UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC FORM 8-K

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1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 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): February 2, 2016 MGC Diagnostics Corporation (Exact name of registrant as specified in its charter) Minnesota (State or other jurisdiction of incorporation) (Commission File Number) (IRS Employer Identification No.) 350 Oak Grove Parkway Saint Paul, Minnesota (Address of principal executive offices) (Zip Code) (Registrant s telephone number, including area code) 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 (see General Instruction A.2. below): Written communications pursuant to Rule 425 under the Securities Act (17 CFR ) Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR a-12) Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR d-2(b)) Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR e-4(c))

2 Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year On February 2, 2016, the Board of Directors of MGC Diagnostics Corporation ( MGCD or the Company ) adopted amendments to the Company s Amended and Restated Bylaws (the Bylaws ) to implement Proxy Access. The Bylaws include a new Section 2.11 that permits a shareholder (or group of shareholders) owning at least three percent of MGCD common stock continuously for at least three years to nominate and include in MGCD s annual meeting proxy materials director nominees constituting up to twenty percent of the Board, if the shareholder(s) and nominee(s) satisfy the requirements specified in the Bylaws. The Bylaws also establish procedures for advance notice to MGCD by shareholders that intend to nominate individuals to serve as MGCD directors at MGCD annual meetings other than through Proxy Access. The Bylaw also include a new section 2.12 that establishes and clarifies procedures for MGCD shareholders that either (i) intend to present a proposal at an MGDC annual meeting and wish to have the proposal considered for inclusion in MGCD s proxy materials in accordance with SEC 14a-8 under the Securities Exchange Act of 1934, as amended, or (ii) intend to present a proposal at an MGDC annual meeting, but do not intend to have the proposal included in MGCD s proxy materials. The foregoing description is qualified in its entirety by reference to the full text of the Bylaws, a copy of which is attached as Exhibit 3.2 to this Form 8-K and is incorporated herein by reference. Item 9.01 Financial Statements and Exhibits. (d) Exhibits. Exhibit Number Exhibit Description 3.2 Amended and Restated Bylaws of MGC Diagnostics Corporation effective as of February 2, 2016 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 hereunto duly authorized. MGC Diagnostics Corporation Dated: February 5, 2016 By: /s/ Wesley W. Winnekins Wesley W. Winnekins Chief Financial Officer and Chief Risk Officer

3 EXHIBIT 3.2 AMENDED AND RESTATED BYLAWS OF MGC DIAGNOSTICS CORPORATION ARTICLE I OFFICES AND CORPORATE SEAL The registered office of the corporation will be located at 350 Oak Grove Parkway, Saint Paul, Minnesota or in the most recent amendment thereof, or in a statement of the Board of Directors filed with the Secretary of State of the State of Minnesota changing the registered office in the manner prescribed by law. The corporation may also have offices and places of business at such other locations as the Board of Directors may from time to time designate, or the business of the corporation may require. ARTICLE II SHAREHOLDER MEETINGS SECTION 2.1. TIME AND PLACE OF MEETINGS. Regular or special meetings of the shareholders, if any, will be held on the date and at time and place fixed by the President/Chief Executive Officer or the Board of Directors, except that a meeting called by, or at the demand of a shareholder or shareholders, pursuant to the Minnesota Business Corporation Act, as now enacted or hereinafter amended, (the Minnesota Business Corporation Act ) will be held in the county where the principal executive office is located. SECTION 2.2. REGULAR MEETINGS. An annual meeting of the shareholders will be held at such place as the Board of Directors designates, either within or without the State of Minnesota, and on such date and at such time as may be determined by the Board of Directors and communicated to the shareholders according to the requirements set forth herein, for the purpose or electing directors and for the transaction of any other business which may properly come before it. Additional regular meetings of the shareholders may be held on a less frequent periodic basis. No meeting will be considered a regular meeting unless specifically designated as such in the notice of meeting or unless all the shareholders are present in person or by proxy and none of them objects to such designation. Any business appropriate for action by the shareholder may be transacted at a regular meeting. SECTION 2.3. SPECIAL MEETINGS. Special meetings of the shareholders may be held for any purpose or purposes, unless otherwise prescribed by statute. Such a meeting may be called by the President/Chief Executive Officer, the Chief Financial Officer or two or more directors and must be called by the President/Chief Executive Officer at the request in writing of shareholders owning not less than ten percent or more of the voting stock of the corporation. SECTION 2.4. NOTICE OF MEETINGS. Written notice of a meeting of the shareholders stating the time and place thereof must be mailed at least 5 days but not more than 60 days prior to the meeting, except as otherwise provided by statute, to each shareholder entitled to vote thereat to the last known address of such shareholder as the same appears upon the books of the corporation. 1

