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EXHIBIT 3.10
BY-LAWS
OF
GIA ACQUISITION COMPANY
(A Nebraska Corporation)
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TABLE OF CONTENTS
Page
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ARTICLE I
OFFICES
Section 1. Principal Office .............................................................. 1
Section 2. Other offices ................................................................. 1
ARTICLE II
SHAREHOLDERS
Section 1. Time and Place of Meetings .................................................... 1
Section 2. Annual Meetings ............................................................... 1
Section 3. Special Meetings .............................................................. 1
Section 4. Notice ........................................................................ 1
Section 5. Closing of Share Transfer Records and
Fixing Record Date for Matters Other
than Consents to Action ....................................................... 2
Section 6. Fixing Record Dates for Consents
to Action ..................................................................... 2
Section 7. List of Shareholders .......................................................... 3
Section 8. Quorum ........................................................................ 3
Section 9. Voting ........................................................................ 4
Section 10. Action by Consent ............................................................. 5
Section 11. Presence at Meetings by Means of
Communications Equipment ...................................................... 6
ARTICLE III
DIRECTORS
Section 1. Number of Directors ........................................................... 6
Section 2. vacancies ..................................................................... 6
Section 3. General Powers ................................................................ 7
Section 4. Place of Meetings ............................................................. 7
section 5. Annual Meetings ............................................................... 7
Section 6. Regular Meetings .............................................................. 8
Section 7. Special Meetings .............................................................. 8
Section 8. Quorum and Voting ............................................................. 8
Section 9. Committees of the Board of Directors .......................................... 9
Section 10. Compensation of Directors ..................................................... 9
Section 11. Action by Unanimous Consent ................................................... 9
Section 12. Presence at Meetings by Means of
Communications Equipment ...................................................... 9
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ARTICLE I
NOTICES
Section 1. Form of Notice ................................................................. 10
Section 2. Waiver ......................................................................... 10
Section 3. When Notice Unnecessary ........................................................ 10
ARTICLE V
OFFICERS
Section 1. General ........................................................................ 11
Section 2. Election ....................................................................... 11
Section 3. Chairman of the Board .......................................................... 11
Section 4. President ...................................................................... 11
Section 5. Vice Presidents ................................................................ 12
Section 6. Assistant Vice Presidents ...................................................... 12
Section 7. Secretary ...................................................................... 12
Section 8. Assistant Secretaries .......................................................... 13
Section 9. Treasurer ...................................................................... 13
Section 10. Assistant Treasurers ........................................................... 13
Section 11. Bonding ........................................................................ 14
ARTICLE VI
CERTIFICATES REPRESENTING SHARES
Section 1. Form of Certificates ........................................................... 14
Section 2. Lost Certificates .............................................................. 15
Section 3. Transfer of Shares ............................................................. 15
Section 4. Registered Shareholders ........................................................ 15
ARTICLE VII
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 1. General ........................................................................ 15
Section 2. Insurance ...................................................................... 16
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Distributions and Share Dividends .............................................. 17
Section 2. Reserves ....................................................................... 17
Section 3. Fiscal Year .................................................................... 17
Section 4. Seal ........................................................................... 17
Section 5. Resignation .................................................................... 17
ARTICLE IX
AMENDMENTS TO BY-LAWS ...................................................................... 17
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ARTICLE I
OFFICES
Section 1. Principal Office. The principal office of the Corporation
shall be in Grand Island, Nebraska.
Section 2. Other Offices. The Corporation may also have offices at
such other places both within and without the State of Nebraska as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
SHAREHOLDERS
Section 1. Time and Place of Meetings. Meetings of the shareholders
shall be held at such time and at such place, within or without the State of
Nebraska, as shall be determined by the Board of Directors.
Section 2. Annual Meetings. Annual meetings of shareholders shall be
held on such date and at such time as shall be determined by the Board of
Directors. At each annual meeting the shareholders shall elect a Board of
Directors and transact such other business as may properly be brought before the
meeting.
Section 3. Special Meetings. Special meetings of the shareholders may
be called at any time by the Chief Executive Officer or the Board of Directors,
and shall be called by the Chief Executive Officer or the Secretary at the
request in writing of the holders of not less than ten percent (10%) of the
voting power represented by all the shares issued, outstanding and entitled to
be voted at the proposed special meeting, unless the Articles of Incorporation
provide for a different percentage, in which event such provision of the
Articles of Incorporation shall govern. Such request shall state the purpose or
purposes of the proposed meeting. Business transacted at special meetings shall
be confined to the purposes stated in the notice of the meeting.
Section 4. Notice. Written or printed notice stating the place, day and
hour of any shareholders' meeting and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than ten nor more than 50 days before the date of the meeting, either personally
or by mail, by or at the direction of the Chief Executive officer, the Secretary
or the officer or person calling the meeting, to each shareholder entitled to
vote at such meeting. If mailed, such notice shall be deemed to be delivered
when deposited in the United States mail, postage prepaid, addressed to the
shareholder at his address as it appears on the share transfer records of the
corporation.
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Section 5. Closing of Share Transfer Records and Fixing Record Dates
for Matters Other than Consents to Action. 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 distribution or
share dividend, or in order to make a determination of shareholders for any
other proper purpose (other than determining shareholders entitled to consent to
action by shareholders proposed to be taken without a meeting of shareholders),
the Board of Directors of the Corporation may provide that the share transfer
records shall be closed for a stated period but not to exceed, in any case, 60
days. If the share transfer records shall be closed for the purpose of
determining shareholders, such records shall be closed for at least ten days
immediately preceding such meeting. In lieu of closing the share transfer
records, the Board of Directors 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 60 days and, in the case of a meeting of shareholders, not less than ten
days prior to the date on which the particular action requiring such
determination of shareholders is to be taken. If the share transfer records are
not closed and no record date is fixed 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 distribution (other than a distribution
involving a purchase or redemption by the Corporation of any of its own shares)
or share dividend, the date on which notice of the meeting is mailed or the date
on which the resolution of the Board of Directors declaring such distribution or
share dividend is adopted, as the case may be, shall be the record date for such
determination of shareholders. 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 except where the
determination has been made through the closing of share transfer records and
the stated period of closing has expired.
Section 6. Fixing Record Dates for Consents to Action. Unless a record
date shall have previously been fixed or determined pursuant to this Section 6,
whenever action by shareholders is proposed to be taken by consent in writing
without a meeting of shareholders, the Board of Directors may fix a record date
for the purpose of determining shareholders entitled to consent to that action,
which record date shall not precede, and shall not be more than ten days after,
the date upon which the resolution fixing the record date is adopted by the
Board of Directors. If no record date has been fixed by the Board of Directors
and the prior action of the Board of Directors is not required by the Nebraska
Business Corporation Act (herein called the "Act"), the record date for
determining shareholders entitled to consent to action in writing without a
meeting shall be the first date on which a signed written consent setting forth
the action taken or proposed to be taken is delivered to the Corporation by
delivery to its registered office,
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its principal place of business, or an officer or agent of the Corporation
having custody of the records in which proceedings of meetings of shareholders
are recorded. Delivery shall be by hand or by certified or registered mail,
return receipt requested. Delivery to the Corporation's principal place of
business shall be addressed to the President or the Chief Executive Officer of
the Corporation. If no record date shall have been fixed by the Board of
Directors and prior action of the Board of Directors is required by the Act, the
record date for determining shareholders entitled to consent to action in
writing without a meeting shall be at the close of business on the date on which
the Board of Directors adopts a resolution taking such prior action.
Section 7. List of Shareholders. The officer or agent of the
Corporation having charge of the share transfer records for shares of the
Corporation shall make, at least ten days before each meeting of the
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 voting 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 or principal place of business of the Corporation and shall be
subject to inspection by any shareholder at any time during the usual business
hours of the Corporation. 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 share transfer
records shall be prima facie evidence as to who are the shareholders entitled to
examine such list or transfer records 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.
Section 8. Quorum. A quorum shall be present at a meeting of
shareholders if the holders of shares having a majority of the voting power
represented by all issued and outstanding shares entitled to vote at the meeting
are present in person or represented by proxy at such meeting, unless otherwise
provided by the Articles of Incorporation in accordance with the Act. Once a
quorum is present at a meeting of shareholders, the shareholders represented in
person or by proxy at the meeting may conduct such business as may properly be
brought before the meeting until it is adjourned, and the subsequent withdrawal
from the meeting of any shareholder or the refusal of any shareholder
represented in person or by proxy to vote shall not affect the presence of a
quorum at the meeting. If, however, a quorum shall not be present at any meeting
of shareholders, the shareholders entitled to vote, present in person or
represented by proxy, shall have power to adjourn the meeting, without notice
other than announcement at the meeting, until such time and to such place as may
be determined by a vote of the holders of a majority of the shares represented
in person or by proxy at such meeting until a quorum shall be present. At such
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adjourned meeting at which a quorum is present, any business may be transacted
which might have been transacted at the meeting as originally noticed.
Section 9. Voting. When a quorum is present at any meeting, the vote of
the holders of a majority of the shares entitled to vote, present in person or
represented by proxy at such meeting, shall decide any matter brought before
such meeting, other than the election of directors or a matter for which the
affirmative vote of the holders of a specified portion of the shares entitled to
vote is required by the Act, and shall be the act of the shareholders, unless
otherwise provided by the Articles of Incorporation or these By-laws in
accordance with the Act.
Unless otherwise provided in the Articles of Incorporation or these
By-laws in accordance with the Act, directors of the Corporation shall be
elected by a plurality of the votes cast by the holders of shares entitled to
vote in the election of directors at a meeting of shareholders at which a quorum
is present.
At every meeting of the shareholders, each shareholder shall be
entitled to such number of votes, in person or by proxy, for each share having
voting power held by such shareholder, as is specified in the Articles of
Incorporation (including the resolution of the Board of Directors (or a
committee thereof) creating such shares), except to the extent that the voting
rights of the shares of any class or series are limited or denied by the
Articles of Incorporation. At each election of directors, every shareholder
shall be entitled to cast, in person or by proxy, the number of votes to which
the shares owned by him are entitled for as many persons as there are directors
to be elected and for whose election he has a right to vote. Cumulative voting
is prohibited by the Articles of Incorporation. Every proxy must be executed in
writing by the shareholder. A telegram, telex, cablegram, or similar
transmission by the shareholder, or a photographic, photostatic, facsimile, or
similar reproduction of a writing executed by the shareholder, shall be treated
as an execution in writing for the purposes of this Section 9. No proxy shall be
valid after 11 months from the date of its execution unless otherwise provided
therein. Each proxy shall be revocable unless (i) the proxy form conspicuously
states that the proxy is irrevocable, and (ii) the proxy is coupled with an
interest, as defined in the Act and other Nebraska law.
Shares standing in the name of another corporation 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
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in the name of a trustee may be voted by him, either in person or by proxy, but
no trustee shall be entitled to vote shares held by him without a transfer of
such shares into his name as trustee.
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 being transferred into his name, if such authority is
contained in an appropriate order of the court that appointed the receiver.
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, shares of the Corporation's stock owned by another
corporation the majority of the voting stock of which is owned or controlled by
the Corporation, and shares of its own stock held by the Corporation in a
fiduciary capacity shall not be voted, directly or indirectly, at any meeting,
and shall not be counted in determining the total number of outstanding shares
at any given time.
Section 10. Action by Consent. Any action required or permitted to be
taken at a meeting of the shareholders may be taken without a meeting, without
prior notice, and without a vote if a consent in writing, setting forth the
action so taken, shall be signed by all of the shareholders entitled to vote
with respect to the action that is the subject of the consent.
Every written consent shall bear the date of signature of each
shareholder who signs the consent. No written consent shall be effective to take
the action that is the subject of the consent unless, within 60 days after the
date of the earliest dated consent delivered to the Corporation as set forth
below in this Section 10, the consent or consents are delivered to the
Corporation by delivery to its registered office, its principal place of
business, or an officer or agent of the Corporation having custody of the
records in which proceedings of meetings of shareholders are recorded. Delivery
shall be by hand or certified or registered mail, return receipt requested.
Delivery to the Corporation's principal place of business shall be addressed to
the President or the Chief Executive Officer of the Corporation. A telegram,
telex, cablegram, or similar transmission by a shareholder, or a photographic,
photostatic, facsimile, or similar reproduction of a writing signed by a
shareholder, shall be regarded as signed by the shareholder for the purposes of
this Section 10.
Section 11. Presence at Meetings by Means of Communications Equipment.
Shareholders may participate in and hold a meeting of the shareholders by means
of conference telephone or similar communications equipment by means of which
all persons
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participating in the meeting can hear each other, and participation in a meeting
pursuant to this Section 11 shall constitute presence in person at such meeting,
except where a person participates in the meeting for the express purpose of
objecting to the transaction of any business on the ground that the meeting is
not lawfully called or convened.
ARTICLE III
DIRECTORS
Section 1. Number of Directors. The number of directors of the
Corporation shall be fixed from time to time by resolution of the Board of
Directors, but in no case shall the number of directors be less than one. Until
otherwise fixed by resolution of the Board of Directors, the number of directors
shall be the number stated in the Articles of Incorporation. No decrease in the
number of directors shall have the effect of reducing the term of any incumbent
director. Directors shall be elected at each annual meeting of the shareholders
by the holders of shares entitled to vote in the election of directors, except
as provided in Section 2 of this Article III, and each director shall hold
office until the annual meeting of shareholders following his election or until
his successor is elected and qualified. Directors need not be residents of the
State of Nebraska or shareholders of the Corporation.
Section 2. Vacancies. Subject to other provisions of this Section 2,
any vacancy occurring in the Board of Directors may be filled by election at an
annual or special meeting of the shareholders called for that purpose or by the
affirmative vote of a majority of the remaining directors, though the remaining
directors may constitute less than a quorum of the Board Directors as fixed by
Section 8 of this Article III. A director elected to fill a vacancy shall be
elected for the unexpired term of his predecessor in office. Any directorship
to be filled by reason of an increase in the number of directors shall be
filled by election at an annual meeting or at a special meeting of shareholders
called for that purpose or may be filled by the Board of Directors for a term
of office continuing only until the next election of one or more directors by
the shareholders; provided that the Board of Directors may not fill more than
two such directorships during the period between any two successive annual
meetings of shareholders. Shareholders holding a majority of shares then
entitled to vote at an election of directors may, at any time and with or
without cause, terminate the term of office of all or any of the directors by a
vote at any annual or special meeting called for that purpose. Such removal
shall be effective immediately upon such shareholder action even if successors
are not elected simultaneously, and the vacancies on the Board of Directors
caused by such action shall be filled only by election by the shareholders.
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Notwithstanding the foregoing, whenever the holders of any class or
series of shares are entitled to elect one or more directors by the provisions
of the Articles of Incorporation, only the holders of shares of that class or
series shall be entitled to vote for or against the removal of any director
elected by the holders of shares of that class or series; and any vacancies in
such directorships and any newly created directorships of such class or series
to be filled by reason of an increase in the number of such directors may be
filled by the affirmative vote of a majority of the directors elected by such
class or series then in office or by a sole remaining director so elected, or by
the vote of the holders of the outstanding shares of such class or series, and
such directorships shall not in any case be filled by the vote of the remaining
directors or the holders of the outstanding shares as a whole unless otherwise
provided in the Articles of Incorporation.
Section 3. General Powers. The powers of the Corporation shall be
exercised by or under the authority of, and the business and affairs of the
Corporation shall be managed under the direction of, its Board of Directors,
which may do or cause to be done all such lawful acts and things, as are not by
the Act, the Articles of Incorporation or these By-laws directed or required to
be exercised or done by the shareholders.
Section 4. Place of Meetings. The Board of Directors of the Corporation
may hold meetings, both regular and special, either within or without the State
of Nebraska.
Section 5. Annual Meetings. The first meeting of each newly elected
Board of Directors shall be held, without further notice, immediately following
the annual meeting of shareholders at the same place, unless by the majority
vote or unanimous consent of the directors then elected and serving, such time
or place shall be changed.
Section 6. Regular Meetings. Regular meetings of the Board of Directors
may be held with or without notice at such time and place as the Board of
Directors may determine by resolution.
Section 7. Special Meetings. Special meetings of the Board of Directors
may be called by or at the request of the Chief Executive Officer and shall be
called by the Secretary on the written request of a majority of the incumbent
directors. The person or persons authorized to call special meetings of the
Board of Directors may fix the place for holding any special meeting of the
Board of Directors called by such person or persons. Notice of any special
meeting shall be given at least 24 hours previous thereto if given either
personally (including written notice delivered personally or telephone notice)
or by telex, telecopy, telegram or other means of immediate communication, and
at least 72 hours previous thereto if given by written notice mailed or
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otherwise transmitted to each director at the address of his business or
residence. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting. Any director may waive notice of any
meeting, as provided in Section 2 of Article IV of these By-laws. The attendance
of a director at a meeting shall constitute a waiver of notice of such meeting,
except where a director attends a meeting for the express purpose of objecting
to the transaction of any business on the ground that the meeting is not
lawfully called or convened.
Section 8. Quorum and Voting. At all meetings of the Board of
Directors, the presence of a majority of the number of directors fixed in the
manner provided in Section 1 of this Article III shall constitute a quorum for
the transaction of business. At all meetings of committees of the Board of
Directors (if one or more be designated in the manner described in Section 9 of
this Article III), the presence of a majority of the number of directors fixed
from time to time by resolution of the Board of Directors to serve as members of
such committees shall constitute a quorum for the transaction of business. The
affirmative vote of at least a majority of the directors present and entitled to
vote at any meeting of the Board of Directors or a committee of the Board of
Directors at which there is a quorum shall be the act of the Board of Directors
or the committee, except as may be otherwise specifically provided by the Act,
the Articles of Incorporation or these By-laws. Directors with an interest in a
business transaction of the Corporation and directors who are directors or
officers or have a financial interest in any other corporation, partnership,
association or other organization with which the Corporation is transacting
business may be counted in determining the presence of a quorum at a meeting of
the Board of Directors or of a committee of the Board of Directors to authorize
such business transaction. If a quorum shall not be present at any meeting of
the Board of Directors or a committee thereof, a majority of the directors
present thereat may adjourn the meeting, without notice other than announcement
at the meeting, until such time and to such place as may be determined by such
majority of directors, until a quorum shall be present.
Section 9. Committees of the Board of Directors. The Board of Directors
may, by resolution passed by a majority of the whole Board of Directors,
designate from among its members one or more committees, each of which shall be
composed of one or more of its members, and may designate one or more of its
members as alternate members of any committee, who may, subject to any
limitations imposed by the Board of Directors, replace absent or disqualified
members at any meeting of that committee. Any such committee, to the extent
provided in the resolution of the Board of Directors designating the committee
or in the Articles of Incorporation or these By-laws, shall have and may
exercise all of the authority of
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the Board of Directors of the Corporation, except where action of the Board of
Directors is required by the Act or by the Articles of Incorporation. Any member
of a committee of the Board of Directors may be removed, for or without cause,
by the affirmative vote of a majority of the whole Board of Directors. If any
vacancy or vacancies occur in a committee of the Board of Directors caused by
death, resignation, retirement, disqualification, removal from office or
otherwise, the vacancy or vacancies shall be filled by the affirmative vote of a
majority of the whole Board of Directors. Such committee or committees shall
have such name or names as may be designated by the Board of Directors and shall
keep regular minutes of their proceedings and report the same to the Board of
Directors when required.
Section 10. Compensation of Directors. Unless otherwise provided by
resolution of the Board of Directors, directors, as members of the Board of
Directors or of any committee thereof, shall not be entitled to receive any
stated salary for their services. Nothing herein contained, however, shall be
construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
Section 11. Action by Unanimous Consent. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if a written consent, setting
forth the action so taken, is signed by all the members of the Board of
Directors or the committee, as the case may be, and such written consent shall
have the same force and effect as a unanimous vote at a meeting of the Board of
Directors.
Section 12. Presence at Meetings by Means of Communications Equipment.
Members of the Board of Directors of the Corporation or any committee designated
by the Board of Directors, may participate in and hold a meeting of such board
or committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this Section 12 shall
constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
ARTICLE IV
NOTICES
Section 1. Form of Notice. Whenever under the provisions of the Act,
the Articles of Incorporation or these By-laws, notice is required to be given
to any director or shareholder, and no provision is made as to how such notice
shall be given, it shall not be construed to mean personal notice exclusively,
but any such notice may be given in writing, by mail, postage prepaid, or by
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telex, telecopy, or telegram, or other means of immediate communication,
addressed or transmitted to such director or shareholder at such address as
appears on the books of the Corporation. Any notice required or permitted to be
given by mail shall be deemed to be given at the time when the same be thus
deposited, postage prepaid, in the United States mail as aforesaid. Any notice
required or permitted to be given by telex, telecopy, telegram, or other means
of immediate communication shall be deemed to be given at the time of actual
delivery.
Section 2. Waiver. Whenever under the provisions of the Act, the
Articles of Incorporation or these By-laws, any notice is required to be given
to any director or shareholder of the Corporation, a waiver thereof in writing
signed by the person or persons entitled to such notice, whether before or
after the time stated in such notice, shall be equivalent to the giving of such
notice.
Section 3. When Notice Unnecessary. Whenever under the provisions of
the Act, the Articles of Incorporation or these By-laws, any notice is required
to be given to any shareholder, such notice need not be given to the
shareholder if (1) notice of two consecutive annual meetings and all notices of
meetings held during the period between those annual meetings, if any, or (2)
all (but in no event less than two) payments (if sent by first class mail) of
distributions or interest on securities during a 12-month period have been
mailed to that person, addressed at his address as shown on the records of the
Corporation, and have been returned undeliverable. Any action or meeting taken
or held without notice to such a person shall have the same force and effect as
if the notice had been duly given. If such a person delivers to the Corporation
a written notice setting forth his then current address, the requirement that
notice be given to that person shall be reinstated.
ARTICLE V
OFFICERS
Section 1. General. The elected officers of the Corporation shall be a
President, Vice President, Treasurer and a Secretary. The Board of Directors
may also elect or appoint a Chairman of the Board, more Vice Presidents, one or
more Assistant Vice Presidents, one or more Assistant Secretaries, and one or
more Assistant Treasurers, all of whom shall also be officers. Two or more
offices may be held by the same person.
Section 2. Election. The Board of Directors shall elect the officers of
the Corporation at each annual meeting of the Board of Directors. The Board of
Directors may appoint such other officers and agents as it shall deem necessary
and shall determine the salaries of all officers and agents from time to time.
The
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officers shall hold office until their successors are chosen and qualified. No
officer need be a member of the Board of Directors except the Chairman of the
Board, if one be elected. Any officer elected or appointed by the Board of
Directors may be removed, with or without cause, at any time by a majority vote
of the whole Board. Election or appointment of an officer or agent shall not of
itself create contract rights.
Section 3. Chairman of the Board. The Chairman of the Board, if any,
shall be the Chief Executive Officer of the Corporation and, subject to the
provisions of these By-laws, shall have general supervision of the affairs of
the Corporation and shall have general and active control of all its business.
He shall preside, when present, at all meetings of shareholders and at all
meetings of the Board of Directors. He shall see that all orders and resolutions
of the Board of Directors and the shareholders are carried into effect. He shall
have general authority to execute bonds, deeds and contracts in the name of the
Corporation and affix the corporate seal thereto; to sign stock certificates; to
cause the employment or appointment of such employees and agents of the
Corporation as the proper conduct of operations may require, and to fix their
compensation, subject to the provisions of these By-laws; to remove or suspend
any employee or agent who shall have been employed or appointed under his
authority or under authority of an officer subordinate to him; to suspend for
cause, pending final action by the authority which shall have elected or
appointed him, any officer subordinate to the Chairman of the Board; and, in
general, to exercise all the powers and authority usually appertaining to the
chief executive officer of a corporation, except as otherwise provided in these
By-laws.
Section 4. President. In the absence of a Chairman of the Board, the
President shall be the ranking and Chief Executive Officer of the Corporation,
and shall have the duties and responsibilities, and the authority and power, of
the Chairman of the Board. The President shall be the Chief Operating officer of
the Corporation and as such shall have, subject to review and approval of the
Chairman of the Board, if one be elected, the responsibility for the operation
of the Corporation and the authority of the Chairman of the Board.
Section 5. Vice Presidents. In the absence of the President or in the
event of his inability or refusal to act, the Vice President (or in the event
there be more than one, the Vice Presidents in the order designated or, in the
absence of any designation, then in the order of their election) shall perform
the duties of the President, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the President. The Vice President
shall perform such other duties and have such other powers as the Board of
Directors, the Chief Executive Officer or the Chief Operating officer may from
time to time prescribe. The Vice President in charge of finance, if any,
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shall also perform the duties and assume the responsibilities described in
Section 9 of this Article for the Treasurer, and shall report directly to the
Chief Executive Officer of the Corporation.
Section 6. Assistant Vice Presidents. In the absence of a Vice
President or in the event of his inability or refusal to act, the Assistant Vice
President, if any (or, if there be more than one, the Assistant Vice Presidents
in the order designated or, in the absence of any designation, then in the order
of their election), shall perform the duties and exercise the powers of that
Vice President, and shall perform such other duties and have such other powers
as the Board of Directors, the Chief Executive officer, the Chief Operating
Officer or the Vice President under whose supervision he is appointed may from
time to time prescribe.
Section 7. Secretary. The Secretary shall attend and record minutes of
the proceedings of all meetings of the Board of Directors and any committees
thereof and all meetings of the shareholders. He shall file the records of such
meetings in one or more books to be kept by him for that purpose. Unless the
Corporation has appointed a transfer agent or other agent to keep such a record,
the Secretary shall also keep at the Corporation's registered office or
principal place of business a record of the original issuance of shares issued
by the Corporation and a record of each transfer of those shares that have been
presented to the Corporation for registration or transfer. He shall give, or
cause to be given, notice of all meetings of the shareholders and special
meetings of the Board of Directors, and shall perform such other duties as may
be prescribed by the Board of Directors or the Chief Executive officer, under
whose supervision he shall be. He shall have custody of the corporate seal of
the Corporation and he, or an Assistant Secretary, shall have authority to affix
the same to any instrument requiring it, and when so affixed, it may be attested
by his signature or by the signature of such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal of
the Corporation and to attest the affixing by his signature. The Secretary shall
keep and account for all books, documents, papers and records of the Corporation
except those for which some other officer or agent is properly accountable. He
shall have authority to sign stock certificates and shall generally perform all
the duties usually appertaining to the office of the secretary of a corporation.
Section 8. Assistant Secretaries. In the absence of the Secretary or in
the event of his inability or refusal to act, the Assistant Secretary, if any
(or, if there be more than one, the Assistant Secretaries in the order
designated or, in the absence of any designation, then in the order of their
election), shall perform the duties and exercise the powers of the Secretary and
shall perform such other duties and have such other powers as the Board of
Directors, the Chief Executive officer or the Secretary may from time to time
prescribe.
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Section 9. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys 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. He shall disburse the funds of the Corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements, and shall
render to the Chief Executive Officer and the Board of Directors, at its regular
meetings, or when the Board of Directors so requires, an account of all his
transactions as Treasurer and of the financial condition of the Corporation. If
required by the Board of Directors, he shall give the Corporation a bond (which
shall be renewed every six years) in such sum and with such surety or sureties
as shall be satisfactory to the Board of Directors for the faithful performance
of the duties of his office and for the restoration of the Corporation, in case
of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or
under his control belonging to the Corporation. The Treasurer shall be under the
supervision of the Vice President in charge of finance, if any, and he shall
perform such other duties as may be prescribed by the Board of Directors, the
Chief Executive Officer or any such Vice President in charge of finance.
Section 10. Assistant Treasurers. In the absence of the Treasurer or in
the event of his inability or refusal to act, the Assistant Treasurer, if one be
elected (or, if there shall be more than one, the Assistant Treasurer in the
order designated or, in the absence of any designation, then in the order of
their election), shall perform the duties and exercise the powers of the
Treasurer and shall perform such other duties and have such other powers as the
Board of Directors, the Chief Executive Officer or the Treasurer may from time
to time prescribe.
Section 11. Bonding. If required by the Board of Directors, all or
certain of the officers shall give the Corporation a bond, in such form, in such
sum and with such surety or sureties as shall be satisfactory to the Board, for
the faithful performance of the duties of their office and for the restoration
to the Corporation, in case of their death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of
whatever kind in their possession or under their control belonging to the
Corporation.
ARTICLE VI
CERTIFICATES REPRESENTING SHARES
Section 1. Form of Certificates. The Corporation shall deliver
certificates representing all shares to which shareholders
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are entitled. Certificates representing shares of the Corporation shall be in
such form as shall be approved and adopted by the Board of Directors and shall
be numbered consecutively and entered in the share transfer records of the
Corporation as they are issued. Each certificate shall state on the face thereof
that the Corporation is organized under the laws of the State of Nebraska, the
name of the registered holder, the number and class of shares, and the
designation of the series, if any, which said certificate represents, and either
the par value of the shares or a statement that the shares are without par
value. Each certificate shall also set forth on the back thereof a full or
summary statement of matters required by the Act or the Articles of
Incorporation to be described on certificates representing shares, and shall
contain a conspicuous statement on the face thereof referring to the matters set
forth on the back thereof. Certificates shall be signed by the Chairman of the
Board, President or any Vice President and the Secretary or any Assistant
Secretary, and may be sealed with the seal of the Corporation. Either the seal
of the Corporation or the signatures of the Corporation's officers or both may
be facsimiles. In case any officer or officers who have signed, or whose
facsimile signature or signatures have been used on such certificate or
certificates, shall cease to be such officer or officers of the Corporation,
whether because of death, resignation or otherwise, before such certificate or
certificates have been delivered by the Corporation or its agents, such
certificate or certificates may nevertheless be issued and delivered as though
the person or persons who signed the certificate or certificates or whose
facsimile signature or signatures have been used thereon had not ceased to be
such officer or officers of the Corporation.
Section 2. Lost Certificates. The Corporation may direct that a new
certificate be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate to be lost or
destroyed. When authorizing the issue of a new certificate, the Board of
Directors, in its discretion and as a condition precedent to the issuance
thereof, may require the owner of the lost or destroyed certificate, or his
legal representative, to advertise the same in such manner as it shall require
and/or give the Corporation a bond in such form, in such sum, and with such
surety or sureties as it may direct as indemnity against any claim that may be
made against the Corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
Section 3. Transfer of Shares. Shares of stock shall be transferable
only on the share transfer records of the Corporation by the holder thereof in
person or by his duly authorized attorney. Subject to any restrictions on
transfer set forth in the Articles of Incorporation, these By-laws or any
agreement among shareholders to which this Corporation is a party or has notice,
upon surrender to the Corporation or to the transfer agent of the Corporation of
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a certificate representing shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the Corporation or the transfer agent of the Corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
Section 4. Registered Shareholders. Except as otherwise provided in the
Act or other Nebraska law, the Corporation shall be entitled to regard the
person in whose name any shares issued by the Corporation are registered in the
share transfer records of the Corporation at any particular time (including,
without limitation, as of the record date fixed pursuant to Section 5 or Section
6 of Article II hereof) as the owner of those shares 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.
