means (A) the shareholder providing the notice of business proposed to be brought before a meeting, (B) the beneficial owner or beneficial owners, if different, on whose behalf the business proposed to be brought before a meeting is made, and (C) any affiliate or associate (for purposes of these Bylaws, each within the meaning of Rule 12b-2 under the Exchange Act) of such shareholder or beneficial owner.
Subdivision 3. Consequences of Failure to Give Timely Notice. Notwithstanding anything in these Bylaws to the contrary, no business (other than the nomination and election of directors) shall be conducted at any regular meeting except in accordance with the procedures set forth in this Section 1.14. The officer of the
 
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Corporation chairing the meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting in accordance with the procedures described in this Section 1.14 and, if such officer should so determine, such officer shall so declare to the meeting, and any such business not properly brought before the meeting shall not be transacted. Nothing in this Section 1.14 shall be deemed to preclude discussion by any shareholder of any business properly brought before the meeting in accordance with these Bylaws.
Subdivision 4. Compliance with Law. Notwithstanding the foregoing provisions of this Section 1.14, a shareholder shall also comply with all applicable requirements of Minnesota law and the Exchange Act, and the rules and regulations thereunder with respect to the matters set forth in this Section 1.14.
Section 1.15      Duty to Update in Connection with a Regular or Annual Meeting . A shareholder providing notice of a proposed nomination or other business proposed to be brought before a regular or annual meeting (whether given pursuant to Section 1.13 or 1.14 of these Bylaws) shall further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice shall be true and correct as of the record date for the meeting and the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary of the Corporation at the principal executive offices of the Corporation not later than five (5) business days after the record date for the meeting (in each case of the update and supplement required to be made as of the record date), and not later than eight (8) business days prior to the date for the meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned or postponed) (in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting).
Section 1.16      Section 14a-8 under the Exchange Act . Sections 1.13, 1.14 and 1.15 are expressly intended to apply to any business proposed to be brought before an annual meeting of shareholders other than any proposal made pursuant to Rule 14a-8 under the Exchange Act. In addition to the requirements of Sections 1.13, 1.14 and 1.15 with respect to any business proposed to be brought before an annual meeting, each Proposing Person or Nominating Person, as applicable, shall comply with all applicable requirements of the Exchange Act with respect to any such business. Nothing in Sections 1.13, 1.14 or 1.15 shall be deemed to affect the rights of shareholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.
II. DIRECTORS
Section 2.01      Number; Qualifications . Except as authorized by the shareholders pursuant to a shareholder control agreement or unanimous affirmative vote, the business and affairs of the Corporation shall be managed by or under the direction of a Board of one or more directors. Directors shall be natural persons. The number of directors to constitute the Board shall be determined from time to time by resolution of the Board. Directors need not be shareholders.
Section 2.02      Term . Each director shall serve for an indefinite term that expires at the next regular meeting of the shareholders. A director shall hold office until a successor is elected and has qualified or until the earlier death, resignation, removal or disqualification of the director.
Section 2.03      Vacancies . Vacancies on the Board resulting from the death, resignation, removal or disqualification of a director may be filled by the affirmative vote of a majority of the remaining members of the Board, though less than a quorum. Vacancies on the Board resulting from newly created directorships may be filled by the affirmative vote of a majority of the directors serving at the time such directorships are created. Each person elected to fill a vacancy shall hold office until a qualified successor is elected by the shareholders at the next regular meeting or at any special meeting duly called for that purpose.
Section 2.04      Place of Meetings . Each meeting of the Board shall be held at the principal executive office of the Corporation or at such other place as may be designated from time to time by a majority of the members of the Board or by the Chief Executive Officer. The Board may determine that a meeting of the Board not be held at a physical place, but instead solely by means of remote communication through which the directors may participate with each other during the meeting.
 