4 Every notice of any special meeting must state the purpose or purposes for which the meeting has been called, and the business transacted at all special meetings will be confined to the purpose stated in the call, unless all of the shareholders are present in person or by proxy and none of them objects to consideration of a particular item of business. SECTION 2.5. RECORD DATE. The Board of Directors may fix a date as a record date for the determination of the shareholders entitled to notice of, and to vote at, a regular or special meeting, notwithstanding any transfer of shares on the books of the corporation after any record date so fixed. The Board may close the books of the corporation against the transfer of shares during the whole or any part of such period. If no record date is fixed by the Board, the record date for the determination of shareholders entitled to notice of, and to vote at, any meeting of shareholders will be the date five days before the date of such meeting. SECTION 2.6. WAIVER OF NOTICE. Notice of the time, place and purpose of any meeting of shareholders, whether required by statue, the Articles of Incorporation or these Bylaws, may be waived by any shareholder. Such waiver may be given before, at, or after the meeting, and may be given in writing, orally or by attendance. SECTION 2.7. ACTION WITHOUT MEETING. Any action which may be taken at a meeting of the shareholders may be taken without a meeting, if authorized in writing or writings signed by all shareholders who would be entitled to notice of a meeting for such purpose. SECTION 2.8. QUORUM. The presence at any meeting, in person or by proxy, of the holders of a majority of the shares entitled to vote, will constitute a quorum for the transaction of business. If, however, such majority will not be present in person or by proxy at any meeting of the shareholders, those present will have the power to adjourn the meeting from time to time, without notice other than by announcement at the meeting, until the requisite amount of voting shares are represented. At any such adjourned meeting at which the required number of voting shares are represented, any business may be transacted which might have been transacted at the meeting as originally noticed. SECTION 2.9. VOTING. At all meetings of the shareholders, each shareholder having the right to vote will be entitled to vote in person or by proxy, duly appointed by an instrument in writing subscribed by such shareholder. Each shareholder will have one vote for each share having voting power standing in such shareholder s name on the books of the corporation. Upon the demand of any shareholder, the vote for directors or the vote upon any question before the meeting will be by ballot. All elections must be had and all questions decided by a majority vote except as otherwise required by these Bylaws, the Articles of Incorporation, any applicable shareholder agreement, or statute. SECTION PROXIES. At all meetings of shareholders, a shareholder may vote by proxy executed in writing by the shareholder or by such shareholder s duly authorized attorney-in-fact. Such proxy must be filed with the Secretary of the corporation at or before the time of the meeting. A proxy will be valid for the period specified in the proxy or, if no expiration date is provided in the proxy, for a period not to exceed eleven months from the date of its execution. A proxy s authority will not be revoked by the death or incapacity of the maker unless, before the 2

5 vote is cast and the authority exercised, written notice of such death or incapacity is given to the corporation. SECTION NOMINATION OF DIRECTORS. (a) Nominations of persons for election to the board of directors of the corporation may only be made at an annual meeting of shareholders. Such nominations may be made (i) by or at the direction of the board of directors or (ii) by a shareholder (or group of shareholders as provided in Section 2.11(g) below) of the corporation who (A) was a shareholder of record at the time of giving of the notice provided for in this Section 2.11 and at the time of the annual meeting (including any adjournment or postponement thereof), (B) is entitled to vote at such meeting and (C) meets the requirements of and complies with the procedures set forth in this Section 2.11 as to such nomination. For the avoidance of doubt, clause (ii) of this Section 2.11(a) shall be the exclusive means for a shareholder to make nominations before an annual meeting of shareholders. (b) For any director nominations to be properly brought before an annual meeting by a shareholder pursuant to these Bylaws, the shareholder must have given timely notice thereof in writing to the secretary of the corporation. To be timely, a shareholder s notice (other than a notice submitted in order to include a Shareholder Nominee in the corporation s proxy materials, as defined and described in Section 2.11(g) below) must be delivered to or mailed and received at the principal executive offices of the corporation not earlier than the close of business on the 120th day and not later than the close of business on the 90th day prior to the first anniversary of the preceding year s annual meeting; provided, however, that in the event that the date of the annual meeting is more than 30 days before or more than sixty 60 days after such anniversary date, notice by the shareholder to be timely must be so delivered not earlier than the close of business on the 120th day prior to the date of such annual meeting and not later than the close of business on the later of the 90th day prior to the date of such annual meeting or, if the first public announcement of the date of such annual meeting is less than 100 days prior to the date of such annual meeting, the tenth day following the day on which public announcement of the date of such meeting is first made by the corporation. In no event shall any adjournment or postponement of an annual meeting or the announcement thereof commence a new time period for the giving of a shareholder s notice as described above. (c) In order to be effective, the shareholder s notice referred to in Section 2.11(b) above shall set forth: (i) as to the shareholder giving the notice and the beneficial owner, if any, on whose behalf the nomination is made: (A) the name and address of such shareholder, as they appear on the corporation s books, and of such beneficial owner, if any, (B) the class or series and number of shares of the corporation that are, directly or indirectly, owned beneficially and of record by such shareholder and such beneficial owner, (C) any option, warrant, convertible security, stock appreciation right or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the corporation or with a value derived in whole or in part from the value of any class or series of shares of the corporation, whether or not such instrument or 3

