<PAGE>
FORM 8-B
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
REGISTRATION OF SECURITIES OF CERTAIN SUCCESSOR ISSUERS
FILED PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
MIDAMERICAN ENERGY COMPANY
(Exact name of registrant as specified in its charter)
IOWA 42-1425214
(State of incorporation) (I.R.S. Employer
Identification No.)
666 GRAND AVENUE, P. O. BOX 9244, DES MOINES, IOWA 50306-9244
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class to be so registered
COMMON STOCK, NO PAR VALUE
PREFERRED STOCK, NO PAR VALUE, $1.7375 SERIES
Name of each exchange on which each class is to be registered
NEW YORK STOCK EXCHANGE, INC.
Securities to be registered pursuant to Section 12(g) of the Act:
<TABLE>
<CAPTION>
<S> <C>
PREFERRED STOCK, NO PAR VALUE
$3.30 SERIES
$3.75 SERIES
$3.90 SERIES
$4.20 SERIES
$4.35 SERIES
$4.40 SERIES
$4.80 SERIES
$5.25 SERIES
$7.80 SERIES
</TABLE>
<PAGE>
ITEM 1. GENERAL INFORMATION
MidAmerican Energy Company ("Company") was organized on July 18, 1994 as a
corporation under the laws of the State of Iowa. The Company's fiscal year ends
on the 31st day of December.
ITEM 2. TRANSACTION OF SUCCESSION
Each of Midwest Resources Inc. ("Midwest Resources"), Midwest Power Systems
Inc. ("Midwest Power") and Iowa-Illinois Gas and Electric Company ("Iowa-
Illinois") are predecessors to the Company, and each has secutities registered
pursuant to Section 12(b) and/or Section 12(g) of the Securities Exchange Act of
1934, as ameneded ("1934 Act"). Midwest Resources, Midwest Power and Iowa-
Illinois will be merged with and into the Company on or about July 1, 1995
pursuant to an Agreement and Plan of Merger among the Company, Midwest
Resources, Midwest Power and Iowa-Illinois, dated as of July 26, 1994, as
amended and restated as of September 27, 1994 (a copy of which is incorporated
by reference herein as Exhibit No. 2). At the effective time of the merger, the
outstanding shares of common stock, without par value, of Midwest Resources
("Midwest Resources Common Stock") and the outstanding shares of common stock,
par value $1.00 per share, of Iowa-Illinois ("Iowa-Illinois Common Stock") will
be converted into the right to receive shares of common stock, no par value, of
the Company ("Company Common Stock"). Also, at the effective time of the
merger, outstanding shares of Midwest Power common stock, no par value, will be
cancelled and cease to exist. Each outstanding share of Midwest Resources
Common Stock (other than shares held by Midwest Resources or by Iowa-Illinois
or by any subsidiary of Midwest Resources or Iowa-Illinois, all of which will be
cancelled, or shares held by dissenting shareholders) will be converted into the
right to receive one share of Company Common Stock, and each outstanding share
of Iowa-Illinois Common Stock (other than shares held by Iowa-Illinois or by
Midwest Resources or by any subsidiary of Iowa-Illinois or Midwest Resources,
all of which will be cancelled, or shares held by dissenting shareholders) will
be converted into the right to receive 1.47 shares of Company Common Stock.
Additionally, at the effective time of the merger, each issued and
outstanding share of a series of Iowa-Illinois preference stock, no par value
("Iowa-Illinois Preference Stock"), (other than shares held by Iowa-Illinois or
by Midwest Resources or any subsidiary of Iowa-Illinois or Midwest Resources,
all of which will be cancelled without consideration and cease to exist, or
shares held by dissenting shareholders), will be converted into and become one
share of Company preferred stock, no par value ("Company Preferred Stock"), of
the respective series specified below:
<TABLE>
<CAPTION>
Iowa-Illinois Company
Preference Stock Preferred Stock
---------------- ---------------
<S> <C>
$7.80 Series $7.80 Series
$5.25 Series $5.25 Series
</TABLE>
2
<PAGE>
At the effective time of the merger, each issued and outstanding share of a
series of Midwest Power preferred stock, no par value ("Midwest Power Preferred
Stock"), (other than shares held by Midwest Resources or by Iowa-Illinois or any
subsidiary of Midwest Resources or Iowa-Illinois, all of which will be cancelled
without consideration and cease to exist, or shares held by dissenting
shareholders), will be converted into and become one share of Company Preferred
Stock of the respective series specified below:
<TABLE>
<CAPTION>
Midwest Power Company
Preferred Stock Preferred Stock
--------------- ---------------
<S> <C>
$3.30 Series $3.30 Series
$3.75 Series $3.75 Series
$3.90 Series $3.90 Series
$4.20 Series $4.20 Series
$4.35 Series $4.35 Series
$4.40 Series $4.40 Series
$4.80 Series $4.80 Series
$1.7375 Series $1.7375 Series
</TABLE>
The merger transaction is more fully described in the Joint Proxy
Statement/Prospectus dated November 3, 1994, filed pursuant to Rule 424(b) under
the Securities Act of 1933, as amended ("1993 Act"), and Rule 14a-6 under the
1934 Act with the Securities and Exchange Commission ("Commission") ("Joint
Proxy Statement/Prospectus") (incorporated herein by reference as Exhibit No.
1).
ITEM 3. SECURITIES TO BE REGISTERED
The number of shares of Company Common Stock presently authorized is
350,000,000 of which 103,784,200 shares will be issued at the effective time of
the merger and none of which shares will be held by or for the account of the
registrant.
The number of shares of Company Preferred Stock presently authorized is
100,000,000 of which 3,217,789 shares will be issued at the effective time of
the merger and none of which shares will be held by or for the account of the
registrant.
ITEM 4. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The description of the securities to be registered is set forth in the
"Description of Company Capital Stock" at pages 69 through 75 of the Joint Proxy
Statement/Prospectus (incorporated by reference herein as Exhibit No. 1) and
such description is incorporated herein by reference and is being filed herewith
pursuant to Rule 12b-23 under the 1934 Act.
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<PAGE>
ITEM 5. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements
Not applicable
(b) Exhibits
Exhibit
No. Description
-------- -----------
1 Definitive copy of Joint Proxy Statement/Prospectus
of the Company, Midwest Resources, Midwest Power
and Iowa-Illinois dated November 3, 1994 and filed
with the Commission pursuant to Rule 424 (b) of the
1933 Act and Rule 14a-6 of the 1934 Act, Registration
Number 33-56153 ("Joint Proxy Statement/Prospectus")*
2 Agreement and Plan of Merger among the Company, Midwest
Resources, Midwest Power and Iowa-Illinois dated as of July
26, 1994, as amended and restated as of September 27, 1994
(Annex I to the Joint Proxy Statement/Prospectus)*
3 Restated Articles of Incorporation of the Company , as
amended
4 Restated Bylaws of the Company
______________________
* Incorporated herein by reference
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<PAGE>
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized.
MIDAMERICAN ENERGY COMPANY
By Paul J. Leighton
-----------------------------------------
Name: Paul J. Leighton
Title: Vice President and Secretary
Dated: June 23, 1995
5
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
---------------
EXHIBITS
FILED WITH
FORM 8-B
UNDER
THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
---------------
MidAmerican Energy Company
(Exact name of registrant as specified in its charter)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
MidAmerican Energy Company
-----------------
EXHIBIT INDEX
Exhibit
No. Description
------- -----------
1 Definitive copy of Joint Proxy Statement/Prospectus
of the Company, Midwest Resources, Midwest Power
and Iowa-Illinois dated November 3, 1994 and filed
with the Commission pursuant to Rule 424 (b) of the
1933 Act and Rule 14a-6 of the 1934 Act, Registration
Number 33-56153 ("Joint Proxy Statement/Prospectus")*
2 Agreement and Plan of Merger among the Company, Midwest
Resources, Midwest Power and Iowa-Illinois dated as of July
26, 1994, as amended and restated as of September 27, 1994
(Annex I to the Joint Proxy Statement/Prospectus)*
3 Restated Articles of Incorporation of the Company , as
amended
4 Restated Bylaws of the Company
_______________________________
* Incorporated by reference
<PAGE>
RESTATED
ARTICLES OF INCORPORATION
OF
MIDAMERICAN ENERGY COMPANY
TO THE SECRETARY OF STATE
OF THE STATE OF IOWA:
Pursuant to the provisions of Section 409.1007 of the Iowa Business
Corporation Act, the undersigned corporation hereby adopts the following
Restated Articles of Incorporation ("Articles of Incorporation"):
ARTICLE I
The name of the corporation is "MidAmerican Energy Company" (hereinafter
sometimes called the "Corporation") and its registered office shall be located
at 666 Grand Avenue, Des Moines, Iowa 50306 with the right to establish and
maintain branch offices at such other points within and without the State of
Iowa as the Board of Directors of the Corporation may, from time to time,
determine. The name of the Corporation's registered agent at such registered
office is Paul J. Leighton, Vice President and Corporate Secretary.
ARTICLE II
The nature of the business or purposes to be conducted or promoted is to
engage in any or all lawful act or activity for which a corporation may be
incorporated under the Iowa Business Corporation Act.
ARTICLE III
A. The aggregate number of shares which the Corporation shall have
authority to issue is 350,000,000 shares of Common Stock, no par value ("Common
Stock"), and 100,000,000 shares of Preferred Stock, no par value ("Preferred
Stock").
B. The shares of authorized Common Stock shall be identical in all
respects and shall have equal rights and privileges. For all purposes, each
registered holder of Common Stock shall, at each meeting of shareholders, be
entitled to one vote for each share of Common Stock held, either in person or by
proxy duly authorized in writing. Except to the extent required by law or as
permitted by these Articles of Incorporation, as amended from time to time, the
registered holders of the shares of Common Stock shall have unlimited and
exclusive voting rights.
<PAGE>
C. The Board of Directors, at any time or from time to time, may, and is
hereby authorized to, issue and dispose of any of the authorized and unissued
shares of Common Stock and any treasury shares for such kind and amount of
consideration and to such persons, firms or corporations, as may be determined
by the Board of Directors, subject to any provisions of law then applicable.
