THIRD RESTATED
ARTICLES OF INCORPORATION
OF
SELECT COMFORT CORPORATION
These Third Restated Articles of Incorporation supersede the Second Restated
Articles of Incorporation dated August 31, 1998 and all amendments thereto.
ARTICLE I
The name of the Corporation is Select Comfort Corporation.
ARTICLE II
The registered office of the Corporation in Minnesota is 6105 Trenton Lane
North, Suite 100, Minneapolis, MN 55442-3240.
ARTICLE III
The Corporation, through its Board of Directors, is authorized to issue up to
one-hundred million (100,000,000) shares of capital stock, ninety-five million
(95,000,000) of which are designated as Common Stock, five million (5,000,000)
of which are designated as the "Undesignated Preferred Stock," and all of which
shall have a par value of $0.01 per share.
The Undesignated Preferred Stock may be issued from time to time in one or more
series. For each series, the Board of Directors must fix, prior to the issuance
of any shares thereof, pursuant to the authority hereby expressly vested in it,
a distinctive designation or title, the number of shares in each series, the
voting powers (full, limited or no voting powers), the preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof.
ARTICLE IV
The purposes of the Corporation are general business purposes and the
Corporation shall possess all powers necessary to conduct any business in which
it is authorized to engage, including, but not limited to, all those powers
expressly conferred upon business corporations by Chapter 302A of the Minnesota
Statutes, as amended, together with those powers implied therefrom.
ARTICLE V
The Corporation shall have perpetual duration.
ARTICLE VI
The affirmative vote of the holders of a majority of the voting power of the
shares of capital stock represented and entitled to vote at a duly held meeting
is required for an action of the shareholders, including any amendment to these
Articles of Incorporation, except where Chapter
302A of the Minnesota Statutes, as amended, or these Articles of Incorporation,
as amended, requires an affirmative vote of a larger majority.
ARTICLE VII
Shares of capital stock of the Corporation acquired by the Corporation shall
become authorized but unissued shares and may be reissued, from time to time, at
the discretion of the Corporation.
ARTICLE VIII
Except as otherwise provided in these Articles of Incorporation, as amended,
(A) The Board of Directors may from time to time, by vote of a majority of its
members present at a duly held meeting, adopt, amend or repeal all or any of the
Bylaws of the Corporation as permitted by Chapter 302A of the Minnesota
Statutes, as amended, subject to the power of the shareholders to adopt, amend
or repeal such Bylaws.
(B) The Board of Directors is authorized to accept and reject subscriptions for
and to dispose of shares of authorized stock of the Corporation, including the
granting of stock options, warrants and other rights to purchase stock, without
action by the shareholders and upon such terms and conditions as may be deemed
advisable by the Board of Directors in the exercise of its discretion, except as
otherwise limited by Chapter 302A of the Minnesota Statutes, as amended.
(C) The Board of Directors is authorized to issue, sell or otherwise dispose of
bonds, debentures, certificates of indebtedness and other securities, including
those convertible into stock, without action by the shareholders and for such
consideration and upon such terms and conditions as may be deemed advisable by
the Board of Directors in the exercise of its discretion, except as otherwise
limited by Chapter 302A of the Minnesota Statutes, as amended.
ARTICLE IX
Any action required or permitted to be taken at a meeting of the Board of
Directors may be taken by written consent signed by all the directors; provided
that, if the action is one which does not require shareholder approval, such
action may be taken by written consent signed by the number of directors that
would be required to take the same action at a meeting at which all directors
were present.
ARTICLE X
The shareholders of the Corporation have no right to cumulate their votes in the
election of directors.
ARTICLE XI
The shareholders of the Corporation have no preemptive rights in any future
issuance of stock by the Corporation.
2
ARTICLE XII
Each director, officer, employee or agent, past and present, of the Corporation,
and each person who serves or may have served at the request of the Corporation
as a director, officer, employee or agent of another corporation or employee
benefit plan, and their respective heirs, administrators and executors, shall be
indemnified by the Corporation in accordance with, and to the fullest extent
permissible under, the provisions of Chapter 302A of the Minnesota Statutes, as
amended.