6 right shall be subject to settlement in the underlying class or series of capital stock of the corporation or otherwise (a Derivative Instrument ) directly or indirectly owned beneficially by such shareholder or such beneficial owner, if any, and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of shares of the corporation, (D) any proxy, contract, arrangement, understanding, or relationship pursuant to which such shareholder or such beneficial owner, if any, has a right to vote any shares of any security of the corporation, (E) any short interest in any security of the corporation directly or indirectly owned beneficially by such shareholder or such beneficial owner, if any (for purposes of this clause a person shall be deemed to have a short interest in a security if such person directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security), (F) any rights to dividends on the shares of the corporation owned beneficially by such shareholder or such beneficial owner, if any, that are separated or separable from the underlying shares of the corporation, (G) any proportionate interest in shares of the corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such shareholder or such beneficial owner, if any, is a general partner or, directly or indirectly, beneficially owns an interest in a general partner, (H) any performance-related fees (other than an asset-based fee) that such shareholder or such beneficial owner, if any, is entitled to based on any increase or decrease in the value of shares of the corporation or Derivative Instruments, if any, as of the date of such notice, including any such interests held by members of the immediate family of such shareholder or such beneficial owner, if any, sharing the same household (which information shall be supplemented by such shareholder and beneficial owner, if any, not later than ten (10) days after the record date for the meeting to disclose such ownership as of the record date), (I) a description of all agreements, arrangements and understandings between such shareholder and such beneficial owner, if any, and any other person or persons (including their names) in connection with the nomination (or, in the case of the application of this clause to Section 2.12(b)(i), other business) and (J) any other information relating to such shareholder and beneficial owner, if any, that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder (the Exchange Act ); (ii) as to each person whom the shareholder proposes to nominate for election or reelection to the board of directors (A) all information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors in a contested election pursuant to Section 14 of the Exchange Act (including such person s written consent to being named in the proxy statement as a nominee and to serving as a director if elected), (B) a description of all direct and indirect compensation and other material monetary agreements, arrangements 4

7 and understandings during the past three years, and any other material relationships, between or among such shareholder and beneficial owner, if any, and their respective affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation all information that would be required to be disclosed pursuant to Item 404 promulgated under Regulation S- K (or any amendment to Item 404) and any beneficial owner on whose behalf the nomination is made, if any, or any affiliate or associate thereof or person acting in concert therewith, were the registrant for purposes of such rule and the nominee were a director or executive officer of such registrant and (C) a statement in support of the nominee stating why the person should be nominated for election to the board of directors; and (iii) with respect to each nominee for election or reelection to the board of directors, a completed and signed questionnaire, representation and agreement required by Section 2.11(f) of this Article II. The corporation may require any proposed nominee to furnish such other information as may reasonably be required by the corporation to determine the eligibility of such proposed nominee to serve as an independent director of the corporation or that could be material to a reasonable shareholder s understanding of the independence, or lack thereof, of such nominee. (d) At the request of the board of directors, any person nominated by the board of directors for election as a director shall furnish to the secretary of the corporation that information required to be set forth in a shareholder s notice of nomination that pertains to the nominee. If the chair of the meeting shall determine, based on the facts, that a nomination was not made in accordance with the procedures set forth in this Section 2.11, the chair of the board or the chair of the nominating committee of the board of directors may declare the nomination defective and the nomination will be disregarded. Each person validly nominated in accordance with this Section 2.11 (regardless of the source of recommendation) will be evaluated consistently in accordance with the board of directors policy regarding the identification, evaluation and nomination of directors. Notwithstanding the foregoing provisions of this Section 2.11, a shareholder shall also comply with all applicable requirements of the Exchange Act with respect to the matters set forth in this Section (e) Notwithstanding anything in Section 2.11(b) or 2.11(g) of this Article II to the contrary, in the event that the number of directors to be elected to the board of directors is increased and there is no public announcement by the corporation naming all of the nominees for director or specifying the size of the increased board of directors at least 100 days prior to the first anniversary of the preceding year s annual meeting, a shareholder s notice required by this Article II shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the secretary of the corporation at the principal executive offices of the corporation not later than the close of business on the tenth day following the day on which such public announcement is first made by the corporation. 5