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Section 2.05      Regular Meetings . Regular meetings of the Board for the election of officers and the transaction of any other business shall be held at such time and place as the Board shall determine. Directors shall receive not less than two days’ notice of the date, time and place of any regular meeting, provided that when notice is mailed, at least four days’ notice shall be given.
Section 2.06      Special Meetings . A special meeting of the Board may be called for any purpose or purposes at any time by any member of the Board by giving not less than two days’ notice to all directors of the date, time and place of the meeting, provided that when notice is mailed, at least four days’ notice shall be given. The notice need not state the purpose of the meeting.
Section 2.07      Waiver of Notice; Previously Scheduled Meetings .
Subdivision 1. A director of the Corporation may waive notice of the date, time and place of a meeting of the Board. A waiver of notice by a director entitled to notice is effective whether given before, at or after the meeting, and whether given in writing, orally, by authenticated electronic communication or by attendance. Attendance by a director at a meeting is a waiver of notice of that meeting, unless the director objects at the beginning of the meeting to the transaction of business because the meeting is not lawfully called or convened and thereafter does not participate in the meeting.
Subdivision 2. If the day or date, time and place of a Board meeting have been provided herein or announced at a previous meeting of the Board, no notice is required. Notice of an adjourned meeting need not be given other than by announcement at the meeting at which adjournment is taken of the date, time and place at which the meeting will be reconvened.
Section 2.08      Quorum . The presence in person of a majority of the directors currently holding office shall be necessary to constitute a quorum for the transaction of business. In the absence of a quorum, a majority of the directors present may adjourn a meeting from time to time without further notice until a quorum is present. If a quorum is present when a duly called or held meeting is convened, the directors present may continue to transact business until adjournment, even though the withdrawal of a number of the directors originally present leaves less than the proportion or number otherwise required for a quorum.
Section 2.09      Acts of Board . Except as otherwise required by law or specified in the Articles of Incorporation of the Corporation, the Board shall take action by the affirmative vote of the greater of (a) a majority of the directors present at a duly held meeting at the time the action is taken or (b) a majority of the minimum proportion or number of directors that would constitute a quorum for the transaction of business at the meeting.
Section 2.10      Participation by Remote Communication . A director may participate in a Board meeting by conference telephone, or, if authorized by the Board, by any other means of remote communication through which the director, other directors so participating, and all directors physically present at the meeting may participate with each other during the meeting. A director so participating is deemed present at the meeting.
Section 2.11      Absent Directors . A director of the Corporation may give advance written consent or opposition to a proposal to be acted on at a Board meeting. If the director is not present at the meeting, consent or opposition to a proposal does not constitute presence for purposes of determining the existence of a quorum, but consent or opposition shall be counted as the vote of a director present at the meeting in favor of or against the proposal and shall be entered in the minutes or other record of action at the meeting, if the proposal acted on at the meeting is substantially the same or has substantially the same effect as the proposal to which the director has consented or objected.
Section 2.12      Action Without a Meeting . An action required or permitted to be taken at a Board meeting may be taken without a meeting by written action signed, or consented to by authenticated electronic communication, by all of the directors. Any action, other than an action requiring shareholder approval, if the Articles of Incorporation so provide, may be taken by written action signed, or consented to by authenticated electronic communication, by the number of directors that would be required to take the same action at a meeting of the Board at which all directors were present. The written action is effective when signed, or consented to by authenticated electronic communication, by the required number of directors, unless a different effective time is provided in the written action. When written action is permitted to be taken by less than all directors, all directors shall be notified immediately of its text and effective date.
 
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Section 2.13      Committees . Subdivision 1. A resolution approved by the affirmative vote of a majority of the Board may establish committees having the authority of the Board in the management of the business of the Corporation only to the extent provided in the resolution. Committees shall be subject at all times to the direction and control of the Board, except as provided in Section 2.14 or otherwise provided by law.
Subdivision 2. A committee shall consist of one or more natural persons, who need not be directors, appointed by affirmative vote of a majority of the directors present at a duly held Board meeting.
Subdivision 3. Section 2.04 and Sections 2.06 to 2.12 hereof shall apply to committees and members of committees to the same extent as those sections apply to the Board and directors.
Subdivision 4. Minutes, if any, of committee meetings shall be made available upon request to members of the committee and to any director.
Subdivision 5. Unless otherwise provided in the Articles of Incorporation of the Corporation or the resolution of the Board establishing the committee, a committee may create one or more subcommittees, each consisting of one or more members of the committee, and may delegate to a subcommittee any or all of the authority of the committee. In the Bylaws of the Corporation, unless the language or context clearly indicates that a different meaning is intended, any reference to a committee is deemed to include a subcommittee, and any reference to a committee member is deemed to include a subcommittee member.
Section 2.14      Special Litigation Committee . Pursuant to the procedure set forth in Section 2.13, the Board may establish a committee composed of one or more independent directors or other independent persons to determine whether it is in the best interests of the Corporation to consider legal rights or remedies of the Corporation and whether those rights and remedies should be pursued. The committee, once established, is not subject to the direction or control of, or (unless required by law) termination by, the Board. To the extent permitted by law, a vacancy on the committee may be filled by a majority vote of the remaining committee members. The good faith determinations of the committee are binding upon the Corporation and its directors, officers and shareholders to the extent permitted by law. The committee terminates when it issues a written report of its determinations to the Board.
Section 2.15      Compensation . The Board may fix the compensation, if any, of directors.
III. OFFICERS
Section 3.01      Number and Designation . The Corporation shall have one or more natural persons exercising the functions of the offices of Chief Executive Officer and Chief Financial Officer. The Board may elect or appoint such other officers or agents as it deems necessary for the operation and management of the Corporation, with such powers, rights, duties and responsibilities as may be determined by the Board, including, without limitation, a President, one or more Vice Presidents, a Secretary and a Treasurer, each of whom shall have the powers, rights, duties and responsibilities set forth in these Bylaws unless otherwise determined by the Board. The Chief Executive Officer may also appoint, and may determine the powers, rights, duties and responsibilities of, such other officers, other than the Chief Financial Officer or any other executive officer, as the Chief Executive Officer deems necessary for the operation and management of the Corporation. Any of the offices or functions of those offices may be held by the same person.
Section 3.02      Chief Executive Officer . Unless provided otherwise by a resolution adopted by the Board, the Chief Executive Officer (i) shall have general active management of the business of the Corporation, (ii) shall, when present, preside at all meetings of the shareholders and Board, (iii) shall see that all orders and resolutions of the Board are carried into effect, (iv) may maintain records of and certify proceedings of the Board and shareholders, and (v) shall perform such other duties as may from time to time be assigned by the Board.
 