The holders of Common Stock shall have no preemptive rights to acquire or
subscribe to any shares, or securities convertible into shares, of Common Stock.
D. The Board of Directors, at any time or from time to time may, and is
hereby authorized to, divide the authorized and unissued shares of Preferred
Stock into one or more classes or series and in connection with the creation of
any class or series to determine, in whole or in part, to the full extent now or
hereafter permitted by law, by adopting one or more articles of amendment to the
Articles of Incorporation providing for the creation thereof, the designation,
preferences, limitations and relative rights of such class or series, which may
provide for special, conditional or limited voting rights, or no rights to vote
at all, and to issue and dispose of any of such shares and any treasury shares
for such kind and amount of consideration and to such persons, firms or
corporations, as may be determined by the Board of Directors, subject to any
provisions of law then applicable.
E. The Board of Directors, at any time or from time to time may, and is
hereby authorized to, create and issue, whether or not in connection with the
issuance and sale of any shares of Common Stock, Preferred Stock or other
securities of the Corporation, warrants, rights and/or options entitling the
holders thereof to purchase from the Corporation any shares of Common Stock,
Preferred Stock or other securities of the Corporation. Such warrants, rights
or options shall be evidenced by such instrument or instruments as shall be
approved by the Board of Directors of the Corporation. The terms upon which,
the time or times (which may be limited or unlimited in duration) at or within
which, and the price or prices (which shall be not less than the minimum amount
prescribed by law, if any) at which any such shares or other securities may be
purchased from the Corporation upon the exercise of any such warrant, right or
option shall be fixed and stated in the resolution or resolutions of the Board
of Directors providing for the creation and issuance of such warrants, rights or
options. The Board of Directors is hereby authorized to create and issue any
such warrants, rights or options from time to time for such consideration, if
any, and to such persons, firms or corporations, as the Board of Directors may
determine.
F. The Corporation may authorize the issuance of some or all of the
shares of any or all of the classes of its capital stock without certificates.
G. The Corporation shall not be required to issue certificates
representing any fraction or fractions of a share of stock of any class but may
issue in lieu thereof one or more non-dividend bearing and non-voting scrip
certificates in such form or forms as shall be approved by the Board of
Directors, each scrip certificate representing a fractional interest in one
share of stock of any class. Such scrip certificates upon presentation together
with similar scrip certificates representing in the aggregate an interest in one
or more full shares of stock of any class shall entitle the holders thereof to
receive one or more full shares of stock of such class. Such scrip certificates
may contain such
2
<PAGE>
terms and conditions as shall be fixed by the Board of Directors and may become
void and of no effect after a period to be determined by the Board of Directors
and to be specified in such scrip certificates.
H. The Corporation shall be entitled to treat the person in whose name
any share of Common Stock or Preferred Stock is registered as the owner thereof
for all purposes and shall not be bound to recognize any equitable or other
claim to, or interest in, such share on the part of any person, whether or not
the Corporation shall have notice thereof except as may be expressly provided
otherwise by the laws of the State of Iowa.
ARTICLE IV
The term of corporate existence of the Corporation shall be perpetual.
ARTICLE V
A. All corporate powers shall be exercised by or under the authority of,
and the business and affairs of the Corporation shall be managed under the
direction of, the Board of Directors. The number of directors of the
Corporation shall be fixed by the Bylaws but shall be no less than ten (10) and
no greater than twenty-two (22), and such number may be increased or decreased
from time to time in accordance with the Bylaws, but no decrease shall have the
effect of shortening the term of any incumbent director. Directors shall be
elected by the shareholders at each annual meeting of the Corporation as
specified herein and in the Bylaws. Directors need not be shareholders.
B. Each director shall serve until his or her successor is elected and
qualified or until his or her prior death, retirement, resignation or removal.
Should a vacancy occur or be created, whether arising through death, resignation
or removal of a director or through an increase in the number of directors, such
vacancy shall be filled solely by a majority vote of the remaining directors
though less than a quorum of the Board of Directors. A director so elected to
fill a vacancy shall serve for the remainder of the then present term of office
of the Board of Directors.
C. Any director or the entire Board of Directors may be removed for cause
as set forth in this paragraph C. Removal of a director for cause must be
approved by the affirmative vote of the holders of shares of capital stock of
the Corporation having at least 75% of the votes of all outstanding shares of
capital stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class, only at a meeting called for the
purpose of removing the director and after notice stating that the purpose, or
one of the purposes, of the meeting is removal of the director. Any action for
removal of a director must be taken within one year of such cause.
3
<PAGE>
D. The Board of Directors, by a vote of a majority of the entire Board of
Directors, may appoint from the directors an executive committee and such other
committees as they may deem judicious; and to such extent as shall be provided
in the resolution of the Board of Directors or in the Bylaws, may delegate to
such committees all or any of the powers of the Board of Directors which may be
lawfully delegated, and such committees shall have and thereupon may exercise
all or any of the powers so delegated to them. The Board of Directors or the
Bylaws may provide the number of members necessary to constitute a quorum of any
committee and the number of affirmative votes necessary for action by any
committee.
E. The Board of Directors shall elect such officers of the Corporation as
specified in the Bylaws. All vacancies in the offices of the Corporation shall
be filled by the Board of Directors. The Board of Directors shall also have
authority to appoint such other managing officers as they may from time to time
determine.
ARTICLE VI
Special meetings of shareholders of the Corporation may be called at any
time by the Chairman of the Board of Directors or by the President on at least
ten days' notice to each shareholder entitled to vote at the special meeting, by
mail at such shareholder's last known post office address, specifying the time,
place and purpose or purposes of the special meeting.
ARTICLE VII
The private property of the shareholders of the Corporation shall be exempt
from all corporate debts.
ARTICLE VIII
A. In addition to any affirmative vote required by law or under any other
provision of these Articles of Incorporation:
(i) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into any Other Entity (as
hereinafter defined); or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Other Entity of any assets of the
Corporation or any Subsidiary having an aggregate Fair Market Value
(as hereinafter defined) of $25,000,000 or more; or
4
<PAGE>
(iii) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related transactions) of
any securities of the Corporation or any Subsidiary to any Other
Entity in exchange for cash, securities or other property (or a
combination thereof) having an aggregate Fair Market Value of
$25,000,000 or more; or
(iv) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation; or
(v) any reclassification of securities (including any reverse stock
split), recapitalization, reorganization, merger or consolidation of
the Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise involving any
Other Entity) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any
class of equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any Other Entity;
or
(vi) any direct or indirect purchase or other acquisition by the
Corporation of any equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act of
1934, as in effect on June 30, 1995) of any class from an Interested
Securityholder (as hereinafter defined) who has beneficially owned
such securities for less than two years prior to the date of such
purchase or any agreement in respect thereof,
shall require the affirmative vote of the holders of shares of capital stock of
the Corporation having at least 75% (excluding, in the case of (i) through (v)
above, shares beneficially owned by a 25% Shareholder (as hereinafter defined),
and, in the case of (vi) above, shares beneficially owned by such Interested
Securityholder) of the votes of all outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors, considered
for the purpose of this Article VIII as one class ("Voting Shares"). Such
affirmative vote shall be required notwithstanding the fact that no vote may be
required, or that some lesser percentage vote may be specified, by law or in any
agreement with any national securities exchange or otherwise.
B. The provisions of paragraph A of this Article VIII shall not be
applicable to any particular Business Combination (as hereinafter defined), and
such Business Combination shall require only such affirmative vote as is
required by law and any other provision of these Articles of Incorporation, if
all of the conditions specified in either of the following subparagraphs 1 and 2
shall have been satisfied.
1. A majority of the Continuing Directors (as hereinafter defined)
shall have approved the Business Combination (but only if a majority of the
Board of Directors are Continuing Directors); or
5
<PAGE>
2. All of the following conditions shall have been met:
a. The ratio of:
(i) the aggregate amount of the cash and the Fair
Market Value as of the date of consummation of the Business
Combination of other consideration to be received per share by
holders of a particular class or series of Voting Shares in such
Business Combination
to
(ii) the Fair Market Value per share of such class or series
of Voting Shares on the date of the first public announcement of
such Business Combination or the date on which any 25%
Shareholder became a 25% Shareholder, whichever is higher
is at least as great as the ratio (which ratio shall equal the number
one in the event that such 25% Shareholder has never beneficially
owned any shares of such class or series of Voting Shares) of
(x) the highest per share price (including brokerage
commissions, transfer taxes and soliciting dealers' fees) which
such 25% Shareholder has theretofore paid for any share of such
class or series of Voting Shares acquired by it
to
(y) the Fair Market Value per share of such class or series
of Voting Shares on the date of the initial acquisition by such
25% Shareholder of any share of such class or series of Voting
Shares;
b. The aggregate amount of the cash and Fair Market Value as of
the date of consummation of the Business Combination of other
consideration to be received per share by holders of each class or
series of Preferred Stock in such Business Combination is not less
than the highest preferential amount per share to which holders of
shares of such class or series of Preferred Stock would, respectively,
be entitled in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, regardless of whether
the Business Combination to be consummated constitutes such an event;
6
<PAGE>
c. The consideration to be received by holders of a particular
class or series of Voting Shares in such Business Combination shall be
in cash or in the same form and of the same kind as the consideration
paid by the 25% Shareholder in acquiring the shares of such class or
series of Voting Shares already owned by it;
d. After such 25% Shareholder has acquired ownership of not
less than 25% of the then outstanding Voting Shares (a "25% Interest")
and prior to the consummation of such Business Combination:
(i) the 25% Shareholder shall have taken steps to
ensure that the Corporation's Board of Directors includes at all
times representation by Continuing Director(s) proportionate to
the ratio that the Voting Shares which from time to time are
owned by persons who are not 25% Shareholders ("Public Holders")
bear to all Voting Shares outstanding at such respective times
(with a Continuing Director to occupy any resulting fractional
board position);
(ii) there shall have been no reduction in the rate of
distributions ("Dividends") payable on the Common Stock except as
may have been approved by a majority vote of the Continuing
Directors;
(iii) such 25% Shareholder shall not have acquired any
newly issued shares of stock, directly or indirectly, from the
Corporation (except upon conversion of convertible securities
acquired by it prior to obtaining a 25% Interest or as a result
of a pro rata stock Dividend or stock split); and
(iv) such 25% Shareholder shall not have acquired any
additional Voting Shares or securities convertible into or
exchangeable for Voting Shares except as a part of the
transaction which resulted in such 25% Shareholder acquiring its
25% Interest;
e. Prior to or upon the consummation of such Business
Combination, such 25% Shareholder shall not have (i) received the
benefit, directly or indirectly (except proportionately as a
shareholder), of any loans, advances, guarantees, pledges or other
financial assistance or tax credits provided by the Corporation, or
(ii) made any major change in the Corporation's business or equity
capital structure without the unanimous approval of the entire Board
of Directors; and
f. A proxy statement responsive to the requirements of the
Securities Exchange Act of 1934 and the General Rules and Regulations
promulgated thereunder shall have been mailed to all holders of Voting
Shares for the purpose of soliciting shareholders' approval of such
Business Combination. Such proxy statement shall contain at the front
thereof in a prominent place, any recommendations
7
<PAGE>
as to the advisability (or inadvisability) of the Business Combination
which the Continuing Directors, or any of them, may have furnished in
writing and, if deemed advisable by a majority of the Continuing
Directors, an opinion of a reputable investment banking firm as to the
fairness (or lack of fairness) of the terms of such Business
Combination, from a financial point of view, to the holders of Voting
Shares other than any 25% Shareholder (such investment banking firm to
be selected by a majority of the Continuing Directors, to be furnished
with all information it reasonably requests and to be paid a
reasonable fee for its services upon receipt by the Corporation of
such opinion).