8 (f) To be eligible to be a nominee for election or reelection as a director of the corporation, a person must complete and deliver (in accordance with the time periods prescribed for delivery of notice under this Section 2.11) to the secretary of the corporation at the principal executive offices of the corporation a written questionnaire with respect to the background and qualification of such person and the background of any other person or entity on whose behalf the nomination is being made the form of such questionnaire shall be provided by the secretary of the corporation. (g) The corporation shall include in its proxy statement for an annual meeting of shareholders the name of any person nominated for election to the board of directors (the Shareholder Nominee ) by a shareholder or group of shareholders that satisfies the requirements of this Section 2.11(g) (the Eligible Shareholder ), together with the Required Information (defined below), who expressly elects at the time of providing the notice required by this Section 2.11(g) to have its nominee included in the corporation s proxy materials pursuant to this Section 2.11(g). Such notice shall consist of a copy of Schedule 14N filed with the Securities and Exchange Commission in accordance with Rule 14a-18 of the Exchange Act and the information required by Sections 2.11(c)(i), (ii), and (iii) above, along with any additional information as required to be delivered to the corporation by this Section 2.11(g) (all such information collectively referred to as the Notice ), and such Notice shall be delivered to the corporation in accordance with the procedures and at the times set forth in this Section 2.11(g). (i) Notwithstanding the procedures set forth in Section 2.11(b), the Notice, to be timely, must be received at the principal executive offices of the corporation not later than the close of business on the one hundred twentieth (120th) day nor earlier than the close of business on the one hundred fiftieth (150th) day prior to the first anniversary of the preceding year s annual meeting; provided, however, that in the event that the date of the annual meeting is more than (30 days before or more than 60 days after such anniversary date, the Notice by the shareholder to be timely must be so delivered not earlier than the close of business on the 150th day prior to the date of such annual meeting and not later than the close of business on the later of the 120th day prior to the date of such annual meeting or, if the first public announcement of the date of such annual meeting is less than 100 days prior to the date of such annual meeting, the tenth day following the day on which public announcement of the date of such meeting is first made by the corporation. In no event shall any adjournment or postponement of an annual meeting or the announcement thereof commence a new time period for the giving of a shareholder s Notice as described above. (ii) For purposes of this Section 2.11(g), the Required Information that the corporation will include in its proxy statement consists of (i) the information concerning the Shareholder Nominee and the Eligible Shareholder that is required to be disclosed in a proxy statement of the corporation by the rules and regulations of the Exchange Act; and (ii) if the Eligible Shareholder so elects, a Statement (defined below). (iii) The corporation shall not be required to include, pursuant to this Section 2.11(g), any Shareholder Nominee in its proxy materials for any meeting of shareholders for which the secretary of the corporation receives a notice that the nominating shareholder has nominated a person for election to the Board of Directors pursuant to the advance notice requirements for shareholder nominees for director set forth in Section 2.11(b) of these Bylaws. 6

9 (iv) The maximum number of Shareholder Nominees appearing in the corporation s proxy materials with respect to an annual meeting of shareholders shall not exceed 20% of the number of directors in office as of the last day on which the Notice may be delivered, or if such amount is not a whole number, the closest whole number below 20%. Shareholder Nominees that were submitted by an Eligible Shareholder for inclusion in proxy materials of the corporation pursuant to this Section 2.11(g) but either are subsequently withdrawn, or that the Board of Directors itself determines to nominate for election, shall be included in this maximum number. In the event that the number of Shareholder Nominees submitted by Eligible Shareholders pursuant to this Section 2.11(g) exceeds this maximum number, each Eligible Shareholder will select one Shareholder Nominee for inclusion in the corporation s proxy materials until the maximum number is reached, proceeding in order of the amount of shares of common stock of the corporation (largest to smallest) disclosed as owned by each Eligible Shareholder in the Notice. If the maximum number is not reached after each Eligible Shareholder has selected one Shareholder Nominee, this selection process will continue as many times as necessary, following the same order each time, until the maximum number is reached. (v) For purposes of this Section 2.11(g), an Eligible Shareholder shall be deemed to own only those outstanding shares of common stock of the corporation as to which the shareholder possesses both (i) the full voting and investment rights pertaining to the shares and (ii) the full economic interest in (including the opportunity for profit and risk of loss on) such shares; provided that the number of shares calculated in accordance with clauses (i) and (ii) shall not include any shares (x) sold by such shareholder or any of its affiliates in any transaction that has not been settled or closed, including short sales, (y) borrowed, for purposes other than a short sale, by such shareholder or any of its affiliates for any purposes or purchased by such shareholder or any of its affiliates pursuant to an agreement to resell, or (z) subject to any option, warrant, forward contract, swap, contract of sale, other derivative or similar agreement entered into by such shareholder or any of its affiliates, whether any such instrument or agreement is to be settled with shares or with cash based on the notional amount or value of shares of outstanding common stock of the corporation, in any such case which instrument or agreement has, or is intended to have, the purpose or effect of (1) reducing in any manner, to any extent or at any time in the future, such shareholder s or its affiliates full right to vote or direct the voting of any such shares, and/or (2) hedging, offsetting or altering to any degree gain or loss arising from the full economic ownership of such shares by such shareholder or affiliate. A shareholder shall own shares held in the name of a nominee or other intermediary so long as the shareholder retains the right to instruct how the shares are voted with respect to the election of directors and possesses the full economic interest in the shares. A shareholder s ownership of shares shall be deemed to continue during any period in which the shareholder has delegated any voting power by means of a proxy, power of attorney or other instrument or arrangement that is revocable at any time by the shareholder. The terms owned, owning and other variations of the word own shall have correlative meanings. Whether outstanding shares of the common stock of the corporation are owned for these purposes shall be determined by the board of directors. (vi) An Eligible Shareholder must have owned (as defined in Section 2.11(g)(v) above) 3% or more of the corporation s issued and outstanding common stock continuously for at least three years (the Required Shares ) as of both the date the Notice is required to be received by the corporation in accordance with this Section 2.11(g) and the record date for determining 7

