Exhibit (3ii)
BY-LAWS
OF
HON INDUSTRIES Inc.
Includes all amendments through November 13, 1995
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INDEX TO BY-LAWS
HON INDUSTRIES Inc.
ARTICLE 1. OFFICES AND PLACES OF BUSINESS
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1.01. Principal Place of Business.
1.02. Registered Office.
1.03. Other Places.
ARTICLE 2. SHAREHOLDERS
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2.01. Annual Meeting.
2.02. Special Meetings.
2.03. Place of Shareholders' Meetings.
2.04. Notice of Shareholders' Meetings.
2.05. Closing of Transfer Books; Fixing of Record Date.
2.06. Voting List.
2.07. Quorum of Shareholders.
2.08. Adjourned Meetings.
2.09. Vote Required for Action.
2.10. Proxies.
2.11. Shareholders' Voting Rights.
2.12. Voting of Shares by Certain Holders.
2.13. Organization.
2.14. Waiver of Notice by Shareholders.
2.15. Postponement of Shareholders' Meetings.
2.16. Notice of Shareholder Business and Nominations.
ARTICLE 3. BOARD OF DIRECTORS
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3.01. General Powers.
3.02. Election of Directors.
3.03. Number, Terms, Classification, and Qualifications.
3.04. Vacancies in Board.
3.05. Regular Meetings.
3.06. Special Meetings.
3.07. Place of Meetings.
3.08. Notice of Special Meetings.
3.09. Quorum.
3.10. Adjourned Meetings.
3.11. Vote Required for Action.
3.12. Voting.
3.13. Organization.
3.14. Rules and Order of Business.
3.15. Presumption of Assent.
3.16. Waiver of Notice by Directors.
3.17. Informal Action by Directors.
3.18. Committees.
3.19. Compensation.
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ARTICLE 4. OFFICERS
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4.01. Number and Designation.
4.02. Election or Appointment of Officers.
4.03. Tenure and Qualifications.
4.04 Removal.
4.05. Vacancies.
4.06. Duties and Powers of Officers.
4.07. Chairman of the Board of Directors; Vice-Chairman;
President.
4.08. Vice-Presidents.
4.09. Secretary.
4.10. Treasurer.
4.11. Assistant Secretaries.
4.12. Assistant Treasurers.
4.13. Compensation.
4.14. Bond.
ARTICLE 5. SHARES AND CERTIFICATES
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5.01. Issuance of and Consideration for Shares.
5.02. Restrictions on Issuance of Shares and Certificates.
5.03. Certificates Representing Shares.
5.04. Lost, Destroyed, Stolen, or Mutilated Certificates.
5.05. Transfer of Shares.
5.06. Shareholders of Record; Change of Name or Address.
5.07. Regulations.
ARTICLE 6. GENERAL PROVISIONS
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6.01. Seal.
6.02. Fiscal Year.
6.03. Dividends.
6.04. Execution of Documents and Instruments.
6.05. Loans.
6.06. Checks and Drafts.
6.07. Voting of Shares Owned by Corporation.
6.08. Interest of Directors in Transactions.
6.09. Indemnification.
6.10. Duty of Care.
6.11. Reliance on Documents.
6.12. Effect of Partial Invalidity.
6.13. Definitions.
6.14. Authority to Carry Out Resolutions and Motions.
ARTICLE 7. AMENDMENTS
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7.01. Reservation of Right to Amend.
7.02. Procedure to Amend.
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BY-LAWS
OF
HON INDUSTRIES Inc.
Adopted on September 7, 1960. Amended on
April 23, 1964, April 28, 1966, August 13, 1969,
April 15, 1970, February 12, 1976, July 23, 1976,
January 11, 1977, February 13, 1977, April 18, 1977,
July 28, 1977, July 29, 1977, October 27, 1977,
February 27, 1978, February 19, 1979, August 1, 1979,
March 3, 1980, April 30, 1980, October 29, 1980,
August 3, 1982, January 31, 1983, October 31, 1983,
October 30, 1984, February 5, 1985, May 6, 1985,
February 4, 1986, August 5, 1986, February 15, 1988,
July 7, 1988, March 13, 1990, February 11, 1991,
April 29, 1991, July 29, 1991, May 5, 1992, November 2,
1992, May 11, 1993, February 14, 1994, May 10, 1994,
and November 13, 1995.
ARTICLE 1. OFFICES AND PLACES OF BUSINESS
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Section 1.01. Principal Place of Business. The principal place of
business of the Corporation shall be located in such place, within or without
the State of Iowa, as shall be fixed by or pursuant to authority granted by the
Board of Directors from time to time.
Section 1.02. Registered Office. The registered office of the Corporation
required by the Iowa Business Corporation Act to be maintained in the State of
Iowa may be, but need not be, the same as its principal place of business. The
registered office may be changed from time to time by the Board of Directors as
provided by law.
Section 1.03. Other Places. The Corporation may conduct its business,
carry on its operations, have offices, carry out any or all of its purposes, and
exercise any or all of its powers anywhere in the world, within or without the
State of Iowa.
ARTICLE 2. SHAREHOLDERS
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Section 2.01. Annual Meeting. The annual meeting of the shareholders
shall be held in each year at such time and place as shall be fixed by the Board
of Directors or by the Chairman of the Board of Directors; provided, however,
that the annual meeting shall not be scheduled on a legal holiday in the state
where held. Any previously scheduled annual meeting may be postponed by
resolution of the Board of Directors and on public notice given prior to the
date previously scheduled for such annual meeting. At the annual meeting, the
shareholders shall
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elect Directors as provided in Section 3.02 and may conduct any other business
properly brought before the meeting. (As amended 4/23/64, 8/1/79, 10/31/83, and
4/29/91.)
Section 2.02. Special Meetings. Special meetings of the shareholders, for
any purpose or purposes, may be called, and the time and place thereof fixed by
the Board of Directors or by the holders of not less than one-tenth of the
outstanding shares entitled to vote at the meeting. Business conducted at any
special meeting of shareholders shall be limited to the purposes stated in the
notice of the meeting. Any previously scheduled special meeting of shareholders
may be postponed by resolution of the Board of Directors and public notice given
prior to the date previously scheduled for such special meeting of shareholders.
(As amended 4/23/64, 8/1/79, and 4/29/91.)
Section 2.03. Place of Shareholders' Meetings. Any annual meeting or
special meeting of shareholders may be held at any place, either within or
without the State of Iowa. The place of each meeting of shareholders shall be
fixed as provided in these By-laws, or by a waiver or waivers of notice fixing
the place of such meeting and signed by all shareholders entitled to vote at
such meeting. If no designation is made of the place of a meeting of
shareholders, the place of meeting shall be the registered office of the
Corporation in the State of Iowa.
