Exhibit 3.22
BY-LAWS OF
MIDWEST-MIX, INC.
OFFICES
Sec. 1. The registered office of the corporation shall be at 4041 Highway
Number 61, White Bear Lake, Minnesota, subject to change by the Board of
Directors as provided in the Minnesota Business Corporation Act. The corporation
shall have other offices at such places as the Board of Directors may from time
to time determine.
SEAL
Sec. 2. The corporate seal shall be in the form affixed hereto.
SHAREHOLDERS' MEETINGS
Sec. 3. All meetings of the shareholders shall be held at the registered
office of the corporation, except that any meeting may be held at any other
place within or without the State of Minnesota which is designated by the Board
of Directors, or by written consent of all the shareholders entitled to vote
thereat.
Sec. 4. The shareholders shall hold a meeting each calendar year, known as
the annual meeting, at which they shall elect directors and may transact any
other business. No business with respect to which special notice is required
shall be transacted unless such notice shall have been given. The time of the
annual meeting in each calendar year shall be fixed by the Board of Directors.
When the annual meeting is not held, or the directors are not elected thereat,
directors may be elected at a special meeting held for that purpose and it shall
be the duty of the president, vice president, or secretary, upon demand of any
shareholder entitled to vote, to call such special meeting.
Sec. 5. Special meetings of the shareholders may be called for any purpose
or purposes, at any time by the president, by the Board of Directors or any two
or more members thereof, or, in the manner hereinafter provided, by one or more
shareholders holding not less than one-tenth of the voting power of the
shareholders. Upon request in writing by registered mail or delivered in person
to the president, vice president or secretary, by any person or persons entitled
to call a meeting of shareholders, it shall be the duty of such officer
forthwith to cause notice to be given to the shareholders entitled to vote, of a
meeting to be held at such time as such officer may fix not less than ten nor
more than sixty days after the receipt of such request. If such notice shall not
be given within seven days after delivery or the date of mailing of such
request, the person or persons requesting the meeting may fix the time of
meeting and give notice in the manner provided by law, or these By-Laws. Unless
waived by all shareholders entitled to vote, business transacted at all special
meetings shall be confined to the purposes stated in the call.
Sec. 6. If any meeting of the shareholders be adjourned to another time or
place, no notice as to such adjourned meeting need be given other than
announcement at the meeting at which such adjournment is taken.
Sec. 7. Written notice of each meeting of shareholders stating the time
and place, and in case of a special meeting, the purpose, shall be given by the
secretary or other person charged with that duty to each shareholder entitled to
vote at such meeting. Such notice shall be mailed, postage prepaid, at least ten
days prior to the meeting to each such shareholder at his last known address as
the same appears upon the books of the corporation.
Sec. 8. Notice of the time, place and purpose of any meeting of the
shareholders may be waived in writing by any shareholder. Such waiver may be
given before or after the meeting and shall be filed with the secretary, or
entered upon the records of the meeting.
Sec. 9. The presence in person or by proxy of the holders of the majority
of shares entitled to vote at the meeting shall constitute a quorum for the
transaction of business. In the absence of a quorum, any meeting may be
adjourned from time to time. The shareholders present at a duly called or held
meeting at which a quorum is present may continue to transact business until
adjournment notwithstanding the withdrawal of enough shareholders to leave less
than a quorum.
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VOTING RIGHTS
Sec. 10. Every shareholder of record of common stock, or his legal
representatives, at the date fixed for the determination of the persons entitled
to vote at a meeting of shareholders, or, if no date has been fixed, then at the
date of the meeting, shall be entitled at such meeting to one vote for each
share of common stock standing in his name on the books of the corporation.
Sec. 11. The Board of Directors may fix a time not exceeding forty days
preceding the date of any meeting of shareholders, as a record date for the
determination of the shareholders entitled to notice of and to vote at such
meeting, and in such case only shareholders of record on the date so fixed, or
their legal representatives, shall be entitled to notice of and to vote at such
meeting, notwithstanding any transfer of any shares on the books of the
corporation after any record date so fixed. The Board of Directors may close the
books of the corporation against transfers of shares during the whole or any
part of such period.
Sec. 12. A shareholder may cast his vote in person or through proxy. The
appointment of a proxy shall be in writing, filed with the secretary at or
before the meeting. The authority of a proxy, if not coupled with an interest,
may be terminated at will. Unless otherwise provided in the appointment, the
proxy's authority shall cease eleven months after the appointment. A termination
of a proxy's authority by act of the shareholder shall be ineffective until
written notice of the termination has been given to the secretary. Unless
otherwise provided therein, an appointment filed with the secretary shall have
the effect of revoking all appointments of prior date.