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Section 3.03      Chief Financial Officer . Unless provided otherwise by a resolution adopted by the Board, the Chief Financial Officer (i) shall keep accurate financial records for the Corporation, (ii) shall deposit all monies, drafts and checks in the name of and to the credit of the Corporation in such banks and depositories as the Board shall designate from time to time, (iii) shall endorse for deposit all notes, checks and drafts received by the Corporation as ordered by the Board, making proper vouchers therefore, (iv) shall disburse corporate funds and issue checks and drafts in the name of the Corporation, as ordered by the Board (v) shall render to the Chief Executive Officer and the Board, whenever requested, an account of all of such officer’s transactions as Chief Financial Officer and of the financial condition of the Corporation, and (vi) shall perform such other duties as may be prescribed by the Board or the Chief Executive Officer from time to time.
Section 3.04      President . Unless otherwise determined by the Board, the President shall be the Chief Executive Officer of the Corporation. If an officer other than the President is designated Chief Executive Officer, the President shall perform such duties as may from time to time be assigned by the Board.
Section 3.05      Vice Presidents . Any one or more Vice Presidents, if any, may be designated by the Board as Executive Vice Presidents or Senior Vice Presidents. During the absence or disability of the President, it shall be the duty of the highest ranking Executive Vice President, and, in the absence of any such Vice President, it shall be the duty of the highest ranking Senior Vice President or other Vice President, who shall be present at the time and able to act, to perform the duties of the President. The determination of who is the highest ranking of two or more persons holding the same office shall, in the absence of specific designation of order of rank by the Board, be made on the basis of the earliest date of appointment or election, or, in the event of simultaneous appointment or election, on the basis of the longest continuous employment by the Corporation.
Section 3.06      Secretary . The Secretary, unless otherwise determined by the Board, shall attend all meetings of the shareholders and all meetings of the Board, shall record or cause to be recorded all proceedings thereof in a book to be kept for that purpose, and may certify such proceedings. Except as otherwise required or permitted by law or by these Bylaws, the Secretary shall give or cause to be given notice of all meetings of the shareholders and all meetings of the Board.
Section 3.07      Treasurer . Unless otherwise determined by the Board, the Treasurer shall be the Chief Financial Officer of the Corporation. If an officer other than the Treasurer is designated Chief Financial Officer, the Treasurer shall perform such duties as may from time to time be assigned by the Board.
Section 3.08      Authority and Duties . In addition to the foregoing authority and duties, all officers of the Corporation shall respectively have such authority and perform such duties in the management of the business of the Corporation as may be designated from time to time by the Board. Unless prohibited by a resolution approved by the affirmative vote of a majority of the directors present, an officer elected or appointed by the Board may, without the approval of the Board, delegate some or all of the duties and powers of an office to other persons.
Section 3.09      Term .
Subdivision 1. All officers of the Corporation shall hold office until their respective successors are chosen and have qualified or until their earlier death, resignation or removal.
Subdivision 2. An officer may resign at any time by giving written notice to the Corporation. The resignation is effective without acceptance when the notice is given to the Corporation, unless a later effective date is specified in the notice.
Subdivision 3. An officer may be removed at any time, with or without cause, by a resolution approved by the affirmative vote of a majority of the directors present at a duly held Board meeting. An officer, other than the Chief Financial Officer and any other executive officer, also may be removed at any time, with or without cause, by the Chief Executive Officer.
 
