<PAGE>
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES
OF SMALL BUSINESS ISSUERS
Under Section 12(b) or (g) of the Securities Exchange Act of 1934
CE Software, Inc.
(Name of Small Business Issuer in its Charter)
Iowa 42-1298712
------------------------------- -------------------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
1801 Industrial Circle, West Des Moines, Iowa 50265
--------------------------------------------- -----
(Address of principal executive offices) (zip code)
Issuer's telephone number (515) 221-1801
Securities to be registered under Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
None N/A
------------------- ------------------------------
Securities to be registered under Section 12(g) of the Act:
Common Stock, $.10 par value
----------------------------
(Title of class)
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<TABLE>
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CROSS REFERENCE OF INFORMATION FOR FORM 10SB
<S> <C> <C>
ITEM NO. ITEM CAPTION LOCATION IN DOCUMENT
Part I
Item 1. Description of Business Incorporated by reference from
CESH 10-KSB
Item 2. Management's Discussion and Analysis or Plan of
Operations Incorporated by reference from
CESH 10-KSB
Item 3. Description of Property Incorporated by reference from
CESH 10-KSB
Item 4. Security Ownership of Certain Beneficial Owners &
Managmt p. 58
Item 5. Directors, Executive Officers, Promoters, and Control
Persons p. 36
Item 6. Executive Compensation p. 60
Item 7. Certain Relationships and Related Transactions p. 29
See "Interests of Directors and Officers in the Merger and
Distribution of CE Software Stock that are Different from your
Interests or which may Present Conflicts of Interest"
Item 8. Description of Securities p. 40
Part II
Item 1. Market Price of and Dividends on the Registrant's
Common Equity and other Shareholder Matters p. 36
Item 2. Legal Proceedings p. 37
Item 3. Changes in and Disagreements with Accountants None
Item 4. Recent Sales of Unregistered Securities None
Item 5. Indemnification of Directors and Officers p. 37
Part F/S
Financial Statements pp. 11 and 64
Part III
Item 1. Index to Exhibits See below
Item 2. Description of Exhibits
3.1 Articles of Incorporation E-1
</TABLE>
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<TABLE>
<CAPTION>
<S> <C>
3.2 Bylaws E-4
</TABLE>
<PAGE>
Index to Exhibits - Form 10SB
Exhibit Description Page Number
3.1 Articles of Incorporation E-1
3.2 Bylaws E-4
<PAGE>
SIGNATURE - FORM 10SB
In accordance with Section 12 of the Securities Exchange Act of 1934, the
registrant caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized.
CE SOFTWARE, INC.
-----------------
(registrant)
Date By:
-------------------------- --------------------------
John S. Kirk, President
<PAGE>
EXHIBIT 3.1 TO FORM 10SB
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
CE SOFTWARE, INC.
TO THE SECRETARY OF STATE
OF THE STATE OF IOWA:
Pursuant to sections 1003 and 1007 of the Iowa Business Corporation Act,
the undersigned corporation adopts the following Amended and Restated Articles
of Incorporation:
ARTICLE 1
NAME
----
The name of the corporation is CE Software, Inc. (the "Corporation").
ARTICLE 2
SHARES
------
The aggregate number of shares the corporation has authority to issue shall
be 10,000,000 shares, all of which shall be designated Common Stock with a par
value of $.10. All of the shares of Common Stock of the corporation of the par
value of $1.00 issued and outstanding immediately prior to the time this
amendment becomes effective shall be and are by this means automatically
reclassified and changed (without any further act) into shares of the par value
of $.10, the number of which shall equal the product derived from multiplying
the number of such shares by 10. This amendment shall become effective without
increasing or decreasing the amount of stated capital or paid-in surplus of the
corporation, and shall constitute a 1 for 10 stock split.
ARTICLE 3
DIRECTORS
---------
The number of directors shall be the number specified in or fixed in
accordance with the Bylaws. The Board of Directors shall have power to fix or
change the number of directors, unless the shareholders, in amending or
repealing the bylaws, provide expressly that the Board of Directors shall not
amend or repeal the bylaw establishing the number of directors.
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ARTICLE 4
NONLIABILITY AND INDEMNIFICATION
--------------------------------
A. A director of this Corporation shall not be personally liable to the
Corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its shareholders; (ii) for acts or
omissions not in good faith or which involve intentional misconduct or knowing
violation of law; (iii) for a transaction from which the director derived an
improper personal benefit; or (iv) for an unlawful distribution as described in
section 833 of the Iowa Business Corporation Act (or any similar provision of
any subsequent law enacted in Iowa). If the law of the Corporation's state of
incorporation is hereafter changed to permit further elimination or limitation
of the liability of directors for monetary damages to the Corporation or its
shareholders, then the liability of a director of this Corporation shall be
eliminated or limited to the fullest extent then permitted.