ARTICLE XIII
A director of the Corporation, including a person deemed to be a director under
applicable law, shall not be personally liable to the Corporation or its
shareholders for monetary damages for breach of fiduciary duty as a director,
except to the extent provided by applicable law for (i) liability based on a
breach of the duty of loyalty to the Corporation or the shareholders; (ii)
liability for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law; (iii) liability based on the payment
of an improper dividend or an improper acquisition of the Corporation's shares
under Section 559 of the Minnesota Business Corporation Act (Minnesota Statutes,
Chap. 302A) or on violations of state securities laws under Section 80A.23 of
Minnesota Statutes; or (iv) liability for any transaction from which the
director derived an improper personal benefit. If Chapter 302A, the Minnesota
Business Corporation Act, hereafter is amended to authorize the further
elimination or limitation of the liability of directors, then the liability of a
director of the Corporation, in addition to the limitation on personal liability
provided herein, shall be eliminated or limited to the fullest extent permitted
by any such amendment. Any repeal or modification of this Article XIII by the
shareholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
ARTICLE XIV
The number of directors which shall constitute the entire Board of Directors
shall not be less than one (1) nor more than nine (9), which number shall be
determined from time to time by the Board of Directors. The Directors shall be
divided into three (3) classes, as nearly equal in number as possible. The term
of office of the first class shall expire at the 1999 annual meeting of the
shareholders of the Corporation; the term of office of the second class shall
expire at the 2000 annual meeting of the shareholders of the Corporation; and
the term of office of the third class shall expire at the 2001 annual meeting of
the shareholders of the Corporation. At each annual meeting of the shareholders
after such classification, the number of directors equal to the number of the
class whose term expires on the day of such meeting shall be elected for a term
of three (3) years. Directors shall hold office until expiration of the terms
for which they were elected and qualified; provided, however, that a director
may be removed from office as a director at any time by the shareholders, but
only for cause, and only by the affirmative vote of a majority of the
outstanding voting power entitled to elect such director. If the office of any
director becomes vacant by reason of death, resignation, retirement,
disqualification, removal from office, increase in the number of directors or
otherwise, a majority of the remaining directors, although less than a quorum,
at a meeting called for that purpose, may choose a successor, who, unless
removed for cause as set forth above, shall hold office until the expiration
3
of the term of the class for which appointed or until a successor shall be
elected and qualified. This Article XIV may not be altered, amended or
repealed, in whole or in part, unless authorized by the affirmative vote of the
holders of not less than two-thirds of the outstanding voting power entitled to
vote.
ARTICLE XV
The affirmative vote of the holders of not less than two-thirds of the
outstanding voting power of the corporation entitled to vote for approval shall
be required if (a) this Corporation merges or consolidates with any other
corporation, or if (b) this Corporation sells or exchanges all or a substantial
part of its assets to or with any other corporation, or if (c) this Corporation
issues or delivers any stock or other securities of its issue in exchange or
payment for any properties or assets of any other corporation, or securities
issued by any other corporation, or in a merger of any subsidiary of this
Corporation (80% or more of the common stock of which is held by this
Corporation) with or into any other corporation; provided, however, that the
foregoing shall not apply to any plan of merger or consolidation, or sale or
exchange of assets, or issuance or delivery of stock or other securities which
was approved (or adopted) and recommended without condition by the affirmative
vote of not less than two-thirds of the directors, nor shall it apply to any
such transaction solely between this Corporation and another corporation 50% or
more of the voting stock of which is owned, directly or indirectly, by this
Corporation. The Board of Directors shall be permitted to condition its
approval (or adoption) of any plan of merger or exchange of assets, or issuance
or delivery of stock or securities upon the approval of holders of two-thirds of
the outstanding stock of this Corporation entitled to vote on such plan of
merger or consolidation, or sale or exchange of assets, or issuance or delivery
of stock or securities. This Article XV may not be altered, amended or
repealed, in whole or in part, unless authorized by the affirmative vote of the
holders of not less than two-thirds of the outstanding voting power entitled to
vote.
IN WITNESS WHEREOF, the undersigned hereunto sets his hand this ___ day of
________________, 1998.
SELECT COMFORT CORPORATION
By:
--------------------------------
Its:
-------------------------------
4