Section 2.04. Notice of Shareholders' Meetings. Written or printed notice
stating the place, day, and hour of the meeting and, in case of a special
meeting, the purpose or purposes for which the meeting is called, shall be
delivered not less than ten days (unless a longer period shall be required by
law) nor more than sixty days before the date of the meeting, either personally
or by mail, by or at the direction of the President, the Secretary, or the
officer or persons calling the meeting, to each shareholder of record entitled
to vote at such meeting. If mailed, such notice shall be deemed to be delivered
when deposited in the United States mail addressed to the shareholder at his
address as it appears on the stock transfer books of the Corporation, with
postage thereon prepaid. (As amended 4/29/91.)
Section 2.05. Closing of Transfer Books; Fixing of Record Date. For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or entitled to receive
payment of any dividend, or in order to make a determination of shareholders for
any other proper purpose, the Board of Directors of the Corporation may provide
that the stock transfer books shall be closed for a stated period but not to
exceed, in any case, seventy days. If the stock transfer books shall be closed
for the purpose of determining shareholders entitled to notice of or to vote at
a meeting of shareholders, such books shall be closed for at least fifteen days
immediately preceding such meeting. In lieu of closing the stock transfer
books, the Board of Directors
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may fix in advance a date as the record date for any such determination of
shareholders, such date in any case to be not more than seventy days and, in
case of a meeting of shareholders, not less than fifteen days prior to the date
on which the particular action, requiring such determination of shareholders, is
to be taken. If the Board of Directors does not provide that the stock transfer
books shall be closed and does not fix a record date for the determination of
shareholders entitled to notice of or to vote at a meeting of shareholders, or
shareholders entitled to receive payment of a dividend, the record date for such
determination of shareholders shall be seventy days prior to the date fixed for
such meeting or seventy days prior to the date of payment of such dividend, as
the case may be. When any record date is fixed for any determination of
shareholders such determination of shareholders shall be made as of the close of
business on the record date. When a determination of shareholders entitled to
vote at any meeting of shareholders has been made as provided in this Section,
such determination shall apply to any adjournment thereof. (As amended 4/30/80,
8/3/82 and 4/29/91.)
Section 2.06. Voting List. The officer or agent having charge of the
stock transfer books for shares of the Corporation shall make, at least ten days
before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such meeting or any adjournment thereof, arranged in
alphabetical order, with the address of and the number of shares held by each,
which list, for a period of ten days prior to such meeting shall be kept on file
at the registered office of the Corporation and shall be subject to inspection
by any shareholder at any time during usual business hours. Such list shall
also be produced and kept open at the time and place of the meeting and shall be
subject to the inspection of any shareholder during the whole time of the
meeting. The original stock transfer books shall be prima facie evidence as to
who are the shareholders entitled to examine such list or transfer books or to
vote at any meeting of shareholders. Failure to comply with the requirements of
this Section shall not affect the validity of any action taken at such meeting.
(As amended 4/29/91.)
Section 2.07. Quorum of Shareholders. Except as otherwise expressly
provided by the Articles of Incorporation or these By-laws, a majority of the
outstanding common shares entitled to vote, represented in person or by proxy,
shall onstitute a quorum at any meeting of shareholders.
Section 2.08. Adjourned Meetings. Any meeting of share-holders may be
adjourned from time to time and to any place, without further notice, by the
chairman of the meeting or by the affirmative vote of the holders of a majority
of the outstanding common shares entitled to vote and represented at the
meeting, even if less than a quorum. At any adjourned meeting at which a quorum
shall be present, any business may be transacted which
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might have been transacted at the meeting as originally notified. (As amended
4/29/91.)
Section 2.09. Vote Required for Action. The vote required for the
adoption of any motion or resolution or the taking of any action at any meeting
of shareholders shall be as provided in the Articles of Incorporation. However,
action may be taken on the following procedural matters by the affirmative vote
of the holders of a majority of the outstanding common shares entitled to vote
and represented at the meeting, even if less than a quorum: election or
appointment of a Chairman or temporary Secretary of the meeting (if necessary),
or adoption of any motion to adjourn or recess the meeting or any proper
amendment of any such motion. Whenever the minutes of any meeting of
shareholders shall state that any motion or resolution was adopted or that any
action was taken at such meeting of shareholders, such minutes shall be prima
facie evidence that such motion or resolution was duly adopted or that such
action was duly taken by the required vote, and such minutes need not state the
number of shares voted for and against such motion, resolution, or action.
Section 2.10. Proxies. At all meetings of shareholders, a shareholder
entitled to vote may vote either in person or by proxy executed in writing by
the shareholder or by his duly authorized attorney in fact. Each such proxy
shall be filed with the Secretary of the Corporation or the person acting as
Secretary of the meeting, before or during the meeting. No proxy shall be valid
after eleven months from the date of its execution, unless otherwise provided in
the proxy.
Section 2.11. Shareholders' Voting Rights. Each outstanding share
entitled to vote shall be entitled to one vote on each matter submitted to a
vote at a meeting of shareholders, except as otherwise provided in the Articles
of Incorporation. Voting rights for the election of Directors shall be as
provided in Section 3.02 and in the Articles of Incorporation. (As amended
2/12/76.)
Section 2.12. Voting of Shares by Certain Holders. Shares standing in the
name of another corporation, domestic or foreign, may be voted by such officer,
agent, or proxy as the By-laws of such corporation may prescribe, or, in the
absence of such provision, as the Board of Directors of such corporation may
determine.
Shares held by an administrator, executor, guardian, or conservator may be voted
by him, either in person or by proxy, without a transfer of such shares into his
name.
Shares standing in the name of a trustee may be voted by him, either in person
or by proxy, but no trustee shall be
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entitled to vote shares held by him without a transfer of such shares into his
name.
Shares standing in the name of a receiver may be voted by such receiver, and
shares held by or under the control of a receiver may be voted by such receiver
without the transfer thereof into his name if authority to do so be contained in
an appropriate order of the court by which such receiver was appointed.
A shareholder whose shares are pledged shall be entitled to vote such shares
until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Treasury shares shall not be voted at any meeting or counted in determining the
total number of outstanding shares at any given time.
Section 2.13. Organization. The Chairman of the Board of Directors or the
Vice-Chairman or the President or a Vice-President, as provided in these By-
laws, shall preside at each meeting of shareholders; but if the Chairman of the
Board of Directors, the Vice-Chairman, the President, and each Vice-President
shall be absent or refuse to act, the shareholders may elect or appoint a
Chairman to preside at the meeting. The Secretary or an Assistant Secretary, as
provided in these By-laws, shall act as Secretary of each meeting of
shareholders; but if the Secretary and each Assistant Secretary shall be absent
or refuse to act, the shareholders may elect or appoint a temporary Secretary to
act as Secretary of the meeting. (As amended 4/23/64 and 8/1/79.)
Section 2.14. Waiver of Notice by Shareholders. Whenever any notice
whatsoever is required to be given to any shareholder of the Corporation under
any provision of law or the Articles of Incorporation or these By-laws, a waiver
thereof in writing signed by the person or persons entitled to such notice,
whether signed before or after the time of the meeting or event of which notice
is required, shall be deemed equivalent to the giving of such notice. Neither
the business to be conducted at, nor the purpose of, any annual or special
meeting of shareholders need be specified in any waiver of notice of such
meeting. The attendance of any shareholder, in person or by proxy, at any
meeting of shareholders shall constitute a waiver by such shareholder of any
notice of such meeting to which such shareholder would otherwise be entitled,
and shall constitute consent by such shareholder to the place, day, and hour of
such meeting and all business which may be conducted at such meeting, unless
such shareholder attends such meeting and objects at such meeting to any
business conducted because the meeting is not lawfully called or convened. (As
amended 4/29/91.)