B. Each individual who is or was a director or officer of the Corporation
(and the heirs, executors, personal representatives, or administrators of such
individual) who was or is made a party to or is involved in any threatened,
pending, or completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative, by reason of the fact that such person is or
was a director or officer of the Corporation or is or was serving at the request
of the Corporation as a director, officer, partner, trustee, employee, or agent
of another corporation, partnership, joint venture, trust, employee benefit
plan, or other enterprise ("Indemnitee") shall be indemnified and held harmless
by the Corporation to the fullest extent permitted by applicable law, as the
same exists or may hereafter be amended. In addition to the indemnification
conferred in this article, the Indemnitee shall also be entitled to have paid
directly by the Corporation the expenses reasonably incurred in defending any
such proceeding against such Indemnitee in advance of its final disposition, to
the fullest extent authorized by applicable law, as the same exists or may
hereafter be amended. The right to indemnification conferred in this Article
shall be a contract right.
C. The Corporation may, by action of the Board of Directors, provide
indemnification to such of the officers, employees, and agents of the
Corporation to such extent and to such effect as the Board of Directors shall
determine to be appropriate and authorized by applicable law.
D. The rights and authority conferred in this article shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of the Articles of Incorporation, or Bylaws of the
Corporation, agreement, vote of shareholders or disinterested directors, or
otherwise.
E. Any repeal or amendment of this article by the shareholders of the
Corporation shall not adversely affect any right or protection of a director or
officer existing at the time of such repeal or amendment.
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ARTICLE 5
PREEMPTIVE RIGHTS
-----------------
No holder of any shares of the stock of the Corporation of any class shall
have any preemptive right to purchase, subscribe for, or otherwise acquire any
shares of stock of the Corporation of any class now or hereafter authorized, or
any securities exchangeable for or convertible into such shares, or any warrants
or other instruments evidencing rights or options to subscribe for, purchase, or
otherwise acquire such shares.
ARTICLE 6
CERTIFICATE OF ADOPTION
-----------------------
A. The duly adopted Amended and Restated Articles of Incorporation set
forth above supersede the original Articles of Incorporation of the Corporation
and all amendments to them.
B. The Board of Directors adopted these Amended and Restated Articles of
Incorporation to amend the Articles of Incorporation which required shareholder
approval. These Amended and Restated Articles of Incorporation were approved by
the shareholders on ____________, 2000 to be effective upon filing with the
Secretary of State.
C. The designation, number of outstanding shares, number of votes
entitled to be cast by each voting group entitled to vote separately on the
Restated Articles of Incorporation, and the number of votes of each voting group
indisputably represented at the meeting are as follows:
<TABLE>
<CAPTION>
VOTES ENTITLED
TO BE CAST ON VOTES
DESIGNATION SHARES RESTATED REPRESENTED
OF GROUP OUTSTANDING ARTICLES AT MEETING
<S> <C> <C> <C>
Common 100 100 100
</TABLE>
The total number of votes cast for and against these Amended and Restated
Articles of Incorporation by each voting group entitled to vote separately on
the Amended and Restated Articles of Incorporation is as follows:
<TABLE>
<CAPTION>
VOTING VOTES VOTES
GROUP FOR AGAINST
<S> <C> <C>
Common 100 -0-
</TABLE>
D. The number of votes cast for the Restated Articles of Incorporation by
each voting group was sufficient for approval by that voting group.
Dated this ____ day of _______________, 2000
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CE SOFTWARE, INC.
By:_________________________________
John S. Kirk, President
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<PAGE>
APPENDIX E TO THE JOINT DISCLOSURE STATEMENT
EXHIBIT 3.2 TO FORM 10SB
BYLAWS
OF
CE Software, Inc.
(an Iowa Corporation)
(hereinafter referred to as "Corporation")
ARTICLE 1
PRINCIPAL OFFICE
----------------
The principal office of the Corporation shall be located in West Des
Moines, Polk County, Iowa or as identified in the most recent annual report
filed by the Corporation with the Iowa Secretary of State.
ARTICLE 2
NUMBER OF DIRECTORS
-------------------
The number of directors shall be such number as the board of directors
shall at the time have designated. In the absence of any such designation, such
number shall be not less than three (3) persons or more than five (5) persons.
ARTICLE 3
MEETINGS OF SHAREHOLDERS
------------------------
Section 3.1 Annual Meeting. The annual meeting of the shareholders for
the election of directors and for the transaction of such other business as may
properly come before the meeting, shall be held during the first quarter of the
calendar year at such place and time as the board of directors shall each year
fix.
Section 3.2 Special Meetings. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by the Iowa Business
Corporation Act or the Articles of Incorporation, may be called by the President
or the board of directors, and shall be called by the board of directors upon
the written demand, signed, dated and delivered to the Secretary, of the
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holders of at least ten percent of all the votes entitled to be cast on any
issue proposed to be considered at the meeting. Such written demand shall state
the purpose or purposes for which such meeting is to be called. The time, date
and place of any special meeting shall be determined by the board of directors,
or, at its direction, by the President.
Section 3.3 Notice of Meetings. Notice of (i) the place, date and time of
all meetings of shareholders; (ii) the initial authorization or issuance,
subsequent to the next preceding shareholders meeting, of shares for promissory
notes or promises to render services in the future; (iii) any indemnification of
a director required by law to be reported to shareholders; and, (iv) in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered not less than ten (10) days nor more than sixty (60) days
before the date of the meeting to each shareholder entitled to vote at such
meeting and to such other shareholders as are required by law to be given such
notice. The board of directors may establish a record date for the
determination of shareholders entitled to notice, as provided in Section 6.9 of
these bylaws. Notice of adjourned meetings need only be given if required by
law or Section 3.6 of these bylaws.
Section 3.4 Waiver of Notice.
(a) A written waiver of notice of any meeting of the shareholders signed
by any shareholder entitled to such notice, whether before or after the time
stated in such notice for the holding of such meeting, shall be equivalent to
the giving of such notice to such shareholder in due time as required by law and
these bylaws.
(b) A shareholder's attendance at any shareholders meeting, in person or
by proxy, waives (i) giving of notice of such meeting and irregularities in any
notice given, unless the shareholder at the beginning of the meeting or promptly
upon the shareholder's arrival objects to holding the meeting or transacting
business at the meeting, and (ii) waives objection to consideration of a
particular matter at the meeting that is not within the purpose or purposes
described in the meeting notice, unless the shareholder objects to considering
the matter when it is presented.
Section 3.5 Voting List. After fixing a record date for a meeting, the
Secretary shall prepare an alphabetical list of the names of all shareholders
who are entitled to notice of the shareholders meeting. The list must be
arranged by voting group and within each voting group by class or series of
shares, and show the address of and number of shares held by each shareholder.
The shareholders list must be available for inspection by any shareholder
beginning two business days after notice of the meeting is given for which the
list was prepared and continuing through the meeting, at the Corporation's
principal office or at a place identified in the meeting notice in the city
where the meeting will be held. A shareholder, or a shareholder's agent or
attorney, is entitled on written demand to inspect and, subject to the
requirements of law, to copy the list, during regular business hours and at the
person's expense, during the period it is available for inspection. The
Corporation shall make the shareholders list available at the
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meeting, and any shareholder, or a shareholder's agent or attorney, is entitled
to inspect the list at any time during the meeting or any adjournment.
Section 3.6 Quorum.
(a) At any meeting of the shareholders, a majority of the votes entitled
to be cast on the matter by a voting group constitutes a quorum of that voting
group for action on that matter, unless the representation of a different number
is required by law, and in that case, the representation of the number so
required shall constitute a quorum. If a quorum shall fail to attend any
meeting, the chairman of the meeting or a majority of the votes present may
adjourn the meeting to another place, date or time.
(b) When a meeting is adjourned to another place, date or time, notice
need not be given of the adjourned meeting if the place, date and time thereof
are announced at the meeting at which the adjournment is taken; provided,
however, that if the date of any adjourned meeting is more than one hundred
twenty (120) days after the date for which the meeting was originally noticed,
or if a new record date is fixed for the adjourned meeting, notice of the place,
date and time of the adjourned meeting shall be given in conformity herewith. At
any adjourned meeting, any business may be transacted which might have been
transacted at the original meeting.
Section 3.7 Organization.
(a) The Chairman of the Board or such person as the board of directors may
have designated, or, in the absence of such a person, the President, or in his
or her absence, such person as shall be designated by the holders of a majority
of the shares present at the meeting, shall call meetings of the shareholders to
order and shall act as chairman of such meetings.
(b) The Secretary of the Corporation shall act as Secretary at all
meetings of the shareholders, but in the absence of the Secretary at any meeting
of the shareholders, the presiding officer may appoint any person to act as
Secretary of the meeting.
Section 3.8 Voting of Shares.
(a) Every shareholder entitled to vote may vote in person or by proxy.
Except as otherwise provided by law, each outstanding share regardless of class,
shall be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. Unless otherwise provided by law, at each meeting for election of
directors, each shareholder entitled to vote shall be entitled to vote the
number of shares owned by the shareholder for as many persons as there are
directors to be elected and for whose election such shareholder has a right to
vote, and directors shall be elected by a plurality of the votes cast.
(b) The shareholders having the right to vote shares at any meeting shall
only be those of record on the stock books of the Corporation, on the record
date fixed pursuant to the provisions of Section 6.9 of these bylaws or by law.
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(c) Absent special circumstances, the shares of the Corporation held by
another corporation, if a majority of the shares entitled to vote for the
election of directors of such other corporation is held by the Corporation,
shall not be voted at any meeting.
(d) Voting by shareholders on any question or in any election may be viva
voce unless the chairman of the meeting shall order or any shareholder shall
demand that voting be by ballot. On a vote by ballot, each ballot shall be
signed by the shareholder voting, or in the shareholder's name by proxy, if
there be such proxy, and shall state the number of shares voted by such
shareholder.
(e) If a quorum exists, action on a matter, other than the election of
directors, by a voting group is approved if the votes cast within the voting
group favoring the action exceed the votes cast opposing the action, unless a
greater number is required by law.
Section 3.9 Voting by Proxy or Representative.
(a) At all meetings of the shareholders, a shareholder entitled to vote
may vote in person or by proxy appointed in writing, and filed in accordance
with the procedure established for the meeting. No proxy shall be valid after
eleven months from the date of its execution, unless otherwise provided in the
proxy.
(b) Shares held by an administrator, executor, guardian, conservator,
receiver, trustee, pledgee, or another corporation may be voted as provided by
law.
Section 3.10 Inspectors. The board of directors in advance of any meeting
of shareholders may (but shall not be obliged to) appoint inspectors to act at
such meeting or any adjournment thereof. If inspectors are not so appointed,
the officer or person acting as chairman of any such meeting may, and on the
request of any shareholder or his or her proxy, shall make such appointment. In
case any person appointed as inspector shall fail to appear or act, the vacancy
may be filled by appointment made by the board of directors in advance of the
meeting, or at the meeting by the officer or person acting as chairman. The
inspectors shall register proxies, determine the number of shares outstanding,
the voting power of each, the shares represented at the meeting, the existence
of a quorum, the authenticity, validity and effect of proxies, receive votes,
ballots, assents or consents, hear and determine all challenges and questions in
any way arising in connection with the vote, count and tabulate all votes,
assents and consents, determine and announce the result, and do such acts as may
appear proper to conduct the election or vote with fairness to all shareholders.
The maximum number of such inspectors appointed shall be three, and no inspector
whether appointed by the board of directors or by the officer or person acting
as chairman need be a shareholder.
Section 3.11 Consent of Shareholders in Lieu of Meeting. Any action
required or permitted by law to be taken at a meeting of the shareholders, may
be taken without a meeting if a consent in writing setting forth the action so
taken shall be signed by the holders of outstanding
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shares having not less than ninety percent of the votes entitled to be cast at a
meeting at which all shares entitled to vote on the action were present and
voted, and are delivered to the Corporation for inclusion in the minutes.
Section 3.12 Conduct of Business. The chairman of any meeting of
shareholders shall determine the order of business and procedure at the meeting,
including such regulation of the manner of voting and the conduct of business as
seem to him or her to be in order.
ARTICLE 4
BOARD OF DIRECTORS
------------------
Section 4.1 Qualifications and General Powers. No director is required to
be an officer, shareholder or employee of the Corporation or a resident of the
State of Iowa. The business and affairs of the Corporation shall be managed by
the board of directors. The board of directors may authorize any officer or
officers, agent or agents, to enter into any contract or to execute and deliver
any instrument in the name and on behalf of the Corporation, and such authority
may be general or confined to specific instances.
Section 4.2 Increase in Number of Directors; Tenure. If the number of
directors is a fixed number as determined by these bylaws, then in case the
number of directors is increased by thirty percent or less of the number of
directors last approved by the shareholders, by amendment to these bylaws by the
board of directors or by resolution of the board of directors, or if the number
of directors is established as a range in these bylaws and the numbers of
directors last approved by the shareholders is less than the maximum of such
range, the directorships to be filled by reason thereof may be filled by the
affirmative vote of a majority of the directors, though less than a quorum of
the board of directors. Any director so elected shall serve only until the next
election of directors by the shareholders. Each director shall hold office
until the next succeeding annual meeting and until his or her successor shall
have been elected and qualifies, or until his or her death, resignation or
removal.
Section 4.3 Quorum and Manner of Acting. A majority of the number of
directors then holding office shall constitute a quorum for the transaction of
business; but if at any meeting of the board there be less than a quorum
present, a majority of the directors present may adjourn the meeting from time
to time until a quorum shall be present. Notice of any adjourned meeting need
not be given. At all meetings of directors, a quorum being present, the act of
the majority of the directors present at the meeting shall be the act of the
board of directors.
Section 4.4 Resignation. Any director of the Corporation may resign at
any time by giving written notice to the board of directors, its chairman or the
Corporation. The resignation of any director shall take effect upon delivery of
notice thereof or at such later date as shall be specified in such notice; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
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Section 4.5 Removal. A director shall be subject to removal, with or
without cause, at a meeting of the shareholders called for that purpose in the
manner prescribed by law.
Section 4.6 Vacancies. Any vacancy occurring in the board of directors
through death, resignation, removal or any other cause may be filled by the
affirmative vote of a majority of the remaining directors, though less than a
quorum of the board of directors. A director elected to fill a vacancy shall be
elected only until the next election of directors by the shareholders.
Section 4.7 Compensation of Directors. The directors shall be entitled to
be reimbursed for any expenses paid by them on account of attendance at any
regular or special meeting of the board of directors and the board may fix the
compensation of directors from time to time by resolution of the board.
Section 4.8 Place of Meetings, etc. The board of directors may hold its
meetings and keep the books and records of the Corporation (except that the
record of its shareholders must also be kept at the places described in Section
3.5 of these bylaws) at such place or places within or without the State of
Iowa, as the board may from time to time determine. A director may participate
in any meeting by any means of communication, including, but not limited to
telephone conference call, by which all directors participating may
simultaneously hear each other during the meeting.
Section 4.9 Annual Meeting. Immediately after the final adjournment of
each annual meeting of the shareholders for the election of directors, the board
of directors shall meet, at the same place where said meeting of shareholders
finally adjourned, for the purpose of organization, the election of officers and
the transaction of other business. Notice of such meeting need not be given.
Such meeting may be held at any other time or place as shall be specified in a
notice given as hereinafter provided for special meetings of the board of
directors or in a consent and waiver of notice thereof signed by all the
directors, at which meeting the same matters shall be acted upon as is above
provided.
Section 4.10 Regular Meetings. Regular meetings of the board of directors
shall be held at such place and at such times as the board of directors shall by
resolution fix and determine from time to time. No notice shall be required for
any such regular meeting of the board.
Section 4.11 Special Meetings; Notice.
(a) Special meetings of the board shall be held whenever called by
direction of the Chairman of the Board or the President, or one-third (1/3) of
the directors at the time being in office.
(b) Notice of each such meeting shall be delivered to each director, at
least two (2) days before the date on which the meeting is to be held, by mail,
e-mail, telegraph, cable, radio or
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wireless, or personally or by telephone. Each notice shall state the time and
place of the meeting. Unless otherwise indicated in the notice thereof, any and
all business may be transacted at a special meeting. At any meeting at which
every director shall be present, even without any notice, any business may be
transacted.
Section 4.12 Substitutes for Notice. A written waiver of notice signed by
a director, whether before or after the time of the meeting stated therein,
shall be equivalent to the giving of such notice in due time as required by
these bylaws. Attendance of a director at or participation in a meeting shall
constitute a waiver of notice of such meeting, unless the director at the
beginning of the meeting or promptly upon arrival objects to holding the meeting
or transacting business at the meeting and does not thereafter vote for or
assent to action taken at the meeting.
Section 4.13 Director's Assent Presumed. A director of the Corporation
who is present at a meeting of its board of directors at which action on any
corporate matter is taken shall be presumed to have assented to the action taken
unless the director's dissent shall be entered in the minutes of the meeting or
unless the director shall file a 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 4.14 Order of Business.
(a) At meetings of the board of directors, business shall be transacted in
such order as, from time to time, the board of directors may determine by
resolution.
(b) At all meetings of the board, the Chairman of the Board or chairman of
the meeting or in his or her absence, vice chairman, or in their absence the
President, or in the President's absence the most senior Vice President present,
or otherwise the person designated by the vote of a majority of the directors
present shall preside.
Section 4.15 Action Without Meeting. Any action required or permitted by
law to be taken at any meeting of the board of directors may be taken without a
meeting if the action is taken by all members of the board and if one or more
consents in writing setting forth the action so taken shall be signed by all of
the directors then in office and included in the minutes.
Section 4.16 Committees.
(a) The board of directors, by resolution adopted by the affirmative vote
of a majority of the number of directors then in office, may establish one or
more committees, including an executive committee, each committee to consist of
two (2) or more directors appointed by the board of directors. Any such
committee shall serve at the will of the board of directors. Each such
committee shall have the powers and duties delegated to it by the board of
directors. The board of directors may elect one or more of its members as
alternate members of any such
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committee who may take the place of any absent member or members at any meeting
of such committee, upon request by the President or the chairman of such
committee. Each such committee shall fix its own rules governing the conduct of
its activities as the board of directors may request.
(b) A committee of the board shall not: (i) authorize distributions by the
Corporation; (ii) approve or propose to shareholders of the Corporation action
that the law requires be approved by shareholders; (iii) fill vacancies on the
board of directors of the Corporation or on any of its committees; (iv) amend
the articles of incorporation of the Corporation; (v) adopt, amend or repeal
bylaws of the Corporation; (vi) approve a plan of merger not requiring
shareholder approval; (vii) authorize or approve reacquisition of shares by the
Corporation, except according to a formula or method prescribed by the board of
directors; or (viii) authorize or approve the issuance or sale or contract for
sale of shares, or determine the designation and relative rights, preferences
and limitations of a class or series of shares, except that the board of
directors may authorize a committee or a senior executive officer of the
Corporation to do so within limits specifically prescribed by the board of
directors.
ARTICLE 5
OFFICERS
--------
Section 5.1 Generally. The officers of the Corporation shall be a
Chairman of the Board, a President, one or more Vice Presidents (the number
thereof to be determined by the board of directors), a Secretary, a Treasurer
and such other officers as may from time to time be appointed by the board of
directors. None of the officers, except the Chairman of the Board, need be a
director. One person may hold the offices and perform the duties of any two or
more of said offices. In its discretion, the board of directors may delegate
the powers or duties of any officer to any other officer or agents,
notwithstanding any provision of these bylaws, and the board of directors may
leave unfilled for any such period as it may fix, any office except those of
President, Treasurer and Secretary. The officers of the Corporation shall be
appointed annually by the board of directors at the annual meeting thereof.
Each such officer shall hold office until the next succeeding annual meeting of
the board of directors and until his or her successor shall have been duly
chosen and shall qualify or until his or her death or until he or she shall
resign or shall have been removed.
Section 5.2 Removal. Any officer may be removed by the board of
directors, with or without cause, but such removal shall be without prejudice to
the contract rights, if any, of the person so removed.
Section 5.3 Powers and Duties of the Chairman of the Board. The Chairman
of the Board shall preside at all meetings of the Board at which he or she may
be present and shall have such other powers and duties as by the President and
the Board he or she may be called upon to perform.
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Section 5.4 Powers and Duties of the President. The President shall be
the chief executive officer of the Corporation. Subject to the provisions of
these bylaws and to the direction of the board of directors, he or she shall
have the responsibility for the general management and control of the business
and affairs of the Corporation and shall perform all duties and have all powers
which are commonly incident to the office of chief executive or which are
delegated to him or her by the board of directors. He or she shall have power
to sign all stock certificates, contracts and other instruments of the
Corporation which are authorized and shall have general supervision and
direction of all of the other officers, employees and agents of the Corporation.
Section 5.5 Powers and Duties of the Vice President(s). In the absence of
the President or in the event of the death, inability or refusal to act of the
President, the Vice President (or in the event there be more than one Vice
President, the Vice Presidents in the order designated at the time of their
election, or in the absence of any designation, the senior Vice President in
length of service) 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. Any Vice President may sign, with the Secretary or Assistant
Secretary, certificates for shares of the Corporation; and shall perform such
other duties and have such authority as from time to time may be assigned to
such Vice President by the President or by the board of directors.
Section 5.6 Powers and Duties of the Secretary. The Secretary shall (a)
keep minutes of all meetings of the shareholders and of the board of directors;
(b) authenticate records of the Corporation and attend to giving and serving all
notices of the Corporation as provided by these bylaws or as required by law;
(c) be custodian of the corporate seal (if any), the stock certificate books and
such other books, records and papers as the board of directors may direct, and
see that the corporate seal (if any) is affixed to all stock certificates and to
all documents, the execution of which on behalf of the Corporation under its
seal (if any) is duly authorized; (d) keep a stock record showing the names of
all persons who are shareholders of the Corporation, their post office addresses
as furnished by each such shareholder and the number of shares of each class of
stock held by them respectively and, at least ten (10) days before each
shareholders meeting, prepare a complete list of shareholders entitled to vote
at such meeting arranged in alphabetical order; (e) sign with the President or a
Vice President certificates for shares of the Corporation, the issuance of which
shall have been duly authorized; and (f) in general, perform all duties incident
to the office of Secretary and such other duties as from time to time may be
assigned to the Secretary by the President or the board of directors.
Section 5.7 Powers and Duties of the Treasurer. The Treasurer shall (a)
have custody of and be responsible for all moneys and securities of the
Corporation, shall keep full and accurate records and accounts in books
belonging to the Corporation, showing the transactions of the Corporation, its
accounts, liabilities and financial condition and shall see that all
expenditures are duly authorized and are evidenced by proper receipts and
vouchers; (b) deposit in the name of the Corporation in such depository or
depositories as are approved by the directors, all moneys that may come into the
Treasurer's hands for the Corporation's account; (c) render an account of
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the financial condition of the Corporation at least annually; and (d) in
general, perform such duties as may from time to time be assigned to the
Treasurer by the President or by the board of directors.
Section 5.8 Assistants. There shall be such number of Assistant
Secretaries and Assistant Treasurers as the board of directors may from time to
time authorize and appoint. The Assistant Secretaries and Assistant Treasurers,
in general, shall perform such duties as shall be assigned to them by the
Secretary, or the Treasurer, respectively, or by the President or the board of
directors. The board of directors shall have the power to appoint any person to
act as assistant to any other officer, or to perform the duties of any other
officer whenever for any reason it is impracticable for such officer to act
personally, and such assistant or acting officer so appointed shall have the
power to perform all the duties of the office to which he or she is so appointed
to be assistant, or as to which he or she is so appointed to act, except as such
power may be otherwise defined or restricted by the board of directors.
ARTICLE 6
SHARES, THEIR ISSUANCE AND TRANSFER
-----------------------------------
Section 6.1 Consideration for Shares. The board of directors may
authorize shares to be issued for consideration consisting of any tangible or
intangible property or benefit to the Corporation, including cash, promissory
notes, services performed, contracts for services to be performed, or other
securities of the Corporation. Before the Corporation issues shares, the board
of directors must determine that the consideration received or to be received
for shares to be issued is adequate. If the Corporation issues or authorizes
the issuance of shares for promissory notes or for promises to render services
in the future, the Corporation shall report in writing to the shareholders the
number of shares authorized or issued and the consideration received by the
Corporation with or before the notice of the next shareholders meeting.
Section 6.2 Certificates for Shares. Every shareholder of the Corporation
shall be entitled to a certificate or certificates, to be in such form as the
board of directors shall prescribe, certifying the number and class of shares of
the Corporation represented thereby.
Section 6.3 Execution of Certificates. The certificates for shares of
stock shall be numbered in the order in which they shall be issued and shall be
signed by the President or a Vice President and the Secretary or an Assistant
Secretary of the Corporation, and may be sealed with the seal (if any) of the
Corporation or a facsimile thereof. The signatures of the President or Vice
President and the Secretary or Assistant Secretary or other persons signing for
the Corporation upon a certificate may be facsimiles if the certificate is
countersigned by a transfer agent, or registered by a registrar, other than the
Corporation itself or an employee of the Corporation. In case any officer or
other authorized person who has signed or whose facsimile signature has been
placed upon such certificate for the Corporation shall have ceased to be such
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officer or employee or agent before such certificate is issued, it may be issued
by the Corporation with the same effect as if he or she were such officer or
employee or agent at the date of its issue.
Section 6.4 Share Record. A record shall be kept by the Secretary, or by
any other officer, employee or agent designated by the board of directors, of
the names and addresses of all shareholders and the number and class of shares
held by each represented by such certificates and the respective dates thereof
and in case of cancellation, the respective dates of cancellation.
Section 6.5 Cancellation. Every certificate surrendered to the
Corporation for exchange or transfer shall be cancelled, and no new certificate
or certificates shall be issued in exchange for any existing certificate until
such existing certificate shall have been so cancelled, except in cases provided
in Section 6.8 of these bylaws.
Section 6.6 Transfers of Stock. Transfers of shares of the capital stock
of the Corporation shall be made only on the books of the Corporation by the
record holder thereof, or by his or her attorney thereunto authorized by power
of attorney duly executed and filed with the Secretary of the Corporation, and
on surrender of the certificate or certificates for such shares properly
endorsed and the payment of all taxes thereon. The person in whose name shares
of stock stand on the books of the Corporation shall be deemed the owner thereof
for all purposes as regards the Corporation; provided, however, that whenever
any transfer of shares shall be made for collateral security, and not
absolutely, such fact, if known to the Secretary of the Corporation, shall be so
expressed in the entry of transfer.
Section 6.7 Regulations. The board of directors may make such other rules
and regulations as it may deem expedient, not inconsistent with law, concerning
the issue, transfer and registration of certificates for shares of the stock of
the Corporation.
Section 6.8 Lost, Destroyed, or Mutilated Certificates. In the event of
the loss, theft or destruction of any certificate of stock, another may be
issued in its place pursuant to such regulations as the board of directors may
establish concerning proof of such loss, theft or destruction and concerning the
giving of a satisfactory bond or bonds of indemnity.
Section 6.9 Record Date. The board may fix, in advance, a date as the
record date for any determination of shareholders for any purpose, such date in
every case to be not more than seventy (70) days prior to the date on which the
particular action or meeting, requiring such determination of shareholders, is
to be taken or held. If no record date is so fixed for the determination of
shareholders, the close of business on the day before the date on which the
first notice of a shareholder meeting is delivered or the date on which the
resolution of the board of directors declaring a share dividend or distribution
(other than in connection with a repurchase or reacquisition of shares) 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, unless the board of
directors selects a new record date or unless a new record date is required by
law.
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Section 6.10 Dividends. The directors may from time to time declare, and
the Corporation may pay, dividends on its outstanding shares in the manner and
upon the terms and conditions provided by law.
ARTICLE 7
MISCELLANEOUS PROVISIONS
------------------------
Section 7.1 Facsimile Signatures. In addition to the provisions for use
of facsimile signatures elsewhere specifically authorized in these bylaws,
facsimile signatures of any officer or officers of the Corporation may be used
whenever and as authorized by the board of directors or a committee thereof.
Section 7.2 Corporate Seal. The board of directors may by resolution (but
shall not be required to) provide for a corporate seal which, if provided, shall
be circular in form and shall bear the name of the Corporation and the words
"Corporate Seal" and "Iowa". The Secretary shall be custodian of any such seal.
The board of directors may also authorize a duplicate seal to be kept and used
by any other officer.
Section 7.3 Fiscal Year. The fiscal year of the Corporation shall be at
the close of business on the last day of September of each year.
Section 7.4 Voting of Stocks Owned by the Corporation. In the absence of
a resolution of the board of directors to the contrary, the President of the
Corporation or any Vice President acting within the scope of his or her
authority as provided in Section 5.5 of these bylaws is authorized and empowered
on behalf of the Corporation to attend, vote, grant discretionary proxies to be
used at any meeting of shareholders of any corporation in which this Corporation
holds or owns shares of stock, and in that connection, on behalf of this
Corporation, to execute a waiver of notice of any such meeting. The board of
directors shall have authority to designate any officer or person as a proxy or
attorney-in-fact to vote shares of stock in any other corporation in which this
Corporation may own or hold shares of stock.
Section 7.5 Shareholders' Right to Information.
(a) A shareholder of the Corporation is entitled to inspect and copy,
during regular business hours at the Corporation's principal office, any of the
following records of the Corporation, if the shareholder gives the Corporation
written notice of the shareholder's demand at least five business days before
the date on which the shareholder wishes to inspect and copy:
(1) Articles or Restated Articles of Incorporation and all amendments
currently in effect;
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(2) Bylaws or Restated Bylaws and all amendments currently in effect;
(3) Resolutions adopted by the board of directors creating one or
more classes or series of shares and fixing their relative rights,
preferences and limitations, if shares issued pursuant to those resolutions
are outstanding;
(4) Minutes of all shareholders meetings and records of all action
taken by shareholders without a meeting for the past three years;
(5) All written communications to shareholders generally within the
past three years, including the financial statements furnished for the past
three years;
(6) A list of the names and business addresses of the Corporation's
current directors and officers; and
(7) The Corporation's most recent annual report delivered to the Iowa
Secretary of State.
(b) If (i) a shareholder makes a demand in good faith and for a proper
purpose, (ii) the shareholder describes with reasonable particularity the
shareholder's purpose and the records the shareholder desires to inspect, and
(iii) the record requested is directly connected with the shareholder's stated
purpose, the shareholder shall also be entitled to inspect and copy, during
regular business hours at a reasonable location specified by the Corporation,
any of the following records of the Corporation provided the shareholder gives
the Corporation written notice of the shareholder's demand at least five
business days before the date on which the shareholder wishes to inspect and
copy any of the following:
(1) Excerpts from minutes of any meeting of the board of directors,
records of any actions of a committee of the board of directors while
acting as authorized by the board of directors on behalf of the
Corporation, minutes of any meeting of the shareholders, and records of
action taken by the shareholders or the board of directors without a
meeting to the extent not subject to inspection under the preceding
subparagraph;
(2) Accounting records of the Corporation; and
(3) The record of shareholders of the Corporation.
Section 7.6 Contracts, Loans, Checks and Deposits.
(a) The directors may authorize any officer or officers, agent or agents,
to enter into any contract or execute and deliver any instrument in the name of
and on behalf of the Corporation. Such authority may be general or confined to
specific instances.
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(b) No loans shall be contracted on behalf of the Corporation and no
evidences of indebtedness shall be issued in its name unless authorized by a
resolution of the directors. Such authority may be general or confined to
specific instances.
(c) All checks, drafts or other orders for the payment of money, notes or
other evidences of indebtedness issued in the name of the Corporation shall be
signed by such officer or officers, agent or agents of the Corporation and in
such manner as shall from time to time be determined by resolution of the
directors.
(d) All funds of the Corporation not otherwise employed shall be deposited
from time to time to the credit of the Corporation in such banks, trust
companies or other depositaries as the directors may select.
ARTICLE 8
INDEMNIFICATION OF DIRECTORS
----------------------------
Section 8.1 Mandatory Indemnity. Each individual who is or was a director
or officer of the Corporation (and the heirs, executors, personal
representatives or administrators of such individual) who was or is made a party
to, or is involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that such person is or was a director or officer of the Corporation
or is or was serving at the request of the Corporation as a director, officer,
partner, trustee, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise ("Indemnitee"), shall
be indemnified and held harmless by the Corporation to the fullest extent
permitted by applicable law, as the same exists or may hereafter be amended. In
addition to the indemnification conferred in this Article, the Indemnitee shall
also be entitled to have paid directly by the Corporation the expenses
reasonably incurred in defending any such proceeding against such Indemnitee in
advance of its final disposition, to the fullest extent authorized by applicable
law, as the same exists or may hereafter be amended. The right to
indemnification conferred in this Article shall be a contract right.
Section 8.2 Non-Exclusivity of Rights. The rights to indemnification
conferred in this Article shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, the Corporation's
Articles of Incorporation or any agreement, vote of shareholders or
disinterested directors or otherwise.
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ARTICLE 9
AMENDMENTS TO BYLAWS
--------------------
These bylaws may be amended or repealed by the board of directors or by the
shareholders.
Section 9.1 Amendment by Board of Directors. A proposed amendment
presented at a meeting of the board of directors at which a quorum is present
will be adopted if it receives the favorable vote of a majority of the directors
present.
Section 9.2 Amendment by the Shareholders. If any shareholder desires to
present an amendment to the bylaws for approval by the shareholders, that
proposed amendment must first be presented to the board of directors for
consideration. If the board of directors adopts the proposed amendment, the
bylaws are thereby amended. If the board of directors does not adopt the
proposed amendment, such shareholder may present the proposed amendment to the
shareholders at their next meeting. If a quorum exists at that meeting, the
proposed amendment will be adopted if it receives a favorable vote from a
majority of the shareholders present.
Section 9.3 Rights Reserved by Board of Directors. No provision of the
bylaws shall divest the board of directors of its rights and obligations under
Section 490.801 of the Iowa Business Corporation Act to manage the affairs of
the Corporation.
____________________________________
John S. Kirk, Secretary
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