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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
September 9, 1999
COMMERCIAL FEDERAL CORPORATION
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(Exact Name of Registrant as Specified in Charter)
Nebraska 1-11515 47-0658852
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(State or Other (Commission (I.R.S. Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
2120 South 72nd Street, Omaha, Nebraska 68124
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code:(402)554-9200
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Item 5. Other Events.
------------
On September 9, 1999, Franklin Mutual Advisers, LLC
("Franklin"), located at 51 John F. Kennedy Parkway, Short
Hills, New Jersey delivered notice to the Registrant of its
nomination of two individuals for election as directors at the
1999 Annual Meeting of Stockholders. Franklin's nominees are J.
Thomas Burcham and George R. Zoffinger. Franklin also provided
the name of Matthew P. Wagner as an alternate in the event
either of its two nominees were unable to serve. On September
29, 1999 the Registrant notified Franklin that it believes that
neither Mr. Burcham nor Mr. Wagner are eligible for election as
directors as they do not meet applicable requirements under the
Registrant's By-Laws and applicable federal law relating to
interlocking directorships as in effect on September 17, 1999,
the applicable deadline for director nominations under the
Registrant's By-Laws.
On September 28, 1999, the Registrant's Board of Directors
adopted an amendment to the Registrant's By-laws. The By-law
amendment provides that in order to qualify to serve as a member
of the Board of Directors of the Registrant, an individual must
not also serve as a management official of another federally
insured depository organization that operates branches in any
market in which the Registrant operates branches. This By-law
amendment was adopted because of recent experience with a former
director of the Registrant that operated a bank in direct compe
tition with the Registrant and because a pending change in
federal regulations will, when such change becomes effective on
January 1, 2000, loosen the restrictions currently in effect
with respect to such interlocking directorships. The By-law
amendment will prevent in the future an individual from serving
on the Board of Directors of the Registrant who would lack the
ability to act in the best interests of the Registrant's stock
holders given the inherent conflict of interest present when an
individual serves as a director of two competitors. The
amendment should not affect the nominees submitted by Franklin
as referenced above, since both Messrs. Burcham and Wagner had
impermissible interlocks under existing regulations in effect as
of the September 17, 1999 deadline for nominations with respect
to the upcoming annual meeting of shareholders of the
Registrant. As such, such persons were ineligible for
nomination under the Registrant's By-Laws provisions which
predate this amendment. The Registrant's By-Laws, as amended
are attached hereto as Exhibit 3 and
incorporated by reference herein.
On September 15, 1999, the Board of Directors appointed
Sharon G. Marvin to fill the vacancy arising from the resigna
tion of W.A. Krause.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
-----------------------------------------------------
Exhibit 3 By-Laws, as Amended
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SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly
authorized.
COMMERCIAL FEDERAL CORPORATION
By: /s/ James A. Laphen
--------------------------------------
James A. Laphen, President, Chief
Operating Officer and Chief Financial
Officer
(Duly Authorized and Principal Financial
Officer)
Date: October 5, 1999
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BY-LAWS
OF
COMMERCIAL FEDERAL CORPORATION
------------------------------
ARTICLE I
---------
SHAREHOLDERS
------------
Section 1. Annual Meeting.
--------- -------------- The annual meeting of the
shareholders shall be held on the third Tuesday in November, for
the purpose of electing directors and for the transaction of
such other business as may come before the meeting. If the day
fixed for the annual meeting shall be a legal holiday in the
State of Nebraska, such meeting shall be held on the next
succeeding business day. Annual meetings shall be held in the
office of the corporation or at such other place, either within
or without the State of Nebraska, as shall be determined by the
Board of Directors.
Section 2. Special Meetings.
--------- ---------------- Special meetings of the
shareholders may be called only as provided in the Articles of
Incorporation. Special meetings shall be held at such place,
either within or without the State of Nebraska, as shall be
stated in the notice.
Section 3. Notice of Meeting.