C. For the purposes of this Article VIII:
1. The term "Business Combination" shall mean any transaction which
is referred to in any one or more of clauses (i) through (v) of paragraph A
of this Article VIII;
2. The term "Other Entity" shall include (a) any 25% Shareholder and
(b) any other person (whether or not itself a 25% Shareholder) which after
any Business Combination, would be an Affiliate (as hereinafter defined) of
any 25% Shareholder;
3. The term "person" shall mean any individual, firm, trust,
partnership, association, corporation or other entity;
4. The term "25% Shareholder" shall mean, in respect to any Business
Combination, any person (other than the Corporation or any Subsidiary) who
or which, as of the record date for the determination of shareholders
entitled to notice of and to vote on such Business Combination, or
immediately prior to the consummation of any such transactions,
(a) is the beneficial owner, directly or indirectly, of not less
than 25% of the Voting Shares, or
(b) is an Affiliate of the Corporation and at any time within
five years prior thereto was the beneficial owner, directly or
indirectly, of not less than 25% of the then outstanding Voting
Shares, or
(c) is an assignee of or has otherwise succeeded to any shares
of capital stock of the Corporation which were at any time within five
years prior thereto beneficially owned by any 25% Shareholder, and
such assignment or succession shall have occurred in the course of a
transaction or series of transactions not involving a public offering
within the meaning of the Securities Act of 1933;
8
<PAGE>
5. A person shall be the beneficial owner of any Voting Shares
(a) which such person or any of its Affiliates and Associates
(as hereinafter defined) beneficially own, directly or indirectly, or
(b) which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise,
or (ii) the right to vote pursuant to any agreement, arrangement or
understanding, or
(c) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation;
6. The outstanding Voting Shares shall include shares deemed owned
through application of subparagraph 5 of this paragraph C above but shall
not include any other Voting Shares which may be issuable pursuant to any
agreement or upon exercise of conversion rights, warrants or options, or
otherwise;
7. The term "Continuing Director" shall mean (a) a person who was a
member of the Board of Directors elected by the Public Holders prior to the
date as of which any 25% Shareholder acquired in excess of 10% of the then
outstanding Voting Shares or (b) a person designated (before his or her
initial election as a director) as a Continuing Director by a majority of
the then Continuing Directors;
8. The term "other consideration to be received" shall include,
without limitation, Voting Shares retained by Public Holders in the event
of a Business Combination in which the Corporation is the surviving
corporation;
9. The terms "Affiliate" and "Associate" shall have the respective
meanings given those terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on June
30, 1995;
10. The term "Subsidiary" shall mean any corporation or other entity
of which a majority of the outstanding voting securities or other equity
interests having the power, under ordinary circumstances, to elect a
majority of the directors or otherwise to direct the management and
policies, of such corporation or other entity, is owned, directly or
indirectly, by the Corporation;
11. The term "Interested Securityholder" shall mean, with respect to
any transaction which is referred to in Clause (vi) of paragraph A of this
Article VIII, any person
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<PAGE>
(other than the Corporation or any Subsidiary) who or which, as of the
record date for the determination of shareholders entitled to notice of and
to vote on such transaction, or immediately prior to the consummation of
any such transaction,
(a) is the beneficial owner, directly or indirectly, of not less
than five percent of the Voting Shares, or
(b) is an Affiliate of the Corporation and at any time within
two years prior thereto was the beneficial owner, directly or
indirectly, of not less than five percent of the then outstanding
Voting Shares, or
(c) is an assignee of or has otherwise succeeded to any shares
of the class of securities to be acquired which were at any time
within two years prior thereto beneficially owned by an Interested
Securityholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not involving
a public offering within the meaning of the Securities Act of 1933;
and
12. The term "Fair Market Value" shall mean (i) in the case of
capital stock, the highest closing sale price during the 30-day period
immediately preceding the date in question of a share of such capital stock
on the Composite Tape for New York Stock Exchange-Listed Stocks, or, if
such capital stock is not quoted on the Composite Tape, on the New York
Stock Exchange, or, if such capital stock is not listed on such exchange,
on the principal United States securities exchange registered under the
Securities Exchange Act of 1934 on which such capital stock is listed, or,
if such capital stock is not listed on any such exchange, the highest
closing bid quotation with respect to a share of such capital stock during
the 30-day period preceding the date in question on the National
Association of Securities Dealers, Inc. Automated Quotations System or any
system then in use, or if no such quotations are available the fair market
value on the date in question of a share of such capital stock as
determined by a majority of the Continuing Directors in good faith; and
(ii) in the case of property other than cash or capital stock, the fair
market value of such property on the date in question as determined in good
faith by a majority of the Continuing Directors; provided that any such
determination by the Continuing Directors shall only be effective if made
at a meeting at which a majority of Continuing Directors is present.
D. A majority of the Continuing Directors shall have the power and duty
to determine for purposes of this Article VIII, on the basis of information
known to them, (i) the number of Voting Shares beneficially owned by any person,
(ii) whether a person is an Affiliate or Associate of another, (iii) whether a
person has an agreement, arrangement or understanding with another as to the
matters referred to in subparagraph 4 of paragraph C, (iv) whether the assets
subject to any Business Combination have an aggregate Fair Market Value of
$25,000,000 or more, and (v) such other matters with respect to which a
determination is required under this Article VIII.
10
<PAGE>
E. Nothing contained in this Article VIII shall be construed to relieve
any 25% Shareholder from any fiduciary obligation imposed by law.
ARTICLE IX
Any amendment, alteration, change or repeal of Article VA, VB and VC,
Article VIII or this Article IX of these Articles of Incorporation shall require
the affirmative vote of the holders of shares of capital stock of the
Corporation having at least 75% of the votes of all outstanding Voting Shares
(as defined in Article VIII), excluding from such affirmative vote shares
beneficially owned by any 25% Shareholder or by any Interested Securityholder in
the case of an amendment of the provisions of paragraph A of Article VIII that
exclude from an affirmative vote required pursuant to such paragraph A shares
beneficially owned by 25% Shareholders or shares beneficially owned by
Interested Securityholders, as the case may be.
ARTICLE X
The Board of Directors may make Bylaws and from time to time may alter,
amend or repeal any Bylaws; but any Bylaws made by the Board of Directors may be
altered or repealed by the shareholders entitled to vote generally at any annual
meeting or at any special meeting provided notice of such proposed alteration or
repeal be included in the notice of meeting.
ARTICLE XI
A. A director of the 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; or
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; or
(iii) for any transaction from which the director derives an
improper personal benefit; or
(iv) under Section 490.833, or a successor provision, of the Iowa
Business Corporation Act.
B. If, after the date these Articles of Incorporation are filed with the
Secretary of State of the State of Iowa, the Iowa Business Corporation Act is
amended to authorize corporate action
11
<PAGE>
further eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be deemed eliminated or limited
to the fullest extent permitted by the Iowa Business Corporation Act, as so
amended. Any repeal or modification of Section A or Section B of this Article
XI, by the shareholders of the Corporation shall be prospective only and shall
not adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
ARTICLE XII
A. Each person who was or is a party or is threatened to be made a party
to or is involved in any action, suit or proceeding, whether civil, criminal,
administrative, investigative, or arbitration and whether formal or informal
("proceeding"), by reasons of the fact that he or she, or a person of whom he or
she is the legal representative, is or was a director, officer or employee of
the Corporation or is or was serving at the request of the Corporation as a
director, officer or employee of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether the basis of such proceeding is alleged action in an
official capacity while serving as a director, officer or employee or in any
other capacity while serving as a director, officer or employee, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Iowa Business Corporation Act, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than the Iowa Business Corporation Act permitted the Corporation to
provide prior to such amendment), against all reasonable expenses, liability and
loss (including, without limitation, attorneys' fees, all costs, judgments,
fines, Employee Retirement Income Security Act excise taxes or penalties and
amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith. Such right shall be a contract right and
shall include the right to be paid by the Corporation expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that the payment of such expenses incurred by a director, officer or
employee in his or her capacity as a director, officer or employee (and not in
any other capacity in which service was or is rendered by such person while a
director, officer or employee including, without limitation, service to an
employee benefit plan) in advance of the final disposition of such proceeding,
shall be made only upon delivery to the Corporation of (i) a written
undertaking, by or on behalf of such director, officer or employee, to repay all
amounts so advanced if it should be determined ultimately that such director,
officer or employee is not entitled to be indemnified under this Article XII or
otherwise, or (ii) a written affirmation by or on behalf of such director,
officer or employee that, in such person's good faith belief, such person has
met the standards of conduct set forth in the Iowa Business Corporation Act.