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Section 2.15. Postponement of Shareholders' Meetings. Any meeting of the
shareholders may be postponed prior to the record date by the Board of Directors
or by the Chairman. Written or printed notice of the postponement shall be
delivered not less than 10 days nor more than 60 days before the date set for
the meeting, either personally or by mail to each shareholder of record entitled
to vote. If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail, addressed to the shareholder at his or her address as
it appears on the stock transfer books of the Corporation, with postage thereon
prepaid. (As adopted 2/11/91.)
Section 2.16. Notice of Shareholder Business and Nominations.
(a) Annual Meeting of Shareholders.
(1) Nominations of persons for election to the Board of Directors of
the Corporation and the proposal of business to be considered by the
shareholders may be made at an annual meeting of shareholders (i) pursuant
to the Corporation's notice of meeting, (ii) by or at the direction of the
Board of Directors, or (iii) by any shareholder of the Corporation who was
a share-holder of record at the time of giving of notice provided for in
this By-law, who is entitled to vote at the meeting and who complies with
the notice procedures set forth in this By-law.
(2) For nominations or other business to be properly brought before an
annual meeting by a shareholder pursuant to Subsection 2.15(a)(1)(iii), the
shareholder must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a shareholder's notice shall be
delivered to the Secretary at the principal executive offices of the
Corporation not less than sixty days nor more than ninety days prior to the
first anniversary of the preceding year's annual meeting of shareholders;
provided, however, that, if the date of the annual meeting is advanced by
more than thirty days or delayed by more than sixty days from such
anniversary date, notice by the shareholder, to be timely, must be so
delivered not earlier than ninety days prior to such annual meeting and not
later than the close of business on the later of the sixtieth day prior to
such annual meetingor the tenth day following the date on which public
announcement of the date of such meeting is first made. Such shareholder's
notice shall set forth:
(i) as to each person whom the shareholder proposes to nominate
for election or reelection as a Director, all information relating to
such person that is required to be disclosed in solicitations of
proxies for election of Directors, or is otherwise required, in each
case pursuant to Regulation 14A under the
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Securities Exchange Act of 1934, as amended (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;
(ii) as to any other business that the shareholder proposes to
bring before the meeting, a brief description of the business desired
to be brought before the meeting, the reasons for conducting such
business at the meeting, and any material interest of such shareholder
in such business and the beneficial owner, if any, on whose behalf the
proposal is made; and
(iii) as to the shareholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made, the
name and address of such shareholder and of such beneficial owner as
they appear on the Corporation's books, and the class and number of
shares of the Corporation which are owned beneficially and of record
by such shareholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of Subsection
2.15(a)(2) to the contrary, if the number of Directors to be elected to the
Board of Directors of the Corporation is increased and there is no public
announcement by the Corporation naming all the nominees for Director or
specifying the size of the increased Board of Directors at least seventy
days prior to the first anniversary of the preceding year's annual meeting
of shareholders, a shareholder's notice required by this By-law shall also
be considered timely, but only with respect to nominees for any new
positions created by such increase, if it is delivered to the Secretary at
the principal executive offices of the Corporation not later than the close
of business on the tenth day following the date on which such public
announcement is first made by the Corporation.
(b) Special Meetings of Shareholders. Nominations of persons for
election to the Board of Directors may be made at a special meeting of
shareholders at which Directors are to be elected pursuant to the Corporation's
notice of meeting (1) by or at the direction of the Board of Directors or (2) by
any shareholder of the Corporation who was a shareholder of record at the time
of giving of notice provided for in this By-law, who is entitled to vote at the
meeting, and who complies with the notice procedures set forth in this By-law.
Nominations by shareholders of persons for election to the Board of Directors
may be made at such a special meeting of shareholders if the shareholder's
notice required by Subsection 2.15(a)(2) is delivered to the Secretary at the
principal executive offices of the Corporation no earlier than ninety days prior
to such special meeting and not
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later than the close of business on the later of the sixtieth day prior to such
special meeting or the tenth day following the date on which public announcement
is first made of the date of the special meeting and of the nominees proposed by
the Board of Directors to be elected at such meeting.
(c) General.
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(1) Only persons who are nominated in accordance with the
procedures set forth in this By-law shall be eligible to serve as
Directors, and only such business shall be conducted at a meeting of
shareholders as shall have been brought before the meeting in
accordance with the procedures set forth in these By-laws. Except as
otherwise provided by law, the Articles of Incorporation, or the By-
laws of the Corporation, the Chairman of the meeting shall have the
power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made in accordance with
the procedures set forth in these By-laws and, if any proposed
nomination or business is not in compliance with these By-laws, to
declare that such defective proposal or nomination shall be
disregarded.
(2) For purposes of this By-law, "public announcement" means
disclosure in a press release reported by the Dow Jones News Service,
Associated Press, or comparable national news service or in a document
publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this By-law, a
shareholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to
the matters set forth in this By-law. Nothing in this By-law 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. (As adopted 4/19/91.)
ARTICLE 3. BOARD OF DIRECTORS
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Section 3.01. General Powers. The business and affairs of the Corporation
shall be managed by its Board of Directors. The Board of Directors may exercise
all such powers of the Corporation and may do all such lawful acts and things as
are not by law or the Articles of Incorporation or these By-laws expressly
required to be exercised or done by the shareholders.
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Section 3.02. Election of Directors. Subject to the Articles of
Incorporation, the common shareholders shall elect one class of Directors at
each annual meeting of shareholders. At each election of Directors, each common
shareholder entitled to vote shall have the right to vote, in person or by
proxy, the number of common shares owned by him and entitled to vote, for as
many persons as the number of the class to be elected. Cumulative voting shall
not be permitted. The election of Directors may be conducted by written ballot,
but need not be conducted by written ballot unless required by a rule or motion
adopted by the shareholders. (As amended 2/12/76.)
Section 3.03. Number, Terms, Classification, and Qualifications. Subject to
the Articles of Incorporation:
(a) The number of Directors shall be twelve. (As amended 10/29/80,
1/31/83, 2/5/85, 8/5/86, 3/13/90, 5/5/92, 11/2/92, 5/11/93, 2/14/94, 5/10/94,
and 11/13/95.)
(b) The Directors shall be divided into three classes, each of which shall
be as nearly equal in number as possible. The term of office of one class shall
expire in each year. At each annual meeting of the shareholders a number of
Directors equal to the number of the class whose term expires at the annual
meeting shall be elected for a term ending when Directors are elected at the
third succeeding annual meeting. Section 6.03 of the Articles of Incorporation
shall apply if there is a failure in any one or more years to elect one or more
Directors or to elect any class of Directors. (As Amended 2/4/86.)