10 shareholders entitled to vote at the annual meeting, and must continue to hold the Required Shares through the meeting date. Within the time period specified in this Section 2.11(g) for delivery of the Notice, an Eligible Shareholder must provide the following information in writing to the secretary of the corporation: (i) one or more written statements from the record holder of the shares (and from each intermediary through which the shares are or have been held during the requisite three-year holding period) verifying that, as of a date within three calendar days prior to the date the Notice is received by the corporation, the Eligible Shareholder owns, and has owned continuously for the preceding three years, the Required Shares, and the Eligible Shareholder s agreement to provide, within five (5) business days after the record date for the annual meeting, written statements from the record holder and intermediaries verifying the Eligible Shareholder s continuous ownership of the Required Shares through the record date, along with a written statement that the Eligible Shareholder will continue to hold the Required Shares through the meeting date; (ii) the information required to be set forth in the Notice, together with the written consent of each Shareholder Nominee to being named in the proxy statement as a nominee and to serving as a director if elected; (iii) a representation that the Eligible Shareholder (A) acquired the Required Shares in the ordinary course of business and not with the intent to change or influence control of the corporation, and does not presently have such intent, (B) has not nominated and will not nominate for election to the board of directors at the annual meeting any person other than the Shareholder Nominee(s) being nominated pursuant to this Section 2.11(g), (C) has not engaged and will not engage in, and has not and will not be a participant in another person s solicitation within the meaning of Rule 14a-1(l) under the 1934 Act in support of the election of any individual as a director at the annual meeting other than its Shareholder Nominee or a nominee of the board of directors, and (D) will not distribute to any shareholder any form of proxy for the annual meeting other than the form distributed by the corporation; and (iv) an undertaking that the Eligible Shareholder agrees to (A) assume all liability stemming from any legal or regulatory violation arising out of the Eligible Shareholder s communications with the shareholders of the corporation or out of the information that the Eligible Shareholder provided to the corporation, (B) comply with all other laws and regulations applicable to any solicitation in connection with the annual meeting, and (C) provide to the corporation prior to the election of directors such additional information as requested with respect thereto. The inspector of election shall not give effect to the Eligible Shareholder s votes with respect to the election of directors if the Eligible Shareholder does not comply with each of the representations set forth in clause (iii) above. (vii) The Eligible Shareholder may provide to the secretary of the corporation, at the time the information required by this Section 2.11(g) is provided, a written statement for inclusion in the proxy statement for the corporation s annual meeting, not to exceed 500 words, in support of the Shareholder Nominee s candidacy (the Statement ). Notwithstanding anything to the contrary contained in this Section 2.11(g), the corporation may omit from its proxy materials any information or Statement that it, in good faith, believes is materially false or misleading, omits to state any material fact, or would violate any applicable law or regulation. (viii) Within the time period specified in this Section 2.11(g) for providing Notice, a Shareholder Nominee must deliver to the secretary of the corporation the written questionnaire described in Section 2.11(f) above, along with representations and agreements described in Section 2.11(f) above. The corporation may request such additional information as necessary to permit the board of directors to determine if each Shareholder Nominee is independent under the 8

11 listing standards of the principal U.S. exchange upon which the corporation s common stock is listed, any applicable rules of the Securities and Exchange Commission and any publicly disclosed standards used by the board of directors in determining and disclosing the independence of its directors. If the board of directors determines in good faith that the Shareholder Nominee is not independent under any of these standards, the Shareholder Nominee will not be eligible for inclusion in the corporation s proxy materials. SECTION NOTICE OF OTHER BUSINESS; SHAREHOLDER PROPOSALS. (a) At any annual meeting of the shareholders, only such business (other than the nomination of directors, which shall be governed by Section 2.11 of this Article II) shall be conducted as shall have been brought before the meeting (i) by or at the direction of the board of directors or (ii) by any shareholder of the corporation who (A) was a shareholder of record at the time of giving of the notice provided for in this Section 2.12 and at the time of the annual meeting (including any adjournment or postponement thereof), (B) is entitled to vote at such meeting and (C) complies with the procedures set forth below as to the presentation of business at the meeting. For the avoidance of doubt, clause (ii) of this Section 2.12(a) shall be the exclusive means for a shareholder to present business (other than director nominations, which shall be governed by Section 2.11 of this Article II) before an annual meeting of shareholders. (b) For business to be properly brought before an annual 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 must be delivered to or mailed and received at the principal executive offices of the corporation not earlier than the close of business on the 120th day and not later than the close of business on the 90th day prior to the first anniversary of the preceding year s annual meeting; provided, however, that in the event that the date of the annual meeting is more than 30 days before or more than 60 days after such anniversary date, notice by the shareholder to be timely must be so delivered not earlier than the close of business on the 120th day prior to the date of such annual meeting and not later than the close of business on the later of the 90th day prior to the date of such annual meeting or, if the first public announcement of the date of such annual meeting is less than 100 days prior to the date of such annual meeting, the tenth day following the day on which public announcement of the date of such meeting is first made by the corporation. In no event shall any adjournment or postponement of an annual meeting or the announcement thereof commence a new time period for the giving of a shareholder s notice as described above. In order to be effective the shareholder s notice shall set forth: (i) as to the shareholder giving notice and the beneficial owner, if any, on whose behalf the business is to be brought before the meeting, the information set forth in Section 2.11(b)(i) above; and (ii) as to each matter the shareholder purposes to bring before the meeting: (A) a brief description of the business desired to be brought before the meeting and the reasons for conducting such business at the meeting and (B) any material interest of the shareholder (and the beneficial owner, if any, on whose behalf the business is to be brought before the meeting) in such business. 9

12 (c) If the chair of the meeting shall determine, based on the facts, that business was not properly brought before the meeting in accordance with the procedures set forth in this Section 2.12, he or she shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted. (d) Notwithstanding the foregoing provisions of this Section 2.12, a shareholder shall also comply with all applicable requirements of the Exchange Act with respect to the matters set forth in this Section Nothing in these Bylaws shall be deemed to affect any rights of shareholders to request inclusion of proposals in the corporation s proxy statement pursuant to Rule 14a-8 under the Exchange Act. ARTICLE III BOARD OF DIRECTORS SECTION 3.1. ELECTION OF DIRECTORS. The business and affairs of this corporation will be managed by its Board of Directors. The number of directors will be the number last elected by a majority vote of the shareholders or by the Board of Directors, which number must not be less than three nor more than seven directors. Directors need not be shareholders. Each of the directors will hold office until the regular meeting of the shareholders next held after his or her election, until a successor has been elected and qualifies, or until he or she has or has been removed as hereinafter provided. SECTION 3.2. BOARD MEETINGS; PLACE AND NOTICE. Meetings of the Board of Directors may be held from time to time at anyplace within or without the State of Minnesota that the Board of Directors may designate. In the absence of designation by the Board of Directors, board meetings must be held at the principal executive office of the corporation, except as may be otherwise unanimously agreed orally or in writing or by attendance. Any director may call a meeting of the Board of Directors by giving two days notice to all directors of the date and time of the meeting. The notice need not state the purpose of the meeting. Notice may be given by mail, telephone, telegram, facsimile or in person. If a meeting schedule is adopted by the Board of Directors, or if the date and time of a Board of Directors meeting has been announced at a previous meeting, no notice is required. SECTION 3.3. WAIVER OF NOTICE. Notice of the time, place and purpose of any meeting of the Board of Directors, whether required by statue, the Articles of Incorporation, or these Bylaws, may be waived by any director. Such waiver may be given before, at, or after the meeting and may be given in writing, orally or by attendance. The attendance of a director at a meeting and participation therein will constitute waiver of notice of such meeting unless the director attends for the express purpose of objecting to the transaction of business because the meeting is not lawfully called or convened, the director so states at the meeting, and the director does not thereafter participate in the meeting. SECTION 3.4. QUORUM AND ACTION OF BOARD. At all meetings of the Board of Directors, a majority of the director will be necessary and sufficient to constitute a quorum for the transaction of business; provided, that if less than a majority of the directors are present, a majority of those present may adjourn the meeting from time to time without notice other than an announcement at the meeting at which adjournment is taken. 10

13 The directors 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 directors to leave less than a quorum. The act of a majority of the directors present at any meeting at which a quorum is present, or at any meeting at which a quorum was present and at which the remaining directors are authorized under this Section to continue to transact business will be the act of the Board of Directors. SECTION 3.5. ELECTRONIC COMMUNICATIONS. A conference among directors by any means of communication through which the directors may simultaneously hear each other during the conference constitutes a board meeting, if the same notice is given of the conference as required by these Bylaws for a meeting, and if the number of directors participating in the conference would be sufficient to constitute a quorum at a meeting. Participation in a meeting by such electronic means of communication constitutes presence in person at the meeting. SECTION 3.6. VACANCIES. Any vacancies occurring in the Board of Directors for any reason, and any newly created directorships resulting from an increase in the number of directors, may be filled by a majority of the directors then in office. Any directors so chosen will hold office until the next election of the class for which such directors will have been chosen and until their successors will be elected and qualified subject, however, to prior retirement, resignation, death or removal from office. SECTION 3.7. RESIGNATIONS. Any director of the corporation may resign at any time by giving written notice to the Chair of the Board or to the President/Chief Executive Officer or Secretary of the corporation. Unless a later date is specified in the notice of resignation as the effective date of resignation, resignation will take effect on the date of receipt of the written notice by the Chair, President/Chief Executive Officer, or Secretary. Unless otherwise specified in such notice, the acceptance of the resignation will not be necessary to make it effective. SECTION 3.8. REMOVAL. At a meeting of shareholders called expressly for that purpose, any director or the entire Board of Directors may be removed, with or without cause, by a vote of the holders of a majority of the shares then entitled to vote at an election of directors. Provided, however, that if less than the entire Board is to be removed, no one of the directors may be removed if the votes cast against removal of such director would be sufficient to elect such director if then cumulatively voted at an election of the entire Board of Directors. SECTION 3.9. ABSENT DIRECTORS. A director 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 stated in writing and delivered to the President/Chief Executive Officer or the officer or director presiding at the meeting will be counted as a vote in favor of or against the proposal 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. Such written consent or opposition will be entered in the minutes or other record of action at the meeting. SECTION ACTION WITHOUT MEETING. Any action which is required or may be taken at a meeting of the Board of Directors may be taken without a meeting if a consent in 11

14 writing, setting forth the action so taken, is signed by a majority of all the directors entitled to vote with respect to the subject matter thereof, except as to matters that require shareholder approval, in which case such consent in writing must be signed by all of the directors. Action taken by such written consent will be effective on the date when signed by the required number of directors, or such earlier effective date as set forth therein. When written action is permitted to be taken by less than all of the directors, all directors must be notified immediately of its text and effective date. Failure to provide the notice will not invalidate the written action. A director who does not sign or consent to the written action will have no liability for the action or actions taken thereby. SECTION PRESUMPTION OF ASSENT. For purposes of any liability as a director, a director of the corporation who is present at a meeting of the Board of Directors at which action on any corporate matter is taken will be presumed to have assented to the action taken unless: (a) such director objects at the beginning of the meeting to the transaction of business because the meeting is not lawfully called or convened and does not thereafter participate in the meeting; (b) such director votes against the action at the meeting; or (c) such director is prohibited from voting at the meeting due to a conflict of interest. SECTION COMMITTEES. The Board of Directors may, by a majority vote, designate two or more of their number to constitute an executive committee, which, to the extent determined by the Board and allowed by law, will have and exercise the authority of the Board in the management of the business of the corporation. Such executive committee will act only in the interval between meetings of the Board and will be subject at all times to the control and direction of the Board. The Board of Directors by a majority vote may also appoint one or more natural persons who need not be Board members to serve on such other committees as the Board may determine. Such other committees will have powers and duties as will from time to time be prescribed by the Board. A majority of the members of any committee present at a meeting is a quorum for the transaction of business. All committees will keep accurate minutes of their meetings, which minutes will be made available upon request to members of that committee and to any director. SECTION CHAIR. The Board may elect one of their number to serve as Chair, who will preside, when present, at all meetings of the Board. SECTION COMPENSATION. The directors of the corporation and all members of committees will serve without salary, unless ordered by the directors; however, they will be paid the necessary expenses incurred in the execution of their duties. Nothing herein will preclude the paying by the corporation of a salary or other compensation to an officer or employee who is also a director. SECTION LIMITATION OF LIABILITY. Except as expressly provided in the Minnesota Business Corporation Act, a member of the Board of Directors of this corporation 12