Sec. 13. If a shareholder shall appoint two or more persons to act as
proxies, and if the instrument shall not otherwise provide, then a majority of
such persons present at the meeting, or if only one shall be present then that
one, shall have and may exercise all of the powers conferred by such instrument
upon all of the persons so appointed; and if such proxies be equally divided as
to the right and manner of voting in any particular case, the vote shall be
divided equally among the proxies.
Sec. l4. A person or persons holding shares in a representative or
fiduciary capacity may vote the same in person or by proxy. General or
discretionary power may be conferred on such proxy. Where shares are held
jointly by three or more
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representatives or fiduciaries, the will of the majority of them shall control
the manner of voting or the giving of a proxy, unless the instrument or order
appointing them otherwise directs.
Sec. 15. A proxy's authority shall not be revoked by the death or
incapacity of the maker unless before the vote is cast or the authority is
exercised, written notice of such death or incapacity is given to the
corporation.
Sec. 16. A transferee of pledged shares shall be regarded by the
corporation as the owner thereof unless the instrument of transfer discloses the
pledge. A person whose shares are transferred on the books of the corporation as
a disclosed pledge shall be entitled to vote unless in the instrument of
transfer the pledgor shall have expressly empowered the pledgee to vote thereon,
in which case only the pledgee or his proxy may represent such shares and vote
thereon.
Sec. 17. Any corporation owning shares in this corporation may vote the
same by its president or by proxy appointed by him unless some other person, by
resolution of its Board of Directors, shall be appointed to vote such shares in
which case such person shall be entitled to vote upon the production of a
certified copy of such resolution.
Sec. 18. The corporation shall not vote any share of its own issue
belonging to it, nor shall any such shares be counted in calculating the total
voting power of all shareholders of such corporation at any given time.
Sec. 19. Any action which may be taken at a meeting of the shareholders
may be taken without a meeting if authorized by a writing signed by all of the
holders of shares who would be entitled to a notice of a meeting for such
purpose. Whenever a certificate in respect of any such action is required to be
filed in the office of the Secretary of State, the officers signing the same
shall state therein that the action was effected in the manner aforesaid.
DIRECTORS
Sec. 20. The property and business of the corporation shall be managed by
a Board of Directors of not less than three and not more than seven in number
who need not be shareholders and who shall be elected by the shareholders;
provided, however, that during such time as all of the shares of the corporation
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are owned beneficially and of record by either one or two shareholders, the
number of directors may be less than three but not less than the number of
shareholders.
Sec. 21. Subject to the foregoing limitation as to number of directors,
the shareholders shall at each annual meeting fix the number of directors for
the ensuing year and elect the number of directors so fixed, by majority vote,
to serve for a period of one year or until their successors have been elected
and qualify.
Sec. 22. Vacancies in the Board of Directors shall be filled by the
remaining directors of the board, though less than a quorum, and each person so
elected shall be a director until his successor is elected by the shareholders
who may make such election at their next annual meeting or at any special
meeting duly called for that purpose.
Sec. 23. All meetings of the Board of Directors shall be held at the
registered office of the corporation except that any meeting may be held at such
place, whether in the State of Minnesota or elsewhere, as a majority of the
members of the board may from time to time appoint.
Sec. 24. The annual meeting of the Board of Directors shall be held
immediately following each annual meeting of shareholders, which meeting shall
be for the purposes of organization, for the election of officers, and the
transaction of such other business as may be brought before it. No notice need
be given of the annual meeting so held.
Sec. 25. Other meetings of the board may be called by the president, or if
he is absent or unable or refuses to act, by the vice president or any director,
at such time and place as may be determined upon. Such other meetings may also
be held periodically at such times and at such place as may be fixed from time
to time by the Board of Directors by resolution duly adopted.
Sec. 26. Notice shall be given to each director of the time and place of
each meeting of the board, in writing, personally, or by mail or telegram, at
least three days prior to the meeting, but any director may in writing, either
before or after the meeting, waive notice thereof; and without notice any
director by his attendance at and participation in the action taken at any
meetings, shall be deemed to have waived notice.
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Sec. 27. A majority of the Board of Directors shall be necessary to
constitute a quorum for the transaction of business. The acts of a majority of
the directors present at a meeting at which a quorum is present shall be the
acts of the Board of Directors.
Sec. 28. Any action which might be taken at a meeting of the Board of
Directors may be taken without a meeting if done in writing, signed by all of
the directors.