(c) The number of Directors may be increased or decreased from time to
time by amendment of this Section, but no decrease shall have the effect of
shortening the term of any incumbent Director. Any new Directorships shall be
assigned to classes, and any decrease in the number of Directors shall be
scheduled, in such a manner that the three classes of Directors shall be as
nearly equal in number as possible.
(d) The term of each Director shall begin at the time of his election.
Unless sooner removed as provided in the Articles of Incorporation or elected to
fill a vacancy with a shorter unexpired term pursuant to Section 3.04, each
Director shall serve for a term ending when Directors are elected at the third
succeeding annual meeting of shareholders.
However, any Director may resign at any time by delivering his written
resignation to the Chairman, Vice-Chairman, President, or Secretary of the
Corporation. The resignation shall take effect immediately upon delivery,
unless it states a later effective date. (As amended 8/1/79.)
(e) Directors need not be residents of the State of Iowa or shareholders
of the Corporation.
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(As amended 4/23/64, 4/15/70, 2/12/76, 7/23/76, 1/11/77, 4/18/77, 7/28/77,
7/29/77, 2/27/78, and 2/4/86.)
Section 3.04. Vacancies in Board. Any vacancy occurring in the Board of
Directors for any reason, and any Directorship to be filled by reason of an
increase in the number of Directors, may be filled by the affirmative vote of a
majority of the Directors then in office even if less than a quorum
(notwithstanding Sections 3.09 and 3.11). Except as otherwise provided in
Section 6.03 of the Articles of Incorporation, a Director elected as provided in
this Section shall be elected for the unexpired term of his predecessor in
office or the unexpired term of the class of Directors to which his new
Directorship is assigned. However, if a Director is elected to fill a vacancy
caused by the resignation of a predecessor whose resignation has not yet become
effective, the new Director's term shall begin when his predecessor's
resignation becomes effective. (As amended 4/23/64 and 2/12/76.)
Section 3.05. Regular Meetings. A regular meeting of the Board of
Directors may be held without notice other than this Section, promptly after and
at the same place as each annual meeting of shareholders.
Other regular meetings of the Board of Directors may be held at such time and at
such places as shall be fixed by (or pursuant to authority granted by)
resolution or motion adopted by the Board of Directors from time to time,
without notice other than such resolution or motion. However, unless both the
time and place of a regular meeting shall be fixed by the Board of Directors,
notice of such meeting shall be given as provided in Section 3.08.
Section 3.06. Special Meetings. Special meetings of the Board of
Directors may be called, and the time and place thereof fixed, by the Chairman
of the Board of Directors or the Vice-Chairman or the President or the Secretary
or by a majority of the Directors then in office. (As amended 4/23/64 and
8/1/79.)
Section 3.07. Place of Meetings. Any regular meeting or special meeting
of the Board of Directors may be held at any place, either within or without the
State of Iowa. The place of each meeting of the Board of Directors shall be
fixed as provided in these By-laws, or by waiver or waivers of notice fixing the
place of such meeting and signed by all Directors then in office. If no
designation is made of the place of a meeting of the Board of Directors, the
place of meeting shall be the registered office of the Corporation in the State
of Iowa.
Section 3.08. Notice of Special Meetings. Written or printed notice
stating the place, day, and hour of a special meeting of the Board of Directors
shall be delivered to each
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Director not less than twenty-four hours before the time of the meeting, either
personally or by mail or by telegram, by or at the direction of the President,
the Secretary, or the officer or persons calling the meeting. If mailed, such
notice shall be deemed to be delivered when deposited in the United States mail
addressed to the Director at his address as it appears on the records of the
Corporation, with postage thereon prepaid. If given by telegram, such notice
shall be deemed to be delivered when the telegram is delivered to the telegraph
company, addressed to the Director at his address as it appears on the records
of the Corporation. Neither the business to be transacted at, nor the purpose
of, any meeting of the Board of Directors need be specified in the notice of
such meeting. (As amended 7/7/88.)
Section 3.09. Quorum. Except as otherwise expressly provided by the
Articles of Incorporation or these By-laws, a majority of the number of
Directors fixed by these By-laws shall constitute a quorum at any meeting of the
Board of Directors.
Section 3.10. Adjourned Meetings. Any meeting of the Board of Directors
may be adjourned from time to time and to any place, without further notice, by
the affirmative vote of a majority of the Directors present at the meeting, even
if less than a quorum. At any adjourned meeting at which a quorum shall be
present, any business may be conducted which might have been transacted at the
meeting as originally notified. (As amended 4/29/91.)
Section 3.11. Vote Required for Action. Except as otherwise provided in
these By-laws, the affirmative vote of a majority of the number of Directors
fixed by these By-laws shall be required for and shall be sufficient for the
adoption of any motion or resolution or the taking of any action at any meeting
of the Board of Directors. However, the following actions may be taken by the
affirmative vote of a majority of the Directors present at the meeting, even if
less than a quorum: election or appointment of a Chairman or temporary
Secretary of the meeting (if necessary), or adoption of any motion to adjourn or
recess the meeting or any proper amendment of any such motion. Whenever the
minutes of any meeting of the Board of Directors shall state that any motion or
resolution was adopted or that any action was taken at such meeting of the Board
of Directors, such minutes shall be prima facie evidence that such motion or
resolution was duly adopted or that such action was duly taken by the required
vote, and such minutes need not state the number of Directors voting for and
against such motion, resolution, or action.
Section 3.12. Voting. Each Director (including, without limiting the
generality of the foregoing, any Director who is also an officer of the
Corporation and any Director presiding at a meeting) may vote on any question at
any meeting of the Board of Directors, except as otherwise expressly provided in
these By-laws. (As amended 4/23/64.)
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Section 3.13. Organization. The Chairman of the Board of Directors or the
Vice-Chairman or the President or a Vice-President, as provided in these By-
laws, shall preside at each meeting of the Board of Directors; but if the
Chairman of the Board of Directors, the Vice-Chairman, the President, and each
Vice-President shall be absent or refuse to act, the Board of Directors may
elect or appoint a Chairman to preside at the meeting. The Secretary or an
Assistant Secretary, as provided in these By-laws, shall act as Secretary of
each meeting of the Board of Directors; but if the Secretary and each
Assistant Secretary shall be absent or refuse to act, the Board of Directors may
elect or appoint a temporary Secretary to act as Secretary of the meeting. (As
amended 4/23/64 and 8/1/79.)
Section 3.14. Rules and Order of Business. The Board of Directors may
adopt such rules and regulations, not inconsistent with applicable law or the
Articles of Incorporation or these By-laws, as the Board of Directors deems
advisable for the conduct of its meetings. Except as otherwise expressly
required by law or the Articles of Incorporation or these By-laws or such rules
or regulations, meetings of the Board of Directors shall be conducted in
accordance with Robert's Rules of Order, Revised (as further revised from time
to time). Unless otherwise determined by the Board of Directors, the order of
business at the first meeting of the Board of Directors held after each annual
meeting of shareholders, and at other meetings of the Board of Directors to the
extent applicable, shall be as follows:
(1) Roll call or other determination of attendance and quorum.