15 will have no personal liability to this corporation or to the shareholders for monetary damages for breach of fiduciary duty as a member of the Board of Directors. ARTICLE IV OFFICERS SECTION 4.1. ELECTION OF OFFICERS. The Board of Directors will, from time to time, elect a President/Chief Executive Officer and a Treasurer/Chief Financial Officer. The Board of Directors may, but will not be required to, elect a Secretary and 1 or more Vice Presidents, as they may determine, one of whom may be designated as an Executive Vice President. In addition, the Board of Directors may elect such other officers and agents as it may determine necessary, including Assistant Secretaries and Assistant Treasurers. Such officers will exercise such powers and perform such duties as are prescribed by the Articles of Incorporation or the Bylaws or as may be otherwise determined from time to time by the Board of Directors. Any number of offices or functions of those officers may be held or exercised by the same person. SECTION 4.2. TERMS OF OFFICE. The officers of the corporation will hold office for such terms as will be determined from time to time by the Board of Directors or until their successors are chosen and qualify in their stead. Any officer elected or appointed by the Board of Directors may be removed by the affirmative vote of a majority of the whole Board of Directors with or without cause. SECTION 4.3. SALARIES. The salaries of all officers and agents of the corporation will be determined by the Board of Directors. SECTION 4.4. PRESIDENT/CHIEF EXECUTIVE OFFICER. As used herein or in other writings of, or documents delivered on behalf of, the corporation, the titles President and Chief Executive Officer will mean one and the same person and will be interchangeable. The President will be the chief executive officer of the corporation, and will have the general direction of the affairs of the corporation. The President will preside at all meetings of the shareholders and of the Board of Directors. The President will direct general active management of the business of the corporation, and will see that all orders and resolutions of the Board of Directors are carried into effect. The President will execute all contracts, mortgages and other instruments of the corporation, and may appoint and discharge agents and employees. The President will be ex officio a member of any executive committee which may be constituted hereunder, and all other standing committees, and will perform all such other duties as are incident to the office, or are properly required by the Board of Directors. SECTION 4.5. VICE PRESIDENT. The Vice Presidents in the order designated by the Board of Directors will perform the duties and exercise the powers of the President in the absence or incapacity of the President. The Vice Presidents will perform such other duties as the Board of Directors may from time to time prescribe. SECTION 4.6. SECRETARY AND ASSISTANT SECRETARIES. The Secretary will attend all sessions of the Board of Directors and all meetings of the shareholders, and record all votes and minutes for all proceedings in a book kept for that purpose, and will perform like 13

16 duties of the standing committees when required. The Secretary will give or cause to be given notice of all meetings of the shareholders and of the Board of Directors, and will perform such other duties as may be prescribed by the Board of Directors or the President under whose supervision the Secretary serves. The Secretary will keep in safe custody the seal, if any, of the corporation, and will affix the same to any instrument requiring it. The Assistant Secretary will, in the absence or disability of the Secretary, perform the duties and exercise the powers of the Secretary, and will perform such other duties as the Board of Directors prescribes. SECTION 4.7. TREASURER/CHIEF FINANCIAL OFFICER AND ASSISTANT TREASURERS. As used herein or in other writings of, or documents delivered on behalf of, the corporation, the titles Treasurer and Chief Financial Officer will mean one and the same person and will be interchangeable. The Treasurer will have the custody of the corporate funds and securities, and will keep full and accurate account of receipt and disbursements in books belonging to the corporation, and will deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated from time to time by the Board of Directors. The Treasurer will disburse the funds of the corporation in discharge of corporate liabilities and obligations as may be ordered by the Board of Directors from time to time, taking the proper vouchers for such disbursements, and will render to the President and the Board of Directors whenever they may require the same, an account of all transactions and of the financial condition of the corporation, The Treasurer will give the corporation a bond, if required by the Board of Directors, in such sum as the Board of Directors may be resolution determine; and with one or more sureties satisfactory to the Board of Directors for the faithful performance of the duties of the office of Treasurer, and for the restoration to the corporation in case of death, resignation, retirement or removal form office of all books, vouchers, papers, money and other property of whatsoever kind in possession or under control of the Treasurer and belonging to the corporation. SECTION 4.8. VACANCIES. If the office of any officer or agent becomes vacant by reason of death, resignation, retirement, disqualification, removal from office or otherwise, the Board of Directors, by a majority vote, will choose a successor or successors who will hold office for the unexpired term in respect of which such vacancy occurred. SECTION 4.9. DELEGATION OF AUTHORITY. An officer elected or appointed by the Board of Directors may delegate some or all of the duties or powers of such office to other persons, provided that such delegation is in writing. SECTION CONTRACT RIGHTS. The election or appointment of a person as an officer or agent does not, of itself, create contract rights. ARTICLE V INDEMNIFICATION To the full extent permitted or required by the Minnesota Business Corporation Act or by other provisions of law, each person who was or is a party or is threatened to be made a party to 14

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