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Subdivision 4. A vacancy in an office because of death, resignation, removal, disqualification or other cause may, or in the case of a vacancy in the office of Chief Executive Officer or Chief Financial Officer shall, be filled for the unexpired portion of the term by the Board.
Section 3.10      Salaries . The salaries of all officers of the Corporation shall be fixed by the Board or by the Chief Executive Officer if authorized by the Board.
IV. INDEMNIFICATION
Section 4.01      Indemnification . The Corporation shall indemnify its officers and directors for such expenses and liabilities, in such manner, under such circumstances, and to such extent, as required or permitted by Minnesota Statutes, Section 302A.521, as amended from time to time, or as required or permitted by other provisions of law.
Section 4.02      Insurance . The Corporation may purchase and maintain insurance on behalf of any person in such person’s official capacity against any liability asserted against and incurred by such person in or arising from that capacity, whether or not the Corporation would otherwise be required to indemnify the person against the liability.
V. SHARES
Section 5.01      Certificated and Uncertificated Shares .
Subdivision 1. The shares of the Corporation shall be either certificated shares or uncertificated shares.
Subdivision 2. Each certificate of shares of the Corporation shall bear the corporate seal, if any, and shall be signed by the Chief Executive Officer, or the President or any Vice President, and the Chief Financial Officer, or the Secretary or any Assistant Secretary, but when a certificate is signed by a transfer agent or a registrar, the signature of any such officer and the corporate seal upon such certificate may be facsimiles, engraved or printed. If a person signs or has a facsimile signature placed upon a certificate while an officer, transfer agent or registrar of the Corporation, the certificate may be issued by the Corporation, even if the person has ceased to serve in that capacity before the certificate is issued, with the same effect as if the person had that capacity at the date of its issue.
Subdivision 3. A certificate representing shares issued by the Corporation shall, if the Corporation is authorized to issue shares of more than one class or series, set forth upon the face or back of the certificate, or shall state that the Corporation will furnish to any shareholder upon request and without charge, a full statement of the designations, preferences, limitations and relative rights of the shares of each class or series authorized to be issued, so far as they have been determined, and the authority of the Board to determine the relative rights and preferences of subsequent classes or series.
Subdivision 4. A resolution approved by the affirmative vote of a majority of the directors present at a duly held meeting of the Board may provide that some or all of any or all classes and series of the shares of the Corporation will be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until the certificate is surrendered to the Corporation.
Section 5.02      Declaration of Dividends and Other Distributions . The Board shall have the authority to declare dividends and other distributions upon the shares of the Corporation to the extent permitted by law.
Section 5.03      Transfer of Shares . Shares of the Corporation may be transferred only on the books of the Corporation by the holder thereof, in person or by such person’s attorney. In the case of certificated shares, shares shall be transferred only upon surrender and cancellation of certificates for a like number of shares. The Board, however, may appoint one or more transfer agents and registrars to maintain the share records of the Corporation and to effect transfers of shares.
Section 5.04      Record Date . The Board may fix a time, not exceeding 60 days preceding the date of the payment of any dividend or other distribution, as a record date for the determination of the shareholders entitled to receive
 
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payment of such dividend or other distribution, and in such case only shareholders of record on the date so fixed shall be entitled to receive payment of such dividend or other distribution, notwithstanding any transfer of any shares on the books of the Corporation after any record date so fixed.
VI. MISCELLANEOUS
Section 6.01      Execution of Instruments .
Subdivision 1. All deeds, mortgages, bonds, checks, contracts and other instruments pertaining to the business and affairs of the Corporation shall be signed on behalf of the Corporation by the Chief Executive Officer, President, Chief Financial Officer, or any Vice President, or the Secretary, or by such other person or persons as may be designated from time to time by the Board.
Subdivision 2. If a document must be executed by persons holding different offices or functions and one person holds such offices or exercises such functions, that person may execute the document in more than one capacity if the document indicates each such capacity.
Section 6.02      Advances . The Corporation may, without a vote of the directors, advance money to its directors, officers or employees to cover expenses that can reasonably be anticipated to be incurred by them in the performance of their duties and for which they would be entitled to reimbursement in the absence of an advance.
Section 6.03      Corporate Seal . The Corporation shall have no seal.
Section 6.04      Fiscal Year . The fiscal year of the Corporation shall be determined by the Board.
Section 6.05      Amendments . The Board shall have the power to adopt, amend or repeal the Bylaws of the Corporation, subject to the power of the shareholders to change or repeal the same, provided, however, that the Board shall not adopt, amend or repeal any Bylaw fixing a quorum for meetings of shareholders, prescribing procedures for removing directors or filling vacancies in the Board, or fixing the number of directors or their classifications, qualifications or terms of office, but may adopt or amend a Bylaw that increases the number of directors.
 
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