--------- ----------------- Written or printed notice
stating the place, day, and hour of the 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 (10) nor
more than fifty (50) days before the date of the meeting, either
personally or by mail, by or at the direction of the President,
the Secretary, or the officer or persons calling the meeting, to
each shareholder of record entitled to vote at such meeting.
Section 4. Closing of Transfer Books or Fixing of Record
--------- ---------------------------------------------
Date.
- ---- For the purpose of determining shareholders entitled to
notice of or to vote at any meeting of shareholders or any
adjournment thereof, or shareholders entitled to receive payment
of any dividend, or in order to make a determination of share
holders for any other proper purpose, the Board of Directors of
the corporation may provide that the stock transfer books shall
be closed for a stated period but not to exceed, in any case,
fifty (50) days. If the stock transfer books shall be closed
for the purpose of determining shareholders entitled to notice
of or to vote at a meeting of shareholders, such books shall be
closed for at least ten (10) days immediately preceding such
meeting. In lieu of closing the stock transfer books, 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 fifty (50) days and, in the case of a meeting
of shareholders, not less than ten (10) days prior to the date
on which the particular action, requiring such determination of
shareholders, is to be taken. If the stock
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transfer books 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 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 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.
Section 5. Voting Record.
--------- -------------
The officer or agent having charge of the stock transfer books
for shares of the corporation shall make, at least ten (10) days
before each meeting of share holders, a complete record of the
shareholders entitled to vote at such meeting, or any
adjournment thereof, arranged in alphabetical order with the
address of and the number of shares held by each. For a period
of ten (10) days prior to such meeting, the list shall be kept
on file at the registered office of the corporation and shall be
subject to inspection by any share holder at any time during
usual business hours. Such record, or a duplicate thereof,
shall also be produced and kept open at the time and place of
the meeting and shall be subject to the inspection of any
shareholder during the whole time of the meeting. The original
stock transfer book shall be prima facie evidence as to who are
the shareholders entitled to examine such record or transfer
books or to vote at any meeting of shareholders.
Section 6. Quorum.
--------- ------ A majority of the outstanding shares
entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of shareholders. The holders
or their representatives of a majority of the shares present at
a meeting, even though less than a majority of the shares out
standing, may adjourn the meeting from time to time without
notice other an announcement at the meeting, until such time as
a quorum is present. At any such adjourned meeting at which a
quorum is present, any business may be transacted which might
have been transacted at the original meeting. If a quorum is
present, the affirmative vote of the majority of the shares
represented at the meeting and entitled to vote on the subject
matter shall be the act of the shareholders, unless the vote of
a greater number is required by law, by the Articles of
Incorporation, or by these By-Laws.
Section 7. Proxies.
--------- ------- At all meetings of the shareholders,
a shareholder may vote either in person or by proxy executed in
writing by a shareholder or his duly authorized attorney-in-
fact. Proxies solicited on behalf of the management shall be
voted as directed by the shareholder or, in the absence of such
direction, as determined by a majority of the
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Board of Directors. No proxy shall be valid after eleven (11)
months from the date of its execution, unless otherwise provided
in the proxy.
Section 8. Voting of Shares.
--------- ---------------- Subject to the provisions
of Sections 9 and 10 of this Article I, each shareholder
entitled to vote shall be entitled to one (1) vote for each
share of stock held by him upon each matter submitted to a vote
at a meeting of shareholders.
Section 9. Voting of Shares by Certain Holders.
--------- ----------------------------------- Treasury
shares shall not be voted at any meeting or counted in
determining the total number of outstanding shares at any given
time.
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 in the name of a trustee may be voted by him, either in
person or by proxy.
Shares standing in the name of a receiver may be voted by
such receiver, and shares held by or under the control of a
receiver may be voted by such receiver without the transfer
thereof into his name if authority to do so be contained in an
appropriate order of the court by which such receiver was ap
pointed.
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.
Section 10. Cumulative Voting.