ARTICLE VII
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 1. General. The Corporation may indemnify persons who are or
were a director, officer, employee or agent of the Corporation, or persons who
are not or were not directors, officers, employees or agents of the Corporation
but who are or were serving at the request of the Corporation as a director,
officer, trustee, employee, agent or similar functionary of another foreign or
domestic corporation, trust, partnership, joint venture, sole proprietorship,
employee benefit plan or other enterprise (such persons collectively referred to
herein as "Corporate Functionaries") against any and all liability and
reasonable expense that may be incurred by them in connection with or resulting
from (a) any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, arbitrative or investigative, (b) an
appeal in such an action, suit or proceeding, or (c) any inquiry or
investigation that could lead to such an action, suit or proceeding, all to the
full extent permitted by the Act. The rights of indemnification provided for in
this Article VII shall be in addition to all rights to which any Corporate
Functionary may be entitled under any agreement or vote of shareholders or as a
matter of law or otherwise.
Section 2. Insurance. The Corporation may purchase or maintain
insurance on behalf of any Corporate Functionary against any liability asserted
against him and incurred by him in such a capacity or arising out of his status
as a Corporate Functionary, whether or not the Corporation would have the power
to indemnify him or her against the liability under the Act or these By-laws;
provided, however, that if the insurance or other arrangement is with a person
or entity that is not regularly engaged in the business of providing insurance
coverage, the insurance or
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arrangement may provide for payment of a liability with respect to which the
Corporation would not have the power to indemnify the person only if including
coverage for the additional liability has been approved by the shareholders of
the Corporation. Without limiting the power of the Corporation to procure or
maintain any kind of insurance or arrangement, the Corporation may, for the
benefit of persons indemnified by the Corporation, (i) create a trust fund, (ii)
establish any form of self-insurance, (iii) secure its indemnification
obligation by grant of any security interest or other lien on the assets of the
Corporation, or (iv) establish a letter of credit, guaranty or surety
arrangement. Any such insurance or other arrangement may be procured, maintained
or established within the Corporation or its affiliates or with any insurer or
other person deemed appropriate by the Board of Directors of the Corporation
regardless of whether all or part of the stock or other securities thereof are
owned in whole or in part by the Corporation. In the absence of fraud, the
judgment of the Board of Directors of the Corporation as to the terms and
conditions of such insurance or other arrangement and the identity of the
insurer or other person participating in an arrangement shall be conclusive, and
the insurance or arrangement shall not be voidable and shall not subject the
directors approving the insurance or arrangement to liability, on any ground,
regardless of whether directors participating in approving such insurance or
other arrangement shall be beneficiaries thereof.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Distributions and Share Dividends. Distributions or share
dividends to the shareholders of the Corporation, subject to the provisions of
the Act and the Articles of Incorporation and any agreements or obligations of
the Corporation, if any, may be declared by the Board of Directors at any
regular or special meeting. Distributions may be declared and paid in cash or in
property (other than shares or rights to acquire shares of the Corporation),
provided that all such declarations and payments of distributions, and all
declarations and issuances of share dividends, shall be in strict compliance
with all applicable laws and the Articles of Incorporation.
Section 2. Reserves. There may be created by resolution of the Board of
Directors out of the surplus of the Corporation such reserve or reserves as the
Board of Directors from time to time, in its discretion, deems proper to provide
for contingencies, or to equalize distributions or share dividends, or to repair
or maintain any property of the Corporation, or for such other proper purpose as
the Board shall deem beneficial to the Corporation, and the Board may increase,
decrease or abolish any reserve in the same manner in which it was created.
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Section 3. Fiscal Year. The fiscal year of the Corporation shall be
determined by the Board of Directors.
Section 4. Seal. The Corporation shall have a seal which may be used by
causing it or a facsimile thereof to be impressed or affixed or in any manner
reproduced. Any officer of the Corporation shall have authority to affix the
seal to any document requiring it.
Section 5. Resignation. Any director, officer or agent of the
Corporation may resign by giving written notice to the President or the
Secretary. The resignation shall take effect at the time specified therein, or
immediately if no time is specified therein. Unless specified in such notice,
the acceptance of such resignation shall not be necessary to make it effective.
ARTICLE IX
AMENDMENTS TO BY-LAWS
Unless otherwise provided by the Articles of Incorporation or a by-law
adopted by the shareholders of the Corporation, and except as otherwise
restricted by the Act, these By-laws may be amended or repealed, or new By-laws
may be adopted, at any meeting of the shareholders of the Corporation or of the
Board of Directors at which a quorum is present, by the affirmative vote of the
holders of a majority of the shares or the directors, as the case may be,
present at such meeting.
CERTIFICATION
I, M. Douglas Adkins, Secretary of the corporation, hereby certify that
the foregoing is a true, accurate and complete copy of the By-laws of the
Corporation adopted by its sole shareholder as of January 22, 1991.
/s/ M. DOUGLAS ADKINS
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M. Douglas Adkins, Secretary
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