B. If a claim under Section A is not paid in full by the Corporation
within thirty (30) days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to also be paid the expenses of
prosecuting such claim.
12
<PAGE>
It shall be a defense to any such action that the claimant has not met the
standards of conduct which make it permissible under the Iowa Business
Corporation Act for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the Corporation.
The failure of the Corporation (including its Board of Directors, independent
legal counsel or its shareholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the Iowa Business Corporation Act, shall not be a defense to the
action or create a presumption that the claimant had not met the applicable
standard of conduct.
C. Indemnification provided hereunder shall, in the case of the death of
the person entitled to indemnification, inure to the benefit of such person's
heirs, executors or other lawful representatives. The invalidity or
unenforceability of any provision of this Article XII shall not affect the
validity or enforceability of any other provision of this Article XII.
D. Any action taken or omitted to be taken by (i) any director, officer
or employee in good faith and in compliance with or pursuant to any order,
determination, approval or permission made or given by a commission, board,
official or other agency of the United States or of any state or other
governmental authority with respect to the property or affairs of the
Corporation or any such business corporation, not-for-profit corporation, joint
venture, trade association or other entity over which such commission, board,
official or agency has jurisdiction or authority or purports to have
jurisdiction or authority or (ii) by any director of the Corporation pursuant to
Section D of Article VIII shall be presumed to be in compliance with the
standard of conduct set forth in Section 490.851 (or any successor provision) of
the Iowa Business Corporation Act whether or not, in the case of clause (i), it
may thereafter be determined that such order, determination, approval or
permission was unauthorized, erroneous, unlawful or otherwise improper.
E. Unless finally determined, the termination of any litigation, whether
by judgment, settlement, conviction or upon a plea of NOLO CONTENDERE, or its
equivalent, shall not create a presumption that the action taken or omitted to
be taken by the person seeking indemnification did not comply with the standard
of conduct set forth in Section 490.851 (or any successor provision) of the Iowa
Business Corporation Act.
F. The rights conferred on any person by this Article XII 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, Bylaws,
agreement, vote of shareholders or disinterested directors or otherwise.
G. The Corporation may maintain insurance, at its expense, to protect
itself and any such director, officer or employee of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against any
such expense, liability or loss, whether or not the Corporation would have the
power to indemnify such person against such expense, liability or loss under the
Iowa Business Corporation Act.
13
<PAGE>
The duly adopted Restated Articles of Incorporation supersede the original
Articles of Incorporation and all amendments thereto.
The Restated Articles of Incorporation amend the Articles of Incorporation
requiring shareholder approval. The Restated Articles of Incorporation were
approved by the shareholders. 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 are as follows:
<TABLE>
<CAPTION>
Votes Entitled
Designation Shares To Be Cast On Vote Represented
Of Group Outstanding Restated Articles at Meeting
- ---------------- ----------- ----------------- -----------------
<S> <C> <C> <C>
Common Stock 1,000 1,000 1,000
</TABLE>
The total number of undisputed votes cast for and against the Restated
Articles of Incorporation by each voting group entitled to vote separately on
the Restated Articles of Incorporation are as follows:
<TABLE>
<CAPTION>
Voting Group Votes For Votes Against
------------ --------- -------------
<S> <C> <C>
Common Stock 1,000 0
</TABLE>
The number of votes cast for the Restated Articles of Incorporation by each
voting group was sufficient for approval by that voting group.
These Restated Articles of Incorporation are to be effective when filed by
the Secretary of State.
MIDAMERICAN ENERGY COMPANY
/s/ Paul J. Leighton
__________________________________
Paul J. Leighton, Vice President and
Corporate Secretary
14
<PAGE>
ARTICLES OF AMENDMENT
TO THE
RESTATED ARTICLES OF INCORPORATION
OF
MIDAMERICAN ENERGY COMPANY
TO THE SECRETARY OF STATE
OF THE STATE OF IOWA:
Pursuant to the provisions of Section 490.601, and in accordance with
Section 490.602(4), of the Iowa Business Corporation Act, the undersigned
corporation hereby adopts the following Articles of Amendment to the
corporation's Restated Articles of Incorporation.
1. The name of the corporation is:
MidAmerican Energy Company
2. As of June 30, 1995, the Board of Directors of MidAmerican Energy
Company, an Iowa corporation ("Corporation"), duly adopted the following
Articles of Amendment to the Restated Articles of Incorporation ("Articles of
Incorporation") of the Corporation, determining certain terms of its class of
shares designated in Article III of its Articles of Incorporation as Preferred
Stock, no par value ("Preferred Stock"), and creating and determining the terms
of the ten series of Preferred Stock (collectively, the "Merger Series") to be
issued on the date on which the merger ("Merger") of Midwest Resources Inc., an
Iowa corporation ("Midwest Resources"), Midwest Power Systems Inc., an Iowa
corporation ("Midwest Power"), and Iowa-Illinois Gas and Electric Company, an
Illinois corporation ("Iowa-Illinois"), with and into the Corporation becomes
effective ("Effective Date of the Merger"), upon the conversion of (i) all
shares of each series of Midwest Power Preferred Stock, no par value ("Midwest
Power Preferred Stock"), into shares of a particular series of Preferred Stock,
and (ii) all shares of each series of Iowa-Illinois Preference Shares, without
par value ("Iowa-Illinois Preference Stock"), into shares of a particular series
of Preferred Stock, including the certain preferences, limitations and relative
rights of holders of shares of Preferred Stock, and the designation,
preferences, limitations and relative rights of each Merger Series.
3. The text of the Amendment determining the terms of the Preferred Stock
and the terms of each Merger Series, is as follows:
<PAGE>
A. DESIGNATIONS. Each Merger Series is given one of the following
distinguishing designations:
$1.7375 Series
$3.30 Series
$3.75 Series
$3.90 Series
$4.20 Series
$4.35 Series
$4.40 Series
$4.80 Series
$5.25 Series
$7.80 Series
B. NUMBER OF SHARES. Each Merger Series shall consist of the
following number of shares of Preferred Stock:
<TABLE>
<CAPTION>
SERIES NUMBER OF SHARES
------ ----------------
<S> <C>
$1.7375 Series 2,400,000
$3.30 Series 49,622
$3.75 Series 38,320
$3.90 Series 32,630
$4.20 Series 47,369
$4.35 Series 49,950
$4.40 Series 50,000
$4.80 Series 49,898
$5.25 Series 100,000
$7.80 Series 400,000
</TABLE>
C. DISTRIBUTIONS ("DIVIDENDS").
(1) The holders of the shares of each Merger Series in
preference to the holders of Common Stock and the holders of any other
shares of the Corporation which rank junior to the Preferred Stock,
shall be entitled to receive, but only when and as declared by the
Board of Directors, out of any assets legally available therefor,
Dividends in lawful money of the United States of America, in the
amount per annum set forth in the designation of such Merger Series in
these Articles of Amendment creating such Merger Series, and no more.
(2) Dividends on the Merger Series shares shall be payable
quarterly on the first day of each of the months of March, June,
September and December ("Dividend Payment Date") with respect to the
quarterly Dividend period ending on the date preceding each such
Dividend Payment Date, to shareholders of record as of a date to be
fixed by the Board of Directors, not exceeding thirty (30)
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<PAGE>
days and not less than ten (10) days preceding such Dividend Payment
Dates; provided, however, that the first Dividend payable on the $5.25
Series and the $7.80 Series shall be paid as follows:
(a) if a regular Dividend Payment Date for the shares of
Iowa-Illinois Preference Stock which were converted into shares
of such Merger Series in the merger of Midwest Resources, Midwest
Power and Iowa-Illinois with and into the Corporation ("Iowa-
Illinois Payment Date"), occurs after the Effective Date of the
Merger but before the first Dividend Payment Date after the
Effective Date of the Merger ("First Dividend Payment Date"),
then
(i) a Dividend shall be paid on the shares of such
Merger Series on the Iowa-Illinois Payment Date in the
regular quarterly amount, and
(ii) a Dividend shall be paid on the shares of such
Merger Series on the First Dividend Payment Date, but only
in the amount obtained by multiplying the regular quarterly
amount of such Dividend by a fraction (A) the numerator of
which is the number of days in the period commencing on the
Iowa-Illinois Payment Date and ending on and including the
day prior to the First Dividend Payment Date, and (B) the
denominator of which is the number of days in the period
commencing on the Dividend Payment Date preceding the
Effective Date of the Merger and ending on and including the
day prior to the First Dividend Payment Date; or
(b) if the First Dividend Payment Date occurs before an
Iowa-Illinois Payment Date, a Dividend shall be paid on the
shares of such Merger Series on the First Dividend Payment Date,
but only in the amount obtained by multiplying the regular
quarterly amount of such Dividend by a fraction (i) the numerator
of which is the number of days in the period commencing on the
Iowa-Illinois Payment Date preceding the Effective Date of the
Merger and ending on and including the day prior to the First
Dividend Payment Date, and (ii) the denominator of which is the
number of days in the period commencing on the Dividend Payment
Date preceding the Effective Date of the Merger and ending on and
including the day prior to the First Dividend Payment Date.
3
<PAGE>
(3) Except as provided in Section C (2), Dividends on each
Merger Series share shall be cumulative from the Dividend Payment Date
preceding the Effective Date of the Merger. Accumulations of
Dividends shall not bear interest.
(4) Except as provided in Section C (2), no Dividend shall be
paid upon, or declared and set apart for, any Merger Series share for
any quarterly period or portion thereof unless (i) at the same time a
like proportionate Dividend for the same quarterly period or portion
thereof shall be paid upon, or declared and set aside, for all Merger
Series shares and all other shares of Preferred Stock on which
Dividends are payable on a Dividend Payment Date and (ii) no Dividends
on any other shares of Preferred Stock are accrued and unpaid.