Sec. 29. The Board of Directors may, by unanimous affirmative action of
the entire board, designate two or more of their number to constitute an
executive committee, which, to the extent determined by unanimous affirmative
action by the entire board, shall have and exercise the authority of the board
in the management of the business of the corporation. Any such executive
committee shall act only in the interval between meetings of the board, and
shall be subject at all times to the control and direction of the board.
Sec. 30. The entire Board of Directors or any individual director may be
removed from office, with or without cause, by a vote of shareholders holding
the majority of the shares entitled to vote at an election of directors. In case
the board or any one or more directors be so removed, new directors may be
elected at the same meeting.
Sec. 31. The Board of Directors are authorized to issue shares of the
company to the full amount authorized by the Articles of Incorporation in such
amounts and at such times and for such consideration as may be determined by the
board by unanimous vote and may be permitted by law.
Sec. 32. The Board of Directors may make and alter by-laws, subject to the
power of the shareholders to change or repeal such by-laws, provided however,
the board shall not make or alter any by-law fixing their number,
qualifications, classifications, or term of office.
Sec. 33. In addition to the powers and authorities conferred by these
by-laws and the Articles of Incorporation, the Board of Directors may exercise
all such powers of the corporation, and do all such lawful acts and things as
are not by statute or by the Articles of Incorporation, or by these by-laws
directed or required to be exercised or done by the shareholders.
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OFFICERS
Sec. 34. The Board of Directors shall elect a president, not more than two
vice presidents, a secretary and a treasurer, who shall constitute the officers
of the corporation, and the board may appoint such other officers and agents as
it may deem necessary. The president shall be a director but shall hold office
until his successor is elected notwithstanding an earlier termination of his
office as director. No one of the other officers need be a director but a vice
president who is not a director shall not succeed to the office of president.
Any two of the offices specifically named above, except those of president and
vice president may be held by the same person. Said officers shall be elected
annually by the directors as soon as practicable following the annual meeting of
shareholders, and shall hold office for one year following their election or
until their successors are chosen and qualify.
Sec. 35. The duties of the officers shall be as follows:
The president shall be the chief executive officer of the corporation,
shall preside at all meetings, shall have general management of the business,
affairs, property and interests of the corporation, shall make reports to the
Board of Directors and shareholders, shall execute all contracts and other
instruments on behalf of the corporation, and shall have the general powers and
duties of supervision and management usually vested in the office of the
president of a corporation.
Any vice president may in the absence or disability of the president
perform the duties and exercise the powers of the president and shall perform
such other duties as the Board of Directors shall prescribe.
The secretary shall attend all meetings and record all votes and the
minutes of all proceedings in a book kept for that purpose, shall give or cause
to be given notice of all meetings, shall perform such other duties as may be
prescribed by the Board of Directors, shall keep in custody the seal of the
corporation and, when authorized by the board, affix the same to any instrument
requiring it, and shall perform all other duties incident to his office or
required by him to be performed by the Board of Directors.
The treasurer shall have custody of the corporate funds and securities,
shall keep full and accurate books of account, shall deposit all monies and
other valuable effects in the
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name and to the credit of the corporation in such depositories as may be
designated by the Board of Directors, shall disburse the funds of the
corporation in such manner as may be ordered by the board, shall render to the
Board of Directors whenever they may require it an account of all his
transactions as treasurer and of the financial conditions of the corporation,
and shall perform all other duties incident to his office or required by him to
be performed by the Board of Directors.
All of said officers shall also perform such duties in the management of
the business as may be determined by the Board of Directors from time to time.
Sec. 36. Any officer may be removed by the Board of Directors, with or
without cause. Such removal, however, shall be without prejudice to the contract
rights of the person so removed.
Sec. 37. The salaries of all officers and agents of the corporation shall
be fixed by the Board of Directors.
CERTIFICATES FOR SHARES
Sec. 38. The certificates of shares of the corporation shall be numbered
and shall be entered in the books of the corporation as they are issued. They
shall exhibit the holder's name, the number of shares, shall conform to legal
requirements, and shall be signed by the president or vice president, and the
secretary or treasurer.
Sec. 39. Any shareholder claiming a certificate of share to be lost or
destroyed shall make an affidavit or affirmation of that fact in such form as
the Board of Directors may require, and shall, if the directors so require, give
the corporation a bond of indemnity in form and with one or more sureties
satisfactory to the board, in at least double the value of the stock represented
by said certificate, whereupon a new certificate may be issued of the same tenor
and for the same number of shares as the one alleged to have been lost or
destroyed.