---------- ----------------- At each election for
directors, every shareholder entitled to vote at such election
shall have the right to vote, in person or by proxy, the number
of shares owned by him for as many persons as there are
directors to be elected and for whose election he has a right to
vote, or to cumulate said shares and give one candidate as many
votes as the number of directors multiplied by the number of his
shares shall equal, or to distribute them upon the same
principle among as many candidates as he shall think fit.
Section 11. Informal Action by Shareholders.
---------- ------------------------------- Any action
required to be taken at a meeting of the shareholders, or any
action which may be taken at a meeting of the
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shareholders, may be taken without a meeting 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
subject matter thereof. Such consent shall have the same force
and effect as a unanimous vote of the shareholders and may be
stated as such in any articles or document filed with the
Secretary of State under applicable state law.
Section 12. Inspectors of Election.
---------- ---------------------- In advance of any
meeting of shareholders, the Board of Directors may appoint any
persons, other than nominees for office, as inspectors of
election to act at such meeting or any adjournment thereof. The
number of inspectors shall be either one (1) or three (3). If
the Board of Directors so appoints either one (1) or three (3)
inspectors, that appointment shall not be altered at the
meeting. If inspectors of election are not so appointed, the
Chair man of the Board of Directors or the President may make
such appointment at the meeting. In case any person appointed
as inspector fails to appear or fails or refuses to act, the
vacancy may be filled by appointment by the Board of Directors
in advance of the meeting or at the meeting by the Chairman of
the Board of Directors or the President.
Unless otherwise prescribed by applicable regulations, the
duties of such inspectors shall include: determining the number
of shares of stock and the voting power of each share, the
shares of stock represented at the meeting, the existence of a
quorum, the authenticity, validity, and effect of proxies;
receiving votes, ballots, or consents; hearing and determining
all challenges and questions in any way arising in connection
with the right to vote; counting and tabulating all votes or
consents; determining the result; and such acts as may be proper
to conduct the election or vote with fairness to all
shareholders.
Section 13. Nominations.
---------- ----------- The Board of Directors shall
act as a Nominating Committee for selecting the management
nominees for election as directors. Except in the case of a
nominee substituted as a result of the death or other incapacity
of a management nominee, the Nominating Committee shall deliver
written nominations to the Secretary at least fifteen (15) days
prior to the date of the annual meeting. Provided such commit
tee makes such nominations, no nominations for directors except
those made by the Nominating Committee shall be voted upon at
the annual meeting except those made in accordance with the
provisions of Section 14 of these By-Laws as amended.
Section 14. Notice for Nominations and Proposals.
---------- ------------------------------------
Nominations for the election of directors and proposals for any
new business to be taken up at any annual or special meeting of
shareholders may be made by the Board of Directors of the
corporation or by any shareholder of the corporation entitled to
vote generally in the election of directors. In order for a
shareholder of the corporation to make any such nominations
and/or
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proposals, he or she shall give notice thereof in writing,
delivered or mailed by first class United States mail, postage
prepaid, to the Secretary of the corporation not less than sixty
(60) days prior to any such meeting. Each such notice given by
a shareholder with respect to nominations for the election of
directors shall set forth (i) the name, age, business address
and, if known, residence address of each nominee proposed in
such notice; (ii) the principal occupation or employment of each
such nominee; and (iii) the number of shares of stock of the
corporation which are beneficially owned by each such nominee.
In addition, the shareholder making such nomination shall
promptly provide any other information reasonably requested by
the corporation.
Each such notice given by a shareholder to the Secretary
with respect to business proposals to bring before a meeting
shall set forth in writing as to each matter: (i) a brief
description of the business desired to be brought before the
meeting and the reasons for conducting such business at the
meeting; (ii) the name and address, as they appear on the
corporation's books, of the shareholder proposing such business;
(iii) the class and number of shares of the corporation which
are beneficially owned by the shareholder; and (iv) any material
interest of the shareholder in such business. Notwithstanding
anything in the Articles of Incorporation to the contrary, no
business shall be conducted at the meeting except in accordance
with the procedures set forth in this Section 14.
The Chairman of the annual or special meeting of share
holders may, if the facts warrant, determine and declare to such
meeting that a nomination or proposal was not made in accordance
with the foregoing procedure, and, if he should so determine, he
shall so declare to the meeting and the defective nomination or
proposal shall be disregarded.
ARTICLE II
----------
DIRECTORS
---------
Section 1. Number and Qualification.
--------- ------------------------ The business and
affairs of the corporation shall be managed by a Board of
Directors, consisting of ten (10) directors, divided into
classes as specified in the Articles of Incorporation. The
directors need not be residents of the State of Nebraska, nor
shareholders of the corporation. All persons nominated for
director, whether by the Nominating Committee or otherwise,
shall meet all requirements imposed by the Federal Home Loan
Bank Board, and shall not attain their seventieth (70th)
birthday during the term for which they are nominated, provided,
however, that the Board of Directors may waive such requirement
by a two-thirds (2/3rds) affirmative vote of all directors.
Although the number and qualifications of the directors may be
changed from
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time to time by amendment to these By-Laws, no change shall
affect the incumbent directors during the terms for which they
were elected. Without limiting the foregoing, no person who is
a controlling person or management official of a federally
insured depository organization (other than affiliates of the
Corporation) that operates branches in any market in which the
Corporation operates branches shall be eligible to be nominated
for service, or to serve, as a director of the Corporation.
Section 2. Election and Tenure.
--------- ------------------- The directors shall be
divided into three (3) classes, as specified in the Articles of
Incorporation, and the members of each class shall be elected
for a term of three (3) years and until their successors are
elected and qualified, except for the initial terms of some
class members as specified in the Articles of Incorporation.
The members of one (1) class shall be elected annually.
Section 3. Removal and Vacancies.
--------- --------------------- The removal of directors
and the filling of director vacancies, which may occur for
any reason, shall be in accordance with the provisions specified
in the Articles of Incorporation.
Section 4. Quorum.
--------- ------ A majority of the number of directors
fixed by the By-Laws shall constitute a quorum for the
transaction of any business at any meeting of the Board of
Directors. The act of a majority of the directors present at a
meeting at which a quorum is present shall be the act of the
Board of Directors, unless a greater number is specified by the
Articles of Incorporation or these By-Laws. If less than a
quorum is present at any meeting, the majority of those present
may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum is present.
Section 5. Annual Meeting.
--------- -------------- The annual meeting of the
Board of Directors shall be held without notice other than this
By-Law immediately following adjournment of the annual meeting
of shareholders and shall be held at the same place as the
annual meeting of shareholders unless some other place is agreed
upon.
Section 6. Special Meetings.
--------- ---------------- Special meetings of the
Board of Directors may be called by the Chairman of the Board,
the President, or a majority of the Board of Directors, and
shall be held at the office of the corporation or at such other
place, either within or without the State of Nebraska, as the
notice may state.
Section 7. Notice.
--------- ------ Notice of special meetings shall be
mailed to each director at his last known address at least five
(5) days prior to the date of holding said meetings. Any
director may waive notice of any meeting. The attendance of a
director at a meeting shall constitute a waiver of notice of
such meeting, except where a director attends a
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meeting for the express purpose of objecting to the transaction
of any business because the meeting is not lawfully called or
convened. 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.
Section 8. Action Without a Meeting.
--------- ------------------------ Any action required
to be taken at a meeting of the Board of Directors, or of any
committee, may be taken without a meeting, if a consent in
writing, setting forth the action so taken, shall be signed by
all of the directors, or all of the members of the committee, as
the case may be. Such consent shall have the same effect as a
unanimous vote. The consent may be executed by the directors in
counterparts.
Section 9. Voting.
--------- ------ At all meetings of the Board of
Directors, each director shall have one (1) vote irrespective of
the number of shares he may hold. Members of the Board of
Directors may vote and participate in meetings by means of
conference telephone or similar communications equipment by
which all persons participating in the meeting can hear each
other.
Section 10. Presumption of Assent.
---------- --------------------- A director of the
corporation who is present at a meeting of the Board of
Directors at which action on any corporate matter is taken shall
be presumed to have assented to the action taken unless his
dissent shall be entered in the minutes of the meeting or unless
he shall file his written dissent to such action with the person
acting as the Secretary of the meeting before the adjournment
thereof or shall forward such dissent by registered 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 11. Compensation.
---------- ------------ By resolution of the Board of
Directors, the directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors, and may be
paid a fixed sum for attendance at each meeting of the Board of
Directors or a stated salary as director. No such payment shall
preclude any director from serving the corporation in any other
capacity and receiving compensation therefor.
Section 12. Committees.
---------- ---------- The Board of Directors may, by
resolution or resolutions passed by a majority of the whole
Board, appoint an Executive Committee, an Audit Committee, and
one or more other committees, each committee to consist of two
(2) or more directors of the corporation, which committees
shall, to the extent permitted by law, have and may exercise
such powers of the Board of Directors in the management of the
business and affairs of the corporation as shall be delegated to
them.
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Section 13. Advisory Directors.
---------- ------------------ The Board of Directors
may, by resolution, appoint advisory directors to the Board, who
shall serve as directors emeritus, and shall have such authority
and receive such compensation and reimbursement as the Board of
Directors shall provide. Advisory directors shall not have the
authority to participate by vote in the transaction of business.
ARTICLE III
-----------
OFFICERS
--------
Section 1. Number and Qualifications.
--------- ------------------------- The officers of
the corporation shall be a Chairman of the Board, a President,
one or more Vice Presidents (as the Board of Directors shall
determine), a Secretary, and a Treasurer, and such other
officers and agents as may be deemed necessary by the Board of
Directors. Any two (2) or more offices may be held by the same
person.
Section 2. Election and Tenure.
--------- ------------------- The officers of the
corporation shall be elected by the Board of Directors at its
annual meeting. Each officer shall hold office for a term of
one (1) year or until his successor shall have been duly elected
and shall have become qualified, unless his service is specified
by an employment contract of greater length or is terminated
sooner because of death, resignation, or otherwise. The Board
of Directors may authorize the corporation to enter into an
employment contract with any officer in accordance with state
law.
Section 3. Removal.
--------- ------- Any officer or agent of the corporation,
elected, or appointed by the Board of Directors, may be removed
by the Board of Directors whenever in its judgment the best
interests of the corporation should be served thereby, but such
removal shall be without prejudice to the contract rights, if
any, of the person so moved. Election or appointment of an
officer or agent shall not of itself create contract rights.
Section 4. Vacancies.
--------- --------- Vacancies occurring in any office
by reason of death, resignation, or otherwise may be filled by
the Board of Directors at any meeting.
Section 5. Chairman of the Board.
--------- --------------------- The Chairman of the
Board shall preside at all meetings of the shareholders and of
the Board of Directors at which he is present. He shall, in
general, perform all duties and have all powers incident to the
office of Chairman and shall perform such other duties and have
such other powers as from time to time may
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be assigned by the By-Laws or by the Board of Directors. The
Chairman shall be the Chief Executive Officer of the corporation
unless the Board of Directors designates the President to be the
Chief Executive Officer, and shall have general and active
charge of the business, affairs, and property of the
corporation. He may appoint officers and agents or employees
other than those appointed by the Board of Directors and shall
have supervision and control over the officers, agents, and
employees.
Section 6. The President.
--------- ------------- The President shall, in general,
perform all duties and have all power incident to the office of
President and shall perform such other duties and have such
other powers as from time to time may be assigned to him by
these By-Laws or by the Board of Directors or by the Chairman.
Unless the Board of Directors designates otherwise, the
President shall be the Chief Operating Officer of the
corporation, and shall be responsible for carrying out the
operating policies incident to the business of the corporation
and, subject to the authority of the Chief Executive Officer, he
shall have supervision over its officers, agents, and employees.