(5) So long as any Merger Series shares are outstanding, the
Corporation shall not (i) pay or declare or set aside any Dividend or
other distribution on any shares of Common Stock or on any other
junior shares of the Corporation which rank below the Preferred Stock
with respect to any assets, Dividends or other distributions or upon
Liquidation or (ii) purchase, redeem or otherwise acquire for value
any shares of Common Stock or such junior shares, in each case unless
and until full Dividends have been declared and paid upon or set apart
for payment on all shares of Preferred Stock, with respect to all
Dividend periods and the Dividend period which includes the date of
such Dividend or distribution on Common Stock or such junior shares;
provided, however, that the foregoing terms of this Section C (5)
shall not apply to the declaration and payment of Dividends or other
distributions on any shares of Common Stock or such junior shares if
payable solely in shares of Common Stock or such junior shares, nor to
the acquisition of shares of Common Stock or such junior shares in
exchange for, or through the application of the proceeds of the sale
of, any shares of Common Stock or such junior shares.
D. REDEMPTION.
(1) Subject to the limitations set forth in Section F, the
outstanding shares of each Merger Series may be redeemed by the
Corporation, at its option, by action of its Board of Directors, as a
whole at any time or in part from time to time, by paying in cash on a
redemption date specified by the Board of Directors, the following
redemption prices, in each case plus an amount equal to accrued and
unpaid Dividends thereon to such redemption date:
4
<PAGE>
$1.7375 Series:
$26.3900 per share on December 1, 1994
through November 30, 1995
$26.0425 per share on December 1, 1995
through November 30, 1996
$25.6950 per share on December 1, 1996
through November 30, 1997
$25.3475 per share on December 1, 1997
through November 30, 1998
$25.000 per share on or after December 1,
1998
$3.30 Series:
$101.50 per share
$3.75 Series:
$102.75 per share
$3.90 Series:
$105.00 per share
$4.20 Series:
$103.439 per share
$4.35 Series:
$102.00 per share
$4.40 Series:
$101.50 per share
$4.80 Series:
$102.70 per share
$5.25 Series:
$101.97 per share on November 1, 1998
through October 31, 1999
$101.31 per share on November 1, 1999
through October 31, 2000
$100.66 per share on November 1, 2000
through October 31, 2001
$100.00 per share on or after November 1,
2001
$7.80 Series:
$107.80 per share on May 1, 1996 through
April 30, 2001
$103.90 per share on May 1, 2001 through
April 30, 2002
$101.95 per share on or after May 1, 2002
provided, however, that (i) prior to December 1, 1998, no shares of
the $1.7375 Series may be redeemed through a refunding, directly or
indirectly, by or in anticipation of the incurring of any debt which
has an interest cost, or the issuance of stock ranking equally with or
prior to the $1.7375 Series as to Dividends or assets which has a
Dividend cost to the Corporation (computed in accordance with
generally accepted financial practice), of less that 7.15% per annum,
(ii) prior
5
<PAGE>
to November 1, 1998, no shares of the $5.25 Series may be redeemed at
the option of the Corporation, and (iii) prior to May 1, 1996, no
shares of the $7.80 Series may be redeemed at the option of the
Corporation.
(2) Subject to the limitations set forth in Section F, the
Corporation shall on November 1, 2003 redeem all shares of the $5.25
Series then outstanding at $100.00 per share, plus accrued and unpaid
Dividends thereon through October 31, 2003.
(3) "Accrued and unpaid Dividends" as used in this Amendment
with respect to any Merger Series share means the amount, if any, by
which the applicable amount of Dividend per annum from the date after
which Dividends on such share become cumulative to the date in
question, exceeds the Dividends actually paid or declared and set
aside for payment thereon.
(4) Notice of any proposed redemption of any Merger Series
shares shall be given by the Corporation by mailing a copy of such
notice not more than sixty (60) nor less than thirty (30) days prior
to the date fixed for such redemption to the holders of record of such
shares to be redeemed, at their respective addresses then appearing on
the books of the Corporation; but no failure to mail such notice or
any defect therein, or in the mailing thereof, shall affect the
validity of the proceedings for the redemption of any Merger Series
shares so to be redeemed.
(5) In case of redemption of only a part of the shares of any
Merger Series at the time outstanding, the shares of such Merger
Series to be redeemed shall be selected by lot in such manner as the
Board of Directors may determine.
(6) On the redemption date specified in the notice of such
redemption the Corporation shall, and at any time within sixty (60)
days prior to such redemption date may, deposit in trust, for the
account of the holders of the Merger Series shares to be redeemed,
funds necessary for such redemption with a bank or trust company in
good standing, organized under the laws of the United State of America
or of the State of Iowa, doing business in the City of Des Moines,
Iowa, having combined capital, surplus and undivided profits of at
least $2,500,000 and designated in such notice of redemption.
(7) Notice having been given and funds necessary for such
redemption having been deposited, all as provided in this Section D,
all Merger Series shares with respect to the redemption of which such
notice shall be given and deposit made, shall thenceforth, whether or
not the date fixed for such redemption shall have yet occurred, or the
certificates for such shares shall have been
6
<PAGE>
surrendered for cancellation, be deemed no longer to be outstanding
for any purpose, and all rights with respect to such shares shall
thereupon cease and terminate except only the right of the holders of
the certificates for such shares to receive, out of the funds so
deposited in trust, upon or after the redemption date (unless an
earlier date is fixed by the Board of Directors), the redemption
funds, without interest, to which they are entitled upon endorsement,
if required, and surrender of their certificates for such shares.
(8) At the expiration of six (6) years after the redemption date
such trust shall terminate and any such moneys then remaining on
deposit with such bank or trust company which are unclaimed by the
holders of the certificates for the Merger Series shares which have
been so redeemed, plus interest thereon, if any, shall be paid by such
bank or trust company to the Corporation, free of trust, and
thereafter the holders of the certificates for such shares shall have
no claim against such bank or trust company but only claims as
unsecured creditors against the Corporation for the amount payable
upon the redemption thereof, without interest.
(9) Any interest on or other accretions to funds deposited with
such bank or trust company pursuant to this Section D shall belong to
the Corporation.
E. SINKING FUND. Subject to the limitations set forth in Section F,
while any shares of the $7.80 Series shall remain outstanding, the
Corporation shall on or before May 1, 2001, and on or before May 1 of each
year thereafter to and including May 1, 2005 (each such May 1 being
hereinafter in this Section E called a "Sinking Fund Redemption Date"), set
aside, separate and apart from its other funds, an amount equal to
$6,660,000 (or such lesser amount as may be sufficient to redeem all of the
shares of the $7.80 Series then outstanding) as a mandatory sinking fund
payment for the exclusive benefit of shares of the $7.80 Series, plus such
further amount as shall equal the accrued and unpaid Dividends on the
shares of the $7.80 Series to be redeemed out of such payment (as
hereinafter in this Section E provided) through the day preceding the
applicable Sinking Fund Redemption Date. The obligation of the Corporation
to make such payments shall be cumulative, so that if for any reason the
full amount thereof shall not be set aside for any year, the amount of the
deficiency from time to time shall be added to the amount due from the
Corporation on subsequent Sinking Fund Redemption Dates until the
deficiency shall have been fully satisfied. The Corporation shall be
entitled to credit against any such mandatory sinking fund payment shares
of the $7.80 Series redeemed, purchased or otherwise acquired by the
Corporation, except through application of any sinking fund payment
(whether mandatory or optional), and not theretofore so credited, at the
sinking fund redemption price hereinafter specified in this Section E.
7
<PAGE>
In addition to the mandatory sinking fund payments required by the
immediately preceding paragraph, the Corporation may at its option, in
respect of any Sinking Fund Redemption Date, set aside, separate and apart
from its other funds, an amount not in excess of $6,660,000 as an optional
sinking fund payment for the exclusive benefit of shares of the $7.80
Series, plus such further amount as shall equal the accrued and unpaid
Dividends on the shares of the $7.80 Series to be redeemed out of such
payment (as hereinafter in this Section E provided) through the day
preceding the applicable Sinking Fund Redemption Date. The privilege of
making such payments shall not be cumulative, and no such payment shall
relieve the Corporation to any extent from its obligation to make any
subsequent mandatory sinking fund payment.
Any amounts set aside by the Corporation pursuant to this Section E shall
be applied on the date of such setting aside if a Sinking Fund Redemption
Date or otherwise on the first Sinking Fund Redemption Date occurring
thereafter to the redemption of shares of the $7.80 Series at $100.00 per
share, plus accrued and unpaid Dividends through the day preceding the
applicable Sinking Fund Redemption Date, in the manner and upon the notice
provided in Section D. If any Sinking Fund Redemption Date shall be a
Saturday, Sunday or other day on which banking institutions in Chicago,
Illinois or New York, New York are authorized or obligated to remain
closed, such term shall be construed to refer to the next preceding
business day.
Subject to the limitations stated in Section F, the Corporation shall on
May 1, 2006 redeem any shares of the $7.80 Series then outstanding at
$100.00 per share, plus accrued and unpaid Dividends through April 30,
2006.
F. REPURCHASE.
(1) The Corporation may from time to time purchase or otherwise
acquire Merger Series shares at a price not exceeding the amount at
the time payable in the event of redemption thereof otherwise than
through the operation of the applicable sinking fund, if any.
(2) If and so long as the Corporation shall be in default in the
payment of any quarterly Dividend on any Merger Series shares, or
shall be in default in the payment of funds into or the setting aside
of funds for any sinking fund created for any Merger Series shares,
the Corporation shall not (other than by the use of unapplied funds,
if any, paid into or set aside for a sinking fund or funds prior to
such default):
(a) redeem any Merger Series shares, unless all Merger
Series shares are redeemed, or
8
<PAGE>
(b) purchase or otherwise acquire for a valuable
consideration any Merger Series shares, except pursuant to offers
of sale made by the holders of Merger Series shares in response to
an invitation for tenders given by mail by the Corporation
simultaneously to the holders of record of all Merger Series
shares then outstanding, at their respective addresses then
appearing on the books of the Corporation.