TRANSFER OF STOCKS
Sec. 40. Transfers of shares shall be made on the books of the
corporation only by the person named in the certificate or by attorney lawfully
constituted in writing and upon surrender of the certificate therefor properly
endorsed. The corporation shall be entitled to treat the holder of record of any
share or shares of stock as the holder in fact thereof and accordingly shall not
be bound to recognize any equitable or other claim to or interest in such share
or shares on the part
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of any other person, whether or not it shall have express or other notice
thereof, save as expressly provided by the laws of Minnesota or these By-Laws.
DIVIDENDS
Sec. 41. Dividends of the corporation, when earned, may be declared by
the Board of Directors, subject to the conditions and limitations imposed by the
statutes of Minnesota. Before payment of any dividend there may be set aside out
of the earned surplus of the corporation such sum or sums as the directors from
time to time in their absolute discretion deem expedient as a reserve to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the corporation, or for any other purpose which the directors shall
deem to be in the best interest of the corporation.
RECORDS AT REGISTERED OFFICE
Sec. 42. The corporation shall keep at its registered office the
following:
(a) A share register giving the names and addresses of the shareholders,
the number and class of shares held by each and the dates on which the
certificates therefor were issued.
(b) Records of all proceedings of shareholders and directors.
(c) By-Laws and all amendments thereto.
(d) Reports made to shareholders or any of them within the next preceding
three years.
(e) A statement, open to public inspection, of the names and postoffice
addresses of its principal officers.
LOANS
Sec. 43. The corporation shall not lend any of its assets to any officer
or director of the corporation, nor to any shareholder of the corporation on the
security of its shares. The corporation shall not take as security for any debt
a lien upon its shares unless such lien shall be taken to secure a debt
previously contracted.
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AMENDMENTS
Sec. 44. In addition to and in limitation of the power of the Board of
Directors to make and alter By-Laws, these By-Laws may be changed or repealed by
a majority vote of the shareholders present and represented at any annual
meeting or at any special meeting called for that purpose.
INDEMNIFICATION OF
DIRECTORS AND OFFICERS
Sec. 45. (a) The corporation shall indemnify any person who is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(whether brought by or in the right of the corporation or otherwise) by reason
of his being or having been a director or officer of the corporation, or serving
or having served at the request of the corporation as a director or officer of
another corporation, against all expenses and liabilities, including attorneys'
fees, costs, fines, judgments and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The corporation shall not, however, indemnify any person with
respect to any claim, issue or matter brought by or in the right of the
corporation as to which he shall have been adjudged to be liable for negligence
or misconduct in the performance of his duty to the corporation unless the court
in which such action or suit is brought or a district court to which application
is made shall determine that in view of all the circumstances of the case,
indemnification of such person would not be contrary to law. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of guilty or nolo contendere or its equivalent, shall not, of
itself, create the presumption that the person did not act in good faith and in
a manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) Every person referred to in subsection (a) of this by-law who has been
successful on the merits or otherwise in defense of any action, suit or
proceeding or in defense of any claim, issue or matter therein, shall be
indemnified as provided in subsection (a) as of right. Any other indemnification
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under subsection (a) (unless authorized by a court) shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification is proper because the person has met the applicable standard of
conduct set forth therein. Such determination shall be made by (i) the Board of
Directors acting by a quorum consisting of directors who were not parties to (or
have been wholly successful with respect to) such claim, action, suit or other
proceeding; (ii) independent legal counsel (who may be regular counsel of the
corporation) in a written opinion; or (iii) the stockholders.
(c) The indemnification provided by this by-law shall not be deemed
exclusive of any other rights to which an officer or director may be entitled
under any agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office and shall continue as to a person who
has ceased to be a director or officer and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(d) The Board of Directors may authorize the purchase of insurance on
behalf of any person who is or was a director or officer of the corporation, or
is or was serving at the request of the corporation against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the corporation would have the power to
indemnify him against such liability.
(e) If for any reason any provision of this by-law shall be determined to
be invalid, such determination shall not impair any other provision hereof and
all remaining provisions shall remain in force and effect.
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CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
1. That I am the duly elected and acting Secretary of MIDWEST-MIX, INC., a
Minnesota corporation; and
2. That the foregoing By-Laws, comprising 11 pages, constitute the
original By-Laws of said corporation as duly adopted at the first meeting of the
Board of Directors.
IN WITNESS WHEREOF I have hereunto subscribed my name and affixed the seal
of said corporation this 14 day of March, 1968.
/s/ John R. Friedman
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Secretary
(CORPORATE SEAL)