At the request of the Chairman or in the event of his absence or
his disability, the President shall perform all the duties of
the Chairman, and when so acting, shall have all the powers of
and be subject to all the restrictions on the Chairman.
Section 7. The Vice Presidents.
--------- ------------------- In the absence of the
President or in the event of his death, inability, or refusal to
act, the Vice President (or in the event there shall 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 such 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. Any Vice President may sign with the
Secretary or any other proper officer of the corporation
certificates for shares of the corporation; and shall perform
such other duties as from time to time may be assigned to him by
the President or by the Board of Directors.
Section 8. Secretary.
--------- --------- The Secretary shall: (a) keep
minutes of the proceedings of the shareholders and of the Board
of Directors in one or more books provided for that purpose; (b)
see that all notices are duly given in accordance with the
provisions of these By-Laws or as required by law; (c) be the
custodian of the corporate records and of the seal of the
corporation and see that the seal of the corporation is affixed
to all documents, the execution of which on behalf of the
corporation under its seal is duly authorized; (d) keep a
register of the post office address of each shareholder; (e)
sign with the Chairman of the Board of Directors, President, or
a Vice President certificates for shares of the corporation, the
issuance of which shall be authorized by resolution of the Board
of
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Directors; (f) have general charge of the stock transfer books
of the corporation; and (g) in general perform all duties
incident to the office of Secretary and such other duties as
from time to time may be assigned to him by the President or by
the Board of Directors.
Section 9. The Treasurer.
--------- ------------- The Treasurer shall: (a) have
charge and custody of and be responsible for all funds and
securities of the corporation; (b) receive and give receipts for
monies due and payable to the corporation from any source what
soever, and deposit all such monies in the name of the
corporation in such banks, trust companies, or in other
depositories as shall be selected in accordance with the
provisions of these By-Laws; (c) and in general perform all of
the duties incident to the office of Treasurer and such other
duties as from time to time may be assigned by the President or
by the Board of Directors. If required by the Board of
Directors, the Treasurer shall give a bond for the faithful
discharge of his duties in such sum and with such surety or
sureties as the Board of Directors shall determine.
Section 10. Salaries.
---------- -------- The salaries of the officers shall
be fixed from time to time by the Board of Directors, and no
officer shall be prevented from receiving such salary by reason
of the fact that he is also a director of the corporation.
ARTICLE IV
----------
SEAL
----
The corporate seal of the corporation shall contain the
name of the corporation and shall be in such form as the Board
of Directors shall prescribe.
ARTICLE V
---------
CERTIFICATES FOR SHARES AND THEIR TRANSFER
------------------------------------------
Section 1. Certificates for Shares.
--------- ----------------------- The shares of the
corporation shall be represented by certificates signed by the
Chairman of the Board of Directors or by the President or a Vice
President and by the Treasurer or by the Secretary of the
corporation, and may be sealed with the seal of the corporation
or a facsimile thereof. Any or all of the signatures 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
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employee of the corporation. If any officer who has signed or
whose facsimile signature has been placed upon such certificate
shall have ceased to be such officer before the certificate is
issued, it may be issued by the corporation with the same effect
as if he were such officer at the date of its issue.
Section 2. Form of Share Certificate.
--------- ------------------------- Each certificate
representing shares shall state upon the face thereof: that the
corporation is organized under the laws of the State of
Nebraska; the name of the person to whom issued; the number and
class of shares; the designation of the series, if any, which
such certificate represents; the par value of each share
represented by such certificate, or a statement that the shares
are without par value. Other matters in regard to the form of
the certificates shall be determined by the Board of Directors.
Section 3. Loss or Destruction.
--------- ------------------- In case of loss or
destruction of a certificate of stock, no new certificate shall
be issued in lieu thereof except upon satisfactory proof to the
Board of Directors of such loss or destruction, and upon the
giving of satisfactory security by bond or otherwise against
loss to the corporation.
Section 4. Transfer of Shares.
--------- ------------------ Transfer of shares of
capital stock of the corporation shall be made only on its stock
transfer books. Authority for such transfer shall be given only
by the holder of record thereof or by his legal representative,
who shall furnish proper evidence of such authority, or by his
attorney thereunto authorized by power of attorney duly executed
and filed with the corporation. Such transfer shall be made
only on surrender for cancellation of the certificate for such
shares. The person in whose name shares of capital stock stand
on the books of the corporation shall be deemed by the
corporation to be the owner thereof for all purposes.
ARTICLE VI
----------
DIVIDENDS AND BANK ACCOUNT
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Section 1. Dividends.
--------- --------- In addition to other dividends
authorized by law, the Board of Directors, by resolution, may
from time to time declare dividends to be paid out of the
unreserved and unrestricted earned surplus of the corporation,
but no dividend shall be paid when the corporation is insolvent,
when the payment thereof would render the corporation insolvent,
or when otherwise prohibited by law.
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Section 2. Bank Account.
--------- ------------ The funds of the corporation
shall be deposited in such banks, trust funds, or depositories
as the Board of Directors may designate and shall be withdrawn
upon the signature of the President and upon the signatures of
such other person or persons as the directors may by resolution
authorize.
ARTICLE VII
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AMENDMENTS
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Except as otherwise provided by law or by the Articles of
Incorporation, these By-Laws may be amended or repealed by the
Board of Directors at any annual or special meeting of the Board
of Directors or by the affirmative vote of the holders of not
less than seventy-five percent (75%) of all outstanding shares
of stock of the corporation entitled to vote in the election for
directors.
ARTICLE VIII
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WAIVER OF NOTICE
----------------
Whenever any notice is required to be given to any share
holder or director of the corporation under the provisions of
the Articles of Incorporation or under the provisions of
applicable state law, a waiver thereof in writing, signed by the
person or persons entitled to such notice, whether before or
after the time stated therein, shall be equivalent to the giving
of such notice.
ARTICLE IX
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INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES, AND AGENTS
-------------------------------
At the discretion of the Board of Directors, and subject
to the provisions of the Articles of Incorporation, the
corporation may indemnify any person who is or was a director,
officer, employee, or agent of the corporation, or is or was
serving at the request of the corporation as a director,
officer, employee, or agent of another corporation, partnership,
trust, or other enterprise as permitted by the Nebraska Business
Corporation Act, as amended from time to time.
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ARTICLE X
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DIRECTORS' INTEREST IN CONTRACTS
--------------------------------
In the absence of fraud, no contract or other transaction
between the corporation and any other person, corporation, firm,
syndicate, association, partnership, or joint venture shall be
either void or voidable or otherwise affected by reason of the
fact that one or more directors of the corporation are or become
directors or officers of such other corporation, firm,
syndicate, or association, or members of such partnership or
joint venture, or are pecuniarily or otherwise interested in
such contract or transaction, provided that (1) the fact such
director or directors of the corporation are so situated or so
interested, or both, if disclosed or known to the Board of
Directors or committee which authorizes, approves, or ratifies
the contract or transaction by a vote or consent sufficient for
the purpose without counting the votes or consents of such
interested directors; (2) that such fact is disclosed or known
to the shareholders entitled to vote and they authorize,
approve, or ratify such contract or transaction by vote or
written consent; or (3) the contract or transaction is fair and
reasonable to the corporation. Any director of the corporation
who is also a director or officer of such other corporation,
firm, syndicate, or association, or a member of such partnership
or joint venture or is pecuniarily or otherwise interested in
such contract or transaction, may be counted for the purpose of
determining the presence of a quorum at any meeting of the Board
of Directors which shall authorize any such contract or
transaction.
ARTICLE XI
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FISCAL YEAR
-----------
Section 1. Fiscal Year. The fiscal year of the corporation
shall begin on the 1st day of July in each year, or at such
other time as may be determined by the Board of Directors.
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