G. PREFERENCE ON LIQUIDATION.
(1) Before any distribution of any assets of the Corporation
shall be made to the holders of any Common Stock or any other junior
shares of the Corporation which rank below the Preferred Stock with
respect to any assets, Dividends or other distributions:
(a) in the event of any liquidation, dissolution or winding
up ("Liquidation") of the Corporation which is voluntary:
(i) the holders of the shares of the $1.7375 Series,
$3.30 Series, $3.75 Series, $4.35 Series, $4.40 Series, $4.80
Series, $5.25 Series and $7.80 Series shall be entitled to
receive an amount per share equal to the amount which would
then be payable upon such share in the event of redemption
thereof in accordance with Section D(1), except that prior to
November 1, 1998, the holders of the shares of the $5.25
Series shall be entitled to receive $105.25 per share and
prior to May 1, 2001, the holders of the shares of the $7.80
Series shall be entitled to receive $107.80 per share, and no
more; and
(ii) the holders of the shares of the $3.90 Series and
$4.20 Series shall be entitled to receive the amount of one
hundred dollars ($100) per share plus accrued and unpaid
Dividends to the date of payment of such amount, and no more.
(b) in the event of any Liquidation of the Corporation which
is involuntary:
(i) the holders of the shares of the $3.30 Series,
$3.75 Series, $3.90 Series, $4.20 Series, $4.35 Series, $4.40
Series, $4.80 Series, $5.25 Series and $7.80 Series shall be
entitled to receive the amount of one hundred dollars ($100)
per share plus accrued and unpaid Dividends to the date of
payment of such amount, and no more; and
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(ii) the holders of the shares of the $1.7375 Series
shall be entitled to receive the amount of twenty-five
dollars ($25.00) per share plus accrued and unpaid Dividends
to the date of payment of such amount, and no more.
(2) If upon any Liquidation the assets distributable among the
holders of the shares of Preferred Stock shall be insufficient to
permit the payment of the full preferential amounts to which they shall
be entitled, then the entire assets of the Corporation to be
distributed shall be distributed among the holders of the shares of
Preferred Stock then outstanding ratably in proportion to the amounts
to which such holders are respectively entitled.
(3) If upon any Liquidation the holders of the shares of
Preferred Stock shall receive the full preferential amounts to which
they shall be entitled, the remaining assets and funds of the
Corporation shall be distributed among the holders of the shares of
Common Stock and of any other junior shares of the Corporation which
rank below the Preferred Stock with respect to any assets, or Dividends
or other distributions, according to their respective rights and
preferences and according to their respective shares.
(4) Neither a consolidation nor a merger of the Corporation, nor
a sale or transfer of substantially all its assets as an entirety, nor
a redemption or a purchase or other acquisition by the Corporation of
less than all of its shares of any class at the time outstanding, shall
be regarded as a Liquidation within the meaning of this Section G.
H. VOTING RIGHTS.
(1) Except to the extent required by law or as permitted by this
Section H, the holders of Merger Series shares shall have no voting
rights.
(2) If at any time Dividends on any Preferred Stock shall be
accrued and unpaid in an amount equivalent to six or more full
quarterly Dividends, the holders of all shares of Preferred Stock,
voting together as a single class for such purpose, shall be entitled
until, but only until, all Dividends accrued and unpaid on all shares
of Preferred Stock shall have been paid (or deposited in trust for
payment on or before the next succeeding Dividend Payment Date with
respect to Merger Series shares, and on or before the next succeeding
date or dates upon which Dividends are payable on other series of
Preferred Stock), to elect two (2) Directors of the Corporation.
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(3) While the holders of the shares of Preferred Stock remain
entitled to elect two (2) Directors of the Corporation, the payment of
Dividends on Preferred Stock, including accrued an unpaid Dividends,
shall not be unreasonably withheld if the financial condition of the
Corporation permits payment thereof.
(4) The right of the holders of the shares of Preferred Stock
under this Section H to elect two (2) Directors of the Corporation may
be exercised at any annual meeting of shareholders or, within the
limitations of this Section H, at a special meeting of shareholders
held for such purpose; whenever such right shall have become vested,
upon request signed by any holder of record of shares of Preferred
Stock and delivered to the Corporation at its principal office not less
than ninety (90) days prior to the date for the annual meeting next
following the date of such vesting, the President of the Corporation
shall call a special meeting of shareholders, to be held within sixty
(60) days after the receipt of such request, for the purpose of
electing a new Board of Directors, of which two (2) shall, subject to
the provisions of this Section H, be elected by a vote of the holders
of the Preferred Stock to serve until the next annual meeting or until
their successors shall be elected and shall qualify.
(5) No such special meeting shall be required to be held within
120 days after such a prior special meeting, and the term of office of
each Director of the Corporation shall terminate at the time of any
such special meeting or adjournment thereof, notwithstanding that the
term for which such Director had been elected shall not then have
expired, and provided that the successor of such Director is duly
elected and qualified.
(6) In the event that at any special meeting at which the holders
of the shares of Preferred Stock shall be entitled to elect two (2)
Directors of the Corporation, a quorum of the holders of the shares of
Preferred Stock shall not be present in person or by proxy, the holders
of Common Stock, if a quorum thereof be present in person or by proxy,
shall temporarily elect the Directors of the Corporation, which holders
of the shares of Preferred Stock were entitled but failed to elect,
such Directors to be designated as having been so elected and their
respective terms of office to expire at such times thereafter as their
successors shall be elected by holders of the shares of Preferred Stock
as provided in this Section H.
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(7) Whenever the holders of the shares of Preferred Stock shall
be entitled to elect two (2) Directors, any holder of record of a share
of Preferred Stock shall have the right, during regular business hours,
in person or by a duly authorized representative, to examine the
Corporation stock records of the Preferred Stock for the purpose of
communicating with other holders of Preferred Stock with respect to the
exercise of such right of election, and to make a list of such holders.
(8) Whenever, under the terms of this Section H, the holders of
the shares of Preferred Stock shall be divested of the right to elect
two (2) Directors, upon request signed by any holder of record of
Common Stock and delivered to the Corporation at its principal office
not less than ninety (90) days prior to the date for the annual meeting
next following the date of such divesting, the President of the
Corporation shall call a special meeting of the holders of Common Stock
to be held within sixty (60) days after the receipt of such request for
the purpose of electing a new Board of Directors to serve until the
next annual meeting or until their respective successors shall be
elected and shall qualify.
(9) The term of office of each Director of the Corporation shall
terminate at the time of any such special meeting or adjournment
thereof at which a quorum of holders of Common Stock shall be present
in person or by proxy, notwithstanding that the term for which such
Director had been elected shall not then have expired, and provided
that the successor to such Director is duly elected and qualified.
(10) If, during any interval between annual meetings of
shareholders for the election of Directors and while the holders of the
shares of Preferred Stock shall be entitled to elect two (2) Directors,
a Director in office who has been elected by the holders of the shares
of Preferred Stock, shall, by reason of resignation, death or removal,
cease to be a Director, (a) the vacancy or vacancies shall be filled
by vote of the remaining Director then in office who was elected by the
holders of the shares of Preferred Stock or who succeeded to a Director
so elected, and (b) if any vacancy which occurred more than six months
prior to the date of the next ensuing annual meeting is not so filled
within forty (40) days after the occurrence thereof, the President of
the Corporation shall call a special meeting of the holders of the
shares of Preferred Stock and such vacancy shall be filled at such
special meeting.
(11) A Director elected by holders of the shares of Preferred
Stock may be removed from office only by vote of the holders of a
majority of the votes of the outstanding shares of Preferred Stock.
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(12) At any annual or special meeting of the shareholders held for
any purpose, including the purpose of electing Directors when the
holders of the shares of Preferred Stock shall be entitled to elect two
(2) Directors, the presence in person or by proxy of holders of a
majority of the votes of the outstanding shares of Preferred Stock
shall be required to constitute a quorum of the holders of the shares
of Preferred Stock.
(13) At any meeting of shareholders at which the holders of the
shares of Preferred Stock are required to vote by law or are permitted
to vote by any articles of amendment to the Articles of Incorporation,
each holder of Merger Series shares shall have one vote for each such
Merger Series share except the holders of $1.7375 Series shares, which
shall have 1/4 vote for each such $1.7375 Series share, and each holder
of shares of each other series of Preferred Stock shall have the number
or fraction of votes set forth for each such share in the articles of
amendment to the Articles of Incorporation in which the terms of such
series are determined, in each case standing in the name of such holder
on the books of the Corporation on the record date fixed for such
purpose, or, if no record date is fixed, on the date on which such vote
is taken.
(14) The holders of shares of Preferred Stock shall not be
entitled to receive notice of any meeting at which they are not
entitled to vote.
I. NO PREEMPTIVE RIGHTS. No holder of Merger Series shares as such
shall have any preemptive or preferential right to purchase or subscribe for
any shares of stock or rights or options to purchase stock or any other
securities of the Corporation of any kind whatsoever whether now or
hereafter authorized.
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The Articles of Amendment to the Restated Articles of Incorporation were
adopted by the Board of Directors without action by the shareholders. These
Articles of Amendment to the Restated Articles of Incorporation are to be
effective when filed by the Secretary of State.
MIDAMERICAN ENERGY COMPANY
/s/ P. J. Leighton
___________________________________
P. J. Leighton, Vice President and
Corporate Secretary
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RESTATED BYLAWS
OF
MIDAMERICAN ENERGY COMPANY
(an Iowa Corporation)
ARTICLE I.
Offices.
Section 1. PRINCIPAL OFFICE. The principal office of the Corporation
shall be in the City of Des Moines, Polk County, Iowa. The Corporation may also
have an office or offices at such other place or places either within or without
the State of Iowa as the Board of Directors from time to time determines or the
business of the Corporation may require.
Section 2. REGISTERED OFFICE. The registered office of the Corporation
required by the Iowa Business Corporation Act to be maintained in the State of
Iowa may be, but need not be, the same as the principal office of the
Corporation in the state of Iowa, and the address of the registered office may
be changed from time to time by the Board of Directors.
ARTICLE II.
Shareholders' Meetings.
Section 1. PLACE. All meetings of the shareholders shall be held in such
place as may be ordered by the Board of Directors.
Section 2. ANNUAL MEETINGS. The annual meeting of shareholders shall be
held on the Wednesday next preceding the last Thursday of April in each year, at
ten o'clock in the morning, when the shareholders shall elect the Board of
Directors and transact such other business as may properly be brought before the
meeting. The Board of Directors may, in its discretion, change the date or
time, or both, of the annual meeting of shareholders.
Section 3. SPECIAL MEETINGS. Special meetings of the shareholders for any
purpose or purposes may be called by the President, or by a Vice President
(under such conditions as are prescribed in these bylaws), or by the Chairman of
the Board of Directors (if there be one), or by the Vice Chairman of the Board
of Directors (if there be one), or by the Board of Directors.
Section 4. NOTICE. Notice, in accordance with the Iowa Business
Corporation Act, stating the place, day and hour of the annual meeting and of
any special meeting, and in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be
<PAGE>
given so that it is effective not less than ten (10) nor more than sixty (60)
days before the date of the meeting, by or at the direction of the President, or
the Secretary, or the officer or persons calling the meeting, to each
shareholder of record entitled to vote at such meeting.
Section 5. RIGHT TO VOTE. Except as provided in Sections 8 and 9 of this
Article II, only shareholders owning shares of stock of a class entitled to vote
as required by the Iowa Business Corporation Act or as provided in the Restated
Articles of Incorporation, as amended, of record on the books of the Corporation
on the day fixed by the Board of Directors for the closing of the stock transfer
books of the Corporation prior to any meeting of the shareholders, or, if the
stock transfer books be not closed, of record on the books of the Corporation at
the close of business on the day fixed by the Board of Directors as the record
date for the determination of the shareholders entitled to vote at such meeting,
shall be entitled to notice of and shall have the right to vote (either in
person or by proxy) at such meeting.
Section 6. 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 entitled to receive
payment of any dividend, or in order to make a determination of shareholders for
any other proper purpose, the Board of Directors of the Corporation may provide
that the stock transfer books shall be closed for a stated period but not to
exceed, in any case, seventy (70) 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 seventy (70) days prior to the date on which the particular action
requiring such determination of shareholders is to be taken. Except as provided
in the Amendment to the Restated Articles of Incorporation establishing one or
more classes or series of Preferred Stock, if the stock 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 immediately preceding 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 6, such determination
shall apply to any adjournment thereof, except that the Board of Directors must
fix a new record date if the meeting is adjourned to a date more than one
hundred twenty (120) days after the date fixed for the original meeting.
Section 7. SHAREHOLDERS' LIST. The officer having charge of the stock
transfer books for shares of stock of the Corporation shall make a complete list
of the shareholders entitled to vote at a meeting of shareholders or any
adjournment thereof, arranged in alphabetical order and by voting group and
within each voting group by class or series of shares, with the address of and
the number of shares held by each, which list shall be kept on file at the
principal office of the Corporation and shall be subject to inspection by any
shareholder at any time during usual business hours beginning two business days
after notice of such meeting is given for which such list was prepared. 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 at any
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time during the meeting or any adjournment thereof. The original stock
transfer books shall be prima facie evidence as to the identity of the
shareholders entitled to examine such list or transfer books or to vote at any
meeting of shareholders. Failure to comply with the requirements of this
Section 7 shall not affect the validity of any action taken at any such meeting.
Section 8. VOTING OF SHARES BY CERTAIN HOLDERS. Shares standing in the
name of another corporation, domestic or foreign, may be voted by such officer
or proxy as the bylaws 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 a person who is an administrator, executor, guardian or
conservator may be voted by such person, either in person or by proxy, without
the transfer of such shares into the name of such person. Shares standing in
the name of a trustee may be voted by such trustee, either in person or by
proxy, but no trustee shall be entitled to vote shares held by such trustee
without a transfer of such shares into the name of such 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 the transfer thereof into the name of such receiver if
authority so to do is contained in an appropriate order of the court by which
such receiver was appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
On and after the date on which written notice of redemption of redeemable
shares has been given to the holders thereof and a sum sufficient to redeem such
shares has been deposited with a bank or trust company with irrevocable
instruction and authority to pay the redemption price to the holders thereof
upon surrender of certificates therefor, such shares shall not be entitled to
vote on any matter and shall not be deemed to be outstanding shares.
Shares of the Corporation are not entitled to be voted if they are owned,
directly or indirectly, by a second corporation, and the Corporation owns,
directly or indirectly, a majority of the shares entitled to vote for the
election of directors of such second corporation, nor shall any such shares be
counted in determining the total number of outstanding shares at any given time.
At all meetings of shareholders, a shareholder may vote either in person or
by proxy appointment form executed in writing by the shareholder or by the duly
authorized attorney-in-fact of such shareholder. Such proxy appointment and any
revocation thereof shall be filed with the Secretary of the Corporation. No
proxy appointment shall be valid after eleven (11) months from the date of its
execution, unless otherwise provided in the proxy.
Section 9. PROXIES. When a valid proxy appointment form is filed with the
Secretary of the Corporation, the proxy named therein (or the duly appointed
substitute of such proxy, if the proxy appointment permits the appointment of a
substitute) shall be entitled to enter and be present at the shareholders'
meeting designated in the proxy appointment, and to exercise
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the power granted to such proxy under such proxy appointment, notwithstanding
that the shareholder who gave the proxy appointment is personally present at the
meeting, unless and until such proxy appointment is revoked by a written
instrument of revocation, stating the time and date of revocation of the proxy
appointment, duly signed by the shareholder who executed the proxy appointment,
and filed with the Secretary of the Corporation at or prior to the meeting.
Subject to any express limitation or restriction in any such proxy appointment
contained, a vote, consent or action taken by a proxy prior to revocation
thereof, as hereinbefore provided, shall be valid and binding on the shareholder
who gave the proxy appointment. Each proxy appointment, and also each
instrument of revocation thereof, shall be retained by the Secretary of the
Corporation as required by regulatory authorities.
Section 10. QUORUM. The holders of a majority of the votes of the shares
entitled to vote thereat, represented in person or by proxy, shall constitute a
quorum for the transaction of business at all meetings of the shareholders
except as otherwise provided by the Iowa Business Corporation Act, the Restated
Articles of Incorporation, as amended, or these bylaws. The holders of a
majority of the votes of the shares present in person or by proxy at any meeting
and entitled to vote thereat shall have power successively to adjourn the
meeting to a specified date whether or not a quorum be present. The time and
place to which any such adjournment is taken shall be publicly announced at the
meeting, and no further notice thereof shall be necessary. At any such
adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally called.
Section 11. MANNER OF VOTING. Upon demand of any shareholder entitled to
vote thereon, the vote on any question before the meeting shall be by ballot.
If a quorum is present, the affirmative vote of the holders of a majority of the
votes 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 or voting by classes is required by the Iowa Business Corporation
Act or the Restated Articles of Incorporation.
Section 12. OFFICERS OF THE MEETING-POWERS. The Chairman of the Board of
Directors (if there be one), or in the absence of the Chairman of the Board, the
Vice Chairman of the Board (if there be one), or the President of the
Corporation shall call meetings of the shareholders to order and shall act as
chairman thereof. The Board of Directors may appoint any shareholder to act as
chairman of any meeting in the absence of the Chairman of the Board of Directors
and the President, and in the case of the failure of the Board to appoint a
chairman, the shareholders present at the meeting shall elect a chairman who
shall be either a shareholder or a proxy of a shareholder.
The Secretary of the Corporation shall act as secretary at all meetings of
shareholders. In the absence of the Secretary at any meeting of shareholders,
the chairman of the meeting may appoint any person to act as secretary of the
meeting.
Section 13. POWER OF CHAIRMAN. The chairman of any shareholders' meeting
shall have power to determine the eligibility of votes, and may reject votes,
whether cast in person or by proxy, as irregular, unauthorized, or not cast in
accordance with the Restated Articles of Incorporation, as amended, or these
bylaws. The decisions of such chairman as to such matters shall be final unless
challenged from the floor, immediately after being announced and
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overruled by the vote of the holders of a majority of the votes of the shares
represented at the meeting. Such chairman may appoint inspectors of election to
count ballots, whenever voting is by ballot. Such chairman shall have power to
order any unauthorized persons to leave the meeting and to enforce such orders,
and shall have and exercise all power and authority, and perform all duties
customarily possessed and performed by the presiding officer of such a meeting.
ARTICLE III.
Board of Directors.
Section 1. POWERS. The business and affairs of the Corporation shall be
managed by the Board of Directors.
Section 2. NUMBER AND QUALIFICATION OF DIRECTORS. The number of directors
shall be fixed by resolution of the Board of Directors within the range
established in the Restated Articles of Incorporation, as amended, and the
number of directors may be increased or decreased from time to time by
resolution of the Board of Directors within such range, provided no decrease
shall have the effect of shortening the term of any incumbent director. A
director may but need not be a shareholder or a resident of the State of Iowa.
Each director shall be elected to serve until the next annual meeting of the
shareholders and until the successor of such director shall be elected or
appointed as provided in Section 4 of this Article III, and shall have
qualified.
Section 3. NOMINATIONS. Nominations for the election of directors may be
made by the Board of Directors or a committee appointed by the Board of
Directors or by any shareholder entitled to vote in the election of directors
generally. However, any shareholder entitled to vote in the election of
directors generally may nominate one or more persons for election as directors
at a meeting only if written notice of such shareholder's intent to make such
nomination or nominations has been given, either by personal delivery or by
United States mail, postage prepaid, to the Secretary of the Corporation not
later than (a) with respect to an election to be held at an annual meeting of
shareholders, 120 days in advance of such meeting, and (b) with respect to an
election to be held at a special meeting of shareholders for the election of
directors, the close of business on the seventh day following the date on which
notice of such meeting is first given to shareholders. Each such notice shall
set forth: (i) the name and address of the shareholder who intends to make the
nomination and of the person or persons to be nominated; (ii) a representation
that the shareholder is a holder of record of stock of the Corporation entitled
to vote at such meeting and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the notice; (iii) a
description of all arrangements or understandings between the shareholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
shareholder; (iv) such other information regarding each nominee proposed by such
shareholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and
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Exchange Commission had the nominee been nominated, or intended to be nominated,
by the Board of Directors; and (v) the consent of each nominee to serve as a
director of the Corporation if so elected. The Chairman of the meeting may
refuse to acknowledge the nomination of any person not made in compliance with
the foregoing procedure.
Section 4. VACANCIES. In accordance with Article VI of the Restated
Articles of Incorporation, if a vacancy in the Board of Directors shall occur, a
majority of the remaining directors, though less than a quorum, may appoint a
director to fill such vacancy, who shall hold office for the unexpired term of
the directorship in respect of which such vacancy occurred or for the full term
of any new directorship caused by any increase in the number of members.
Section 5. PLACE OF MEETINGS. The Board of Directors may hold its
meetings, regular or special, within or without the State of Iowa at such place
or places as it may from time to time determine, or as may be specified in the
notice of the meeting.
Section 6. TIME AND PLACE OF MEETING. Regular meetings of the Board of
Directors shall be held, without notice other than this bylaw, quarterly on the
Wednesday next preceding the last Thursday of each January, April, July and
October at the principal office of the Corporation in Des Moines at ten o'clock
in the morning. The Chairman of the Board of Directors (if there be one), the
Vice Chairman of the Board of Directors (if there be one), or the President may
direct a different date, time or place for the holding of a regular meeting and
the Secretary shall advise the directors of any such change at least three days
in advance of the meeting date in the manner provided in Section 8 of this
Article III.
The Chairman of the Board of Directors (if there be one) or the President
shall have power to cancel not more than two successive regular meetings of the
Board of Directors by causing not less than one day's notice of such
cancellation to be given to the directors.
Section 7. SPECIAL MEETINGS. Special meetings of the Board of Directors
for any purpose or purposes may be called by the Chairman of the Board of
Directors (if there be one), the Vice Chairman of the Board of Directors (if
there be one), by the President or a majority of the members of the Board, and
shall be held at such place as may be fixed by the person or persons calling
such meeting and as shall be specified in the notice of such meeting. The
Secretary or an assistant secretary shall give not less than two days' notice of
the date, time and place of each such meeting to each director in the manner
provided in Section 8 of this Article III. Neither the business to be
transacted at, nor the purpose of, any special meeting of the Board of Directors
need be specified in the notice given, or waiver of notice obtained, of such
meeting as provided in Section 8 or 9, as the case may be, of Article III.
Section 8. MANNER OF GIVING NOTICE OF MEETINGS. Notice of any special
meeting of the Board of Directors may be given to any director by telephone,
facsimile or by telegram addressed to such director at such address as last
appears in the records of the Secretary of the Corporation or by mail by
depositing the same in the post office or letter box in a postpaid, sealed
envelope addressed to such director at such address or by placing with a courier
or delivery service with instructions for express delivery to such director at
such address.
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It shall be the duty of every director to furnish the Secretary of the
Corporation with the post office address of such director and to notify the
Secretary of any change therein.
Section 9. WAIVER OF NOTICE. Whenever any notice is required to be given
to directors under the provisions of the Iowa Business Corporation Act or of the
Restated Articles of Incorporation, as amended, or these bylaws, a waiver
thereof in writing signed by the director entitled to such notice, whether
before, at or after the time stated therein, shall be deemed equivalent
thereto. 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 because the
meeting is not lawfully called or convened.
Section 10. QUORUM. At all meetings of the Board of Directors, a majority
of the number of directors fixed by resolution of the Board of Directors in
accordance with Article III, Section 2 of these bylaws shall constitute a quorum
for the transaction of business. The act of a majority of the directors present
at any meeting at which a quorum is present shall be the act of the Board of
Directors, except as may be otherwise specifically provided by the Iowa Business
Corporation Act or by the Restated Articles of Incorporation, as amended, or by
these bylaws. If a quorum shall not be present at any meeting of directors, the
director or directors present may adjourn the meeting to a specified time,
without notice other than announcement at the meeting.
Section 11. CONDUCT OF MEETINGS. The Chairman of the Board of Directors
(if there be one) or, in the absence of the Chairman of the Board, the Vice
Chairman of the Board of Directors (if there be one), or the President of the
Corporation shall act as the presiding officer at Board of Director meetings,
and the Secretary or an assistant secretary of the Corporation shall act as the
secretary of the meeting. In the absence of the Chairman of the Board of
Directors (if there be one), the Vice Chairman of the Board of Directors (if
there be one), and the President, the Board of Directors may appoint a director
to act as the presiding officer. The presiding officer at Board of Director
meetings shall be entitled to vote as a director on all questions.
Minutes of all meetings of the Board of Directors shall be permanently kept
by the Secretary, and all minutes shall be signed by the secretary of the
meeting.
The Board of Directors shall have power to formulate rules and regulations
governing the conduct of Board of Director meetings and the procedure thereat.
Section 12. EXECUTIVE AND OTHER COMMITTEES. The Board of Directors may,
by resolution adopted by a majority of the number of directors fixed in
accordance with Article III, Section 2 of these bylaws, designate from among its
members an executive committee, and one or more other committees each of which,
to the extent provided in such resolution and permitted by the Iowa Business
Corporation Act, shall have and may exercise all the authority of the Board of
Directors. Unless otherwise provided by resolution of the Board of Directors, a
quorum of each such committee shall consist of a majority of its members, and if
a quorum is present when a vote is taken, the affirmative vote of a majority of
the members present shall be the act of such committee.
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Section 13. COMPENSATION OF DIRECTORS. The Board of Directors shall have
the authority to fix the compensation of directors. Any director may serve the
Corporation in any other capacity and receive compensation therefor.
Section 14. INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES.
(a) RIGHT TO INDEMNIFICATION. Each person who was or is a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative or
arbitration and whether formal or informal ("proceeding"), by reason of the fact
that he or she, or a person of whom he or she is the legal representative, is or
was a director, officer or employee of the Corporation or is or was serving at
the request of the Corporation as a director, officer or employee of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity while serving as a
director, officer or employee or in any other capacity while serving as a
director, officer or employee, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Iowa Business Corporation
Act, as the same exists or may hereafter be amended, (but, in the case of any
such amendment, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than the Iowa Business Corporation Act
permitted the Corporation to provide prior to such amendment), against all
reasonable expenses, liability and loss (including, without limitation,
attorneys' fees, all costs, judgments, fines, Employee Retirement Income
Security Act excise taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith. Such right shall be a contract right and shall include the right to
be paid by the Corporation expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, that, the payment of such
expenses incurred by a director, officer or employee in his or her capacity as a
director, officer or employee (and not in any other capacity in which service
was or is rendered by such person while a director, officer or employee
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of such proceeding, shall be made only upon delivery to
the Corporation of (i) a written undertaking, by or on behalf of such director,
officer or employee to repay all amounts so advanced if it should be determined
ultimately that such director, officer or employee is not entitled to be
indemnified under this Section or otherwise, or (ii) a written affirmation by or
on behalf of such director, officer or employee that, in such person's good
faith belief, such person has met the standards of conduct set forth in the Iowa
Business Corporation Act.
(b) RIGHT OF CLAIMANT TO BRING SUIT. If a claim under paragraph (a) is
not paid in full by the Corporation within thirty (30) days after a written
claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expenses of prosecuting such claim. It shall be a defense
to any such action that the claimant has not met the standards of conduct which
make it permissible under the Iowa Business Corporation Act for the Corporation
to indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. The failure of the Corporation (including
its Board of Directors, independent legal counsel, or its shareholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he
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or she has met the applicable standard of conduct set forth in the Iowa Business
Corporation Act, shall not be a defense to the action or create a presumption
that claimant had not met the applicable standard of conduct.
(c) BENEFIT. Indemnification provided hereunder shall, in the case of the
death of the person entitled to indemnification, inure to the benefit of such
person's heirs, executors or other lawful representatives. The invalidity or
unenforceability of any provision of this Section 14 shall not affect the
validity or enforceability of any other provision of this Section 14.
(d) CERTAIN ACTIONS; PRESUMPTION OF STANDARD OF CONDUCT. Any action taken
or omitted to be taken by (i) any director, officer or employee in good faith
and in compliance with or pursuant to any order, determination, approval or
permission made or given by a commission, board, official or other agency of the
United States or of any state or other governmental authority with respect to
the property or affairs of the Corporation or any such business corporation,
not-for-profit corporation, joint venture, trade association or other entity
over which such commission, board, official or agency has jurisdiction or
authority or purports to have jurisdiction or authority or (ii) by any director
of the Corporation pursuant to Section D of Article VIII of the Restated
Articles of Incorporation, as amended, shall be presumed to be in compliance
with the standard of conduct set forth in Section 490.851 (or any successor
provision) of the Iowa Business Corporation Act whether or not, in the case of
clause (i), it may thereafter be determined that such order, determination,
approval or permission was unauthorized, erroneous, unlawful or otherwise
improper.
(e) LITIGATION; PRESUMPTION OF STANDARD OF CONDUCT. Unless finally
determined, the termination of any litigation, whether by judgment, settlement,
conviction or upon a plea of NOLO CONTENDERE, or its equivalent, shall not
create a presumption that the action taken or omitted to be taken by the person
seeking indemnification did not comply with the standard of conduct set forth in
Section 490.851 (or successor provision) of the Iowa Business Corporation Act.
(f) NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any person by
this Section 14 shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the Restated Articles
of Incorporation, as amended, bylaws, agreement, vote of shareholders or
disinterested directors or otherwise.
(g) INSURANCE. The Corporation may maintain insurance, at its expense, to
protect itself and any such director, officer or employee of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability or
loss under the Iowa Business Corporation Act.
Section 15. ACTION BY DIRECTORS WITHOUT A MEETING. Any action required to
be taken at a meeting of the Board of Directors or a committee of directors and
any other action which may be taken at a meeting of the Board of Directors or a
committee of directors may be taken without a meeting if a consent in writing,
setting forth the action so taken, shall be signed by all of the directors or
all of the members of the committee of directors, as the case may be, entitled
to vote with respect to the subject matter thereof.
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ARTICLE IV.
Officers.
At the first regular meeting of the Board of Directors following each
annual meeting of the shareholders, the Board shall elect a President, one or
more Vice Presidents as prescribed by these bylaws, