EX-3.18 21 a2047684zex-3_18.txt EXHIBIT 3.18 BYLAWS OF KOHLER MIX SPECIALITIES Exhibit 3.18 BY-LAWS OF KOHLER MIX SPECIALTIES, INC. OFFICES Sec. 1. The registered office of the corporation shall be at 4041 Highway 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 have inscribed thereon the name of the corporation and the words "Corporate Seal, Minnesota". Said seal may be used by causing it, or a facsimile thereof, to be impressed or affixed or reproduced or otherwise. 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. 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 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. 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, -2- 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. 14. 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 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 -3- 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 business of the corporation shall be managed by a board of not less than three and not more than seven directors who need not be shareholders and who shall be elected by the 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 qualified. 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 -4- 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. 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 meeting, shall be deemed to have waived notice. Sec. 25. Meetings may be called by any member of the board by giving to each of the other members written notice of the time and place of meeting, mailed at least ten days before the time of meeting. Sec. 26. 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. 27. 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. 28. 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 of 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. 29. 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. 30. The board of directors are authorized to issue shares of the company to the full amount authorized by the -5- Articles of Incorporation in such amounts and at such times and for such consideration as may be determined by the board and may be permitted by law. Sec. 31. 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. 32. 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. OFFICERS Sec. 33. 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 they 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 in their stead. Sec. 34. 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 -6- 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 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. 35. 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. 36. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. CERTIFICATES OF SHARES Sec. 37. 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. 38. Any shareholder claiming a certificate of share -7- 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 SHARES Sec. 39. 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 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. Sec. 40. 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 interest of the corporation. RECORDS AT REGISTERED OFFICE Sec. 41. The corporation shall keep at its registered office the following: 1. 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. 2. Records of all proceedings of shareholders and directors. 3. By-laws and all amendments thereto. 4. Reports made to shareholders or any of them within the -8- next preceding three years. 5. A statement, open to public inspection, of the names and post office addresses of its principal officers. LOANS Sec. 42. 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. AMENDMENTS Sec. 43. 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. -9-