(2) Proof of notice of meeting.
(3) Reading and action upon minutes of preceding meeting and any
other unapproved minutes.
(4) Report of President.
(5) Reports of other officers and committees.
(6) Election of officers.
(7) Unfinished business.
(8) New business.
(9) Adjournment.
Failure to comply with the requirements of this Section shall not affect the
validity of any action taken at any meeting unless (a) specific and timely
objection is made at the meeting and (b) the person complaining thereto sustains
direct and material damage by reason of such failure.
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Section 3.15. Presumption of Assent. A Director of the Corporation who is
present at a meeting of the Board of Directors or a committee thereof at which
action on any corporate matter is taken, shall be presumed to have assented to
the action taken unless his dissent shall be entered in the minutes of the
meeting or unless he shall file his written dissent to such action with the
person acting as the Secretary of the meeting before the adjournment thereof or
shall forward such dissent by registered or certified mail to the Secretary of
the Corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a Director who voted in favor of such action.
Section 3.16. Waiver of Notice by Directors. Whenever any notice
whatsoever is required to be given to any Director of the Corporation under any
provision of law or the Articles of Incorporation or these By-laws, a waiver
thereof in writing signed by the Director or Directors entitled to such notice,
whether signed before or after the time of the meeting or event of which notice
is required, shall be deemed equivalent to the giving of such notice. Neither
the business to be transacted at, nor the purpose of, any meeting of the Board
of Directors need be specified in any waiver of notice of such meeting. The
attendance of any Director at any meeting of the Board of Directors shall
constitute a waiver by such Director of any notice of such meeting to which such
Director would otherwise be entitled, and shall constitute consent by such
Director to the place, day, and hour of such meeting and all business which may
be conducted at such meeting, unless such Director attends such meeting and
objects at such meeting to any business conducted because the meeting is not
lawfully called or convened. (As amended 4/29/91.)
Section 3.17. Informal Action by Directors. Any action required by law or
the Articles of Incorporation or these By-laws to be taken by vote of or at a
meeting of the Board of Directors, or any action which may or could be taken at
a meeting of the Board of Directors (or of a committee of Directors), may be
taken without a meeting if a consent in writing setting forth the action so
taken shall be signed by all of the Directors then in office (or all of the
members of such committee, as the case may be). Such consent shall have the
same force and effect as unanimous vote. The signing by each such Director (or
by each member of such committee) of any one of several duplicate originals or
copies of the instrument evidencing such consent shall be sufficient. The
written instrument or instruments evidencing such consent shall be filed with
the Secretary, and shall be kept by the Secretary as part of the minutes of the
Corporation. Such action shall be deemed taken on the date of such written
instrument or instruments as stated therein, or on the date of such filing with
the Secretary, whichever of such two dates occurs first. (As amended 4/23/64.)
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Section 3.18. Committees. The Board of Directors, by resolution adopted
by the affirmative vote of a majority of the number of Directors fixed by
Section 3.03, may designate one or more committees (including, without limiting
the generality of the foregoing, an Executive Committee). Each committee shall
consist of two or more Directors elected or appointed by the Board of Directors.
To the extent provided in such resolution as initially adopted and as thereafter
supplemented or amended by further resolution adopted by a like vote, any such
committee shall have and may exercise, when the Board of Directors is not in
session, all the authority and powers of the Board of Directors. However, no
committee shall have or exercise any authority prohibited by law.
No member of any committee shall continue to be a member thereof after he ceases
to be a Director of the Corporation.
Unless otherwise ordered by the Board of Directors, the affirmative vote or
consent in writing of all members of a committee shall be required for the
adoption of any motion or resolution or the taking of any action by any such
committee, except that an alternate member may take the place of any absent
member to the extent hereinafter provided.
The Board of Directors may elect or appoint one or more Directors as alternate
members of any such committee. Any such alternate member may take the place of
any absent member, upon request by the Chairman of the Board of Directors or the
Vice-Chairman or the President or the Chairman of such committee. The vote or
consent in writing of such alternate member in the absence of such member shall
have the same effect as the vote or consent in writing of such member. (As
amended 8/1/79.)
The Board of Directors may at any time increase or decrease the number of
members of any committee, fill vacancies therein, remove any member thereof,
adopt rules and regulations therefor, or change the functions or terminate the
existence thereof. The designation of any committee and the delegation thereto
of authority shall not operate to relieve the Board of Directors or any Director
of any responsibility imposed by law. (As amended 4/23/64.)
Section 3.19. Compensation. The Board of Directors may fix or provide for
reasonable compensation of any or all Directors for services rendered to the
Corporation as Directors, officers, or otherwise, including, without limiting
the generality of the foregoing, payment of expenses of attendance at meetings
of the Board of Directors or committees, payment of a fixed sum for attendance
at each meeting of the Board of Directors or a committee, salaries, bonuses,
pensions, pension plans, pension trusts, profit-sharing plans, stock bonus
plans, stock option plans (subject to approval of the shareholders if required
by law), and other incentive, insurance, and welfare plans, whether
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or not on account of prior services rendered to the Corporation. No such
compensation shall preclude any Director from serving the Corporation in any
other capacity and receiving compensation therefor.
ARTICLE 4. OFFICERS
--------------------
Section 4.01. Number and Designation. The officers of the Corporation
shall be a Chairman of the Board of Directors, a Vice-Chairman, a President, one
or more Vice-Presidents, a Secretary, a Treasurer, one or more Assistant
Secretaries, one or more Assistant Treasurers, and such other officers as the
Board of Directors deems advisable. (As amended 4/23/64 and 8/1/79.)
Section 4.02. Election or Appointment of Officers. At the first meeting
of the Board of Directors held after each annual meeting of shareholders, the
Board of Directors shall elect the officers specifically referred to in Section
4.01, shall appoint certified public accountants to perform the annual audit,
and shall elect or appoint such other officers and agents as the Board deems
advisable. If in any year the election of officers does not take place at such
meeting, such election shall be held as soon thereafter as may be convenient.
In addition, the Board of Directors may from time to time elect, appoint, or
authorize any officer to appoint such other officers and agents as the Board
deems advisable. Any election may be conducted by ballot, but need not be
conducted by ballot unless required by a rule, regulation, or motion adopted by
the Board of Directors. (As amended 3/3/80.)
Section 4.03. Tenure and Qualifications. Each officer, unless sooner
removed as provided in Section 4.04, shall hold office until his successor shall
be elected or appointed and shall qualify. However, any officer may resign at
any time by filing his written resignation with the President or Secretary of
the Corporation; and such resignation shall take effect immediately upon such
filing, unless a later effective date is stated therein. Officers need not be
residents of the State of Iowa or Directors or shareholders of the Corporation.
Any two or more offices may be held by the same person.
Section 4.04. Removal. Any officer or agent of the Corporation may be
removed by the Board of Directors whenever in its judgment the best interests of
the Corporation will be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed. Election or
appointment of an officer or agent shall not of itself create contract rights.
Section 4.05. Vacancies. Any vacancy occurring in any office for any
reason may be filled by the Board of Directors.
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Section 4.06. Duties and Powers of Officers. Except as otherwise
expressly provided by law or the Articles of Incorporation or these By-laws, the
duties and powers of all officers and agents of the Corporation shall be
determined and defined from time to time by the Board of Directors. Unless
otherwise determined by the Board of Directors, the officers referred to in the
following Sections shall have the duties and powers set forth in the following
Sections, in addition to all duties and powers of such officers prescribed by
law or by the Articles of Incorporation or other provisions of these By-laws.
However, the Board of Directors may from time to time alter, add to, limit,
transfer to another officer or agent, or abolish any or all of the duties and
powers of any officer or agent of the Corporation (including, without limiting
the generality of the foregoing, the duties and powers set forth in the
following Sections and in other provisions of these By-laws). Any person who
holds two or more offices at the same time may perform or exercise any or all of
the duties and powers of either or both of such offices in either or both of
such capacities.
Section 4.07. Chairman of the Board of Directors; Vice-Chairman;
President.
(a) The Chairman of the Board of Directors shall preside at all meetings of
shareholders and of the Board of Directors. He shall be responsible for making
recommendations concerning Board policies and committees, shall maintain Board
liaison with the President, and, when required, because of the inability of the
President to act or otherwise, shall have the same powers as the President on
behalf of the Corporation. He may from time to time, unless otherwise ordered
by the Board, authorize or direct the Vice-Chairman or President to perform any
of the duties or exercise any of the powers of the Chairman. (As amended
10/27/77, 10/30/84, 2/15/88, and 7/29/91.)
(b) The Vice-Chairman shall preside at meetings of the shareholders or of
the Board in the absence of the Chairman. He shall also perform such other
duties as the Chairman may authorize or direct. (As amended 7/29/91.)
(c) The President shall be the chief executive officer of the Corporation
and, subject to the control of the Board, shall supervise, control, and manage
all of the business affairs of the Corporation. He shall report to the Chairman
when the Board is not in session. In the absence of the Chairman and Vice-
Chairman, the President shall preside at meetings of shareholders and of the
Board. Unless otherwise ordered by the Board, the President (1) may employ,
appoint and discharge such employees, agents, attorneys and accountants (except
the certified public accountants appointed by the Board pursuant to Section
4.02) for the Corporation as he deems necessary or advisable, and shall
prescribe their authority, duties, powers, and compensation, including, if
appropriate, the authority to perform some or all
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of the duties or exercise some or all of the powers of the President; (2) may
make and enter into on behalf of the Corporation all deeds, conveyances,
mortgages, leases, contracts, agreements, bonds, reports, releases, and other
documents or instruments which may in his judgment be necessary or advisable in
the ordinary course of the Corporation's business or which shall be authorized
by the Board; (3) shall see that all Corporation policies and all orders and
resolutions of the Board are carried into effect; and (4) shall have all the
usual duties and powers of the President of a corporation and such other duties
and powers as may be prescribed from time to time by the Board. (As amended
7/29/91.)
Section 4.08. Vice-Presidents. Each Vice-President shall have such duties
and powers as may be prescribed from time to time by the President or the Board
of Directors. (As amended 4/23/64 and 10/27/77.)
Section 4.09. Secretary. The Secretary:
-------------------------
(a) shall, when present, act as Secretary of each meeting of the
shareholders and of the Board of Directors;
(b) shall keep the minutes of the meetings of the shareholders and the
Board of Directors in one or more books provided for that purpose;
(c) shall see that all notices are duly given and that lists of
shareholders are made and filed as required by law or the Articles of
Incorporation or these By-laws;
(d) shall be custodian of the corporate records and the seal of the
Corporation and shall, when duly authorized, see that the seal is affixed to any
instrument requiring it;
(e) shall keep a record of the Directors, giving the names and addresses
of all Directors; and (As amended 4/23/64 and 2/19/79.)
(f) shall have all the usual duties and powers of the Secretary of a
corporation and such duties and powers as may be prescribed from time to time by
the President or the Board of Directors. (As amended 2/19/79.)
Section 4.10. Treasurer. The Treasurer:
-------------------------
(a) shall have charge and custody of and be responsible for all funds,
securities, and evidences of indebtedness belonging to the Corporation;
(b) shall receive and give receipts for moneys due and payable to the
Corporation from any source whatever;
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(c) shall see that all such moneys are deposited in the name of and to the
credit of the Corporation in such depositories as shall be designated by or
pursuant to authority granted by the Board of Directors;
(d) shall cause the funds of the Corporation to be disbursed when and as
duly authorized to do so;
(e) shall see that correct and complete books of account and financial
statements are kept and prepared in accordance with generally accepted
accounting principles except to the extent such duties are assigned by the
President to other officers or employees of the Corporation; (As amended
2/13/77.)
(f) shall have all the usual duties and powers of the Treasurer of a
corporation and such duties and powers as may be prescribed from time to time by
the President or the Board of Directors; (As amended 2/13/77.)
(g) shall keep at the registered office or principal place of business of
the Corporation a record of its shareholders (which shall be part of the stock
transfer books of the Corporation), giving the names and addresses of all
shareholders and the number and class of the shares held by each; and (As
amended 2/19/79.)
(h) shall have charge of the stock transfer books of the Corporation, and
shall record the issuance and transfer of shares, except to the extent that such
duties shall be delegated by the Board of Directors to a transfer agent or
registrar. (As amended 2/19/79.)
Section 4.11. Assistant Secretaries. In the absence of the Secretary or
in the event of his death or inability or refusal to act, the Assistant
Secretary (or, if there shall be more than one, the Assistant Secretaries in the
order designated by the Board of Directors from time to time, or, in the absence
of any such designation, in the order in which their names shall appear in the
minutes showing their election) shall perform the duties and exercise the powers
of the Secretary. Each Assistant Secretary shall also have such duties and
powers as may be prescribed from time to time by the Secretary or the President
or the Board of Directors. (As amended 4/23/64.)
Section 4.12. Assistant Treasurers. In the absence of the Treasurer or in
the event of his death or inability or refusal to act, the Assistant Treasurer
(or, if there shall be more than one, the Assistant Treasurers in the order
designated by the Board of Directors from time to time, or, in the absence of
any such designation, in the order in which their names shall appear in the
minutes showing their election) shall perform the duties and exercise the powers
of the Treasurer. Each Assistant Treasurer shall also have such duties and
powers as may be
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prescribed from time to time by the Treasurer or the President or the Board of
Directors. (As amended 4/23/64.)
Section 4.13. Compensation. The Board of Directors may fix or provide for,
or may authorize any officer to fix or provide for, reasonable compensation of
any or all of the officers and agents of the Corporation, including, without
limiting the generality of the foregoing, salaries, bonuses, payment of
expenses, pensions, pension plans, pension trusts, profit-sharing plans, stock
bonus plans, stock option plans (subject to approval of the shareholders if
required by law), and other incentive, insurance, and welfare plans, whether or
not on account of prior services rendered to the Corporation. (As amended
4/23/64.)
Section 4.14. Bond. The Board of Directors may require an officer or
agent to give a bond for the faithful performance of his duties, in such amount
and with such surety or sureties as the Board of Directors deems advisable.
ARTICLE 5. SHARES AND CERTIFICATES
-----------------------------------
Section 5.01. Issuance of and Consideration for Shares. Shares and
securities convertible into shares of the Corporation may be issued for such
consideration expressed in dollars (not less than the par value thereof in the
case of shares having a par value) as shall be fixed from time to time by the
Board of Directors, and may be issued to such persons as may be designated from
time to time by or pursuant to authority granted by the Board of Directors,
except as otherwise required by law or the Articles of Incorporation or these
By-laws.
Section 5.02. Restrictions on Issuance of Shares and Certificates. No
share of the Corporation shall be issued until such share is fully paid as
provided by law. Neither promissory notes of the subscriber nor future services
shall constitute payment or part payment for shares of the Corporation.
No fractional share or certificate representing any fractional share shall be
issued unless expressly authorized by the Board of Directors.
No new certificate shall be issued in place of any certificate until the old
certificate for a like number of shares shall have been surrendered and
cancelled, except as otherwise provided in Section 5.04.
Section 5.03. Certificates Representing Shares. Each shareholder shall be
entitled to a certificate or certificates representing the shares of the
Corporation owned by him. Certificates representing shares of the Corporation
shall be in such form as shall be determined by or pursuant to authority
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granted by the Board of Directors. Each certificate shall be signed by the
President or a Vice-President and by the Secretary or an Assistant Secretary,
and the corporate seal may be affixed thereto. All certificates shall be
consecutively numbered or otherwise identified. The name and address of the
person to whom the shares represented thereby are issued, and the number and
class of shares and date of issuance, shall be entered on the stock transfer
books of the Corporation.
Section 5.04. Lost, Destroyed, Stolen, or Mutilated Certificates. The
Board of Directors may authorize a new certificate to be issued in place of any
certificate alleged to have been lost, destroyed, or stolen, or which shall have
been mutilated, upon production of such evidence and upon compliance with such
conditions as the Board of Directors may prescribe.
Section 5.05. Transfer of Shares. Shares of the Corporation shall be
transferable only on the stock transfer books of the Corporation, by the holder
of record thereof or by his duly authorized attorney or legal representative
(who shall furnish such evidence of authority to transfer as the Corporation or
its agent may reasonably require), upon surrender to the Corporation for
cancellation of the certificate representing such shares, duly endorsed or with
a proper written assignment or power of attorney duly executed and attached
thereto, and with such proof of the authenticity of signatures as the
Corporation or its agent may reasonably require. The Corporation shall cancel
the old certificate, issue a new certificate to the person entitled thereto, and
record the transaction on its stock transfer books. However, if the applicable
law permits shares to be transferred in a different manner, then to the extent
required to comply with such law all references in this Section to "shares"
shall mean the rights against the Corporation inherent in or arising out of such
shares.
Section 5.06. Shareholders of Record; Change of Name or Address. The
Corporation shall be entitled to recognize the exclusive right of a person shown
on its stock transfer books as the holder of shares to receive notices and
dividends, to vote as such holder, and to have and exercise all other rights
deriving from such shares, and shall not be bound to recognize any equitable or
other claim to or interest in such shares on the part of any other person,
whether or not it shall have actual or constructive notice thereof. Unless the
context or another provision of these By-laws clearly indicates otherwise, all
references in these By-laws to "shareholders" and "holders" shall mean the
shareholders of record as shown on the stock transfer books of the Corporation.
Each shareholder and each Director shall promptly notify the Secretary in
writing of his correct address and any change in his name or address from time
to time. If any shareholder or
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Director fails to give such notice, neither the Corporation nor any of its
Directors, officers, agents, or employees shall be liable or responsible to such
shareholder or Director for any error or loss which might have been prevented if
such notice had been given. (As amended 4/23/64.)
Section 5.07. Regulations. The Board of Directors may adopt such rules
and regulations, not inconsistent with applicable law or the Articles of
Incorporation or these By-laws, as it deems advisable concerning the issuance,
transfer, conversion, and registration of certificates representing shares of
the Corporation.
ARTICLE 6. GENERAL PROVISIONS
------------------------------
Section 6.01. Seal. The corporate seal shall be circular in form and
shall have inscribed thereon the name of the Corporation and the words
"Corporate Seal" and "Iowa". The seal may be affixed by causing it or a
facsimile thereof to be impressed or reproduced or otherwise.
Section 6.02. Fiscal Year. The fiscal year of the Corporation shall be
fixed by the Board of Directors from time to time.
Section 6.03. Dividends. The Board of Directors may from time to time
declare, and the Corporation may pay, dividends on the outstanding shares in the
manner and upon the terms and conditions provided by law and the Articles of
Incorporation.
Section 6.04. Execution of Documents and Instruments. All deeds and
conveyances of real estate, mortgages of real estate, and leases of real estate
(for an initial term of five years or more) to be executed by the Corporation
shall be signed in the name of the Corporation by the Chairman of the Board of
Directors or the Vice-Chairman or the President or a Vice-President and signed
or attested by the Secretary or an Assistant Secretary, and the corporate seal
shall be affixed thereto.
All other documents or instruments to be executed by the Corporation (including,
without limiting the generality of the foregoing, contracts, agreements, bonds,
reports, notices, releases, promissory notes, and evidences of indebtedness; and
deeds, conveyances, mortgages, and leases other than those referred to in the
preceding sentence) shall be signed in the name of the Corporation by any one or
more of the officers of the Corporation, with or without the corporate seal.
However, from time to time the Board of Directors or the Chairman of the Board
of Directors or the Vice-Chairman or the President may alter, add to, limit,
transfer to another officer or agent, or abolish the authority of any officer or
officers to sign any or all documents or instruments, or may authorize the
execution
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of any document or instrument by any person or persons, with or without the
corporate seal, and such action may be either general or confined to specific
instances. (As amended 4/23/64 and 8/1/79.)
Section 6.05. Loans. No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its name unless
authorized by or pursuant to authority granted by the Board of Directors. Such
authorization may be either general or confined to specific instances.
Section 6.06. Checks and Drafts. All checks and drafts issued in the name
of the Corporation shall be signed by such person or persons and in such manner
as shall be authorized by or pursuant to authority granted by the Board of
Directors.
Section 6.07. Voting of Shares Owned by Corporation. Any shares or
securities of any other corporation or company owned by this Corporation may be
voted at any meeting of shareholders or security holders of such other
corporation or company by the Chairman of the Board of Directors of this
Corporation. Whenever in the judgment of the Chairman of the Board of Directors
it shall be advisable for the Corporation to execute a proxy or waiver of notice
or to give a consent with respect to any shares or securities of any other
corporation or company owned by this Corporation, such proxy, waiver, or consent
shall be executed in the name of this Corporation, as directed by the Chairman
of the Board of Directors, without necessity of any authorization by the
Board of Directors. Any person or persons so designated as the proxy or proxies
of this Corporation shall have full right, power, and authority to vote such
shares or securities on behalf of this Corporation. In the absence of the
Chairman of the Board of Directors or in the event of his death or inability to
act, the Vice-Chairman may perform the duties and exercise the powers of the
Chairman of the Board of Directors under this Section. The provisions of this
Section shall be subject to any specific directions by the Board of Directors.
(As amended 4/23/64 and 8/1/79.)
Section 6.08. Interest of Directors in Transactions. In the absence of
fraud, any contract or other transaction between the Corporation and any or all
of its Directors (including, without limiting the generality of the foregoing,
any authorization of or payment of compensation to any Director or officer of
the Corporation), or between the Corporation and any person or party in which
any or all of the Directors of the Corporation are interested or with which they
are connected (whether as shareholders, directors, officers, owners, partners,
members, employees, or otherwise) shall be valid for all purposes,
notwithstanding the presence of such Director or Directors at the meeting of the
Board of Directors which shall act upon or with respect to such contract or
transaction, and notwithstanding his or their participation in and vote upon
such
-25-
action, if the fact of such interest shall be disclosed or otherwise known
to the Board of Directors prior to or at the time of the taking of such action.
Such interested Director or Directors are hereby expressly authorized to vote
upon any action of the Board of Directors upon or with respect to such contract
or transaction; may be counted in determining whether a quorum is present; and
may be included in the majority necessary to take such action. Each Director of
the Corporation is hereby expressly relieved, in the absence of fraud, from any
liability which might otherwise exist or arise from contracting with the
Corporation for the benefit of himself or any person or party in which he may be
in any way interested or with which he may be in any way connected.
Any contract, transaction, or action of the Corporation or of the Board of
Directors which shall be ratified at any meeting of shareholders by the
affirmative vote of the holders of a majority of the outstanding common shares
entitled to vote, shall be as valid and as binding as though expressly
authorized in writing by every shareholder of the Corporation. However, any
failure of the shareholders to approve or ratify such contract, transaction, or
action, when and if submitted, shall not be deemed in any way to render the same
invalid or to deprive the Directors or officers of authority to proceed with
such contract, transaction, or action.
This Section shall not be construed to invalidate any contract or transaction
which would otherwise be valid, nor as a limitation upon the powers of the
Directors or officers, nor as a requirement that any contract or transaction of
the Corporation be approved or ratified by the shareholders.
Section 6.09. Indemnification. The Corporation may indemnify any
Qualified Person. For purposes of this Section, "Qualified Person" means any
person who was or 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 including, without limitation, an
action or suit by or in the right of the Corporation) (collectively, "Action")
by reason of the fact that he or she is or was a Director, officer, employee,
member, if any, volunteer, or agent of the Corporation, or is or was serving at
the request of the Corporation as a Director, officer, partner, trustee,
employee, member, if any, volunteer, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, other enterprise, or employee
benefit plan. The indemnification may be against expenses (including attorneys'
fees), judgments, fines, and amounts paid or incurred in settlement which the
Qualified Person actually and reasonably incurred in connection with the Action,
in the manner and to the extent provided in this Section.
(a) Indemnification may be made in the following independent and
alternative methods:
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(1) In the manner and to the extent provided by Iowa law;
(2) If and to the extent that the Board of Directors determines that
the person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Corporation.
This determination may be made (notwithstanding Sections 3.09 and 3.11)
either by: (i) a majority vote of a quorum consisting of Directors who were
not parties to the Action; or (ii) a unanimous vote of all Directors who
were not parties to the Action (whether or not constituting a quorum), if
there are at least two such Directors;
(3) In accordance with any agreement authorized by the Board of
Directors before the commencement of the Action;
(4) If and to the extent authorized by action of the shareholders; or
(5) In any other manner not prohibited by Iowa law.
(b) Restrictions and presumptions required by law with regard to
indemnification referred to in Subsection (a)(1) shall not apply to
indemnification under Subsections (a)(2), (3), or (4); provided, however,
indemnification shall not be provided in any case for:
(1) A breach of a person's duty of loyalty to the Corporation;
(2) Acts or omissions not in good faith or which involve intentional
misconduct or knowing violation of the law;
(3) A transaction from which the person derives an improper personal
benefit; or
(4) Proceedings by or in the right of the Corporation unless permitted
in Iowa Code Section 496A.4A(2) as amended from time to time.
(5) Proceedings by or in the right of the Corporation unless permitted
in Iowa Code Section 496A.4A(2), as amended from time to time.
(c) To the extent that a Qualified Person has been successful on the
merits or otherwise in defense of any Action or in defense of any claim, issue,
or matter therein, he or she shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
with such Action.
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(d) Any indemnification of a Qualified Person may be both as to action in
his or her official capacity and as to action in another capacity while holding
such official capacity; shall continue as to a Qualified Person who has ceased
to be a Director, officer, employee, member, if any, volunteer, or agent; and
shall inure to the benefit of the heirs, beneficiaries, and personal
representatives of the Qualified Person.
(e) Indemnification may be made either by direct payment by the
Corporation or by reimbursement to the Qualified Person. (As amended 2/15/88.)
Section 6.10. Duty of Care. Directors and officers of the Corporation
shall not be liable for losses of the Corporation incurred under their
management which are not the result of misconduct in the performance of duty or
negligence in failing to exercise that diligence, care, and skill which an
ordinarily prudent man would exercise under similar circumstances.
Section 6.11. Reliance on Documents. Each Director and officer shall, in
the performance of his duties, be fully protected in relying and acting in good
faith upon the books of account or other records of the Corporation, or reports
made or financial statements presented by any officer of the Corporation or by
an independent public or certified public accountant or firm of such accountants
or by an appraiser selected with reasonable care by the Board of Directors or by
any committee thereof; and each Director and officer is hereby expressly
relieved from any liability which might otherwise exist or arise from or in
connection with any such action.
Section 6.12. Effect of Partial Invalidity. If a court of competent
jurisdiction shall adjudge to be invalid any clause, sentence, paragraph,
section, or part of the Articles of Incorporation or these By-laws, such
judgment or decree shall not affect, impair, invalidate, or nullify the
remainder of the Articles of Incorporation or these By-laws, but the effect
thereof shall be confined to the clause, sentence, paragraph, section, or part
so adjudged to be invalid.
Section 6.13. Definitions. Any word or term which is defined in the Iowa
Business Corporation Act shall have the same meaning wherever used in the
Articles of Incorporation or in these By-laws, unless the context or another
provision of the Articles of Incorporation or these By-laws clearly indicates
otherwise. Wherever used in the Articles of Incorporation or in these By-laws,
unless the context or another provision of the Articles of Incorporation or
these By-laws clearly indicates otherwise, the use of the singular shall include
the plural, and vice versa; and the use of any gender shall be applicable to any
other gender. Wherever used in the Articles of Incorporation or in these By-
laws, the word "written" shall mean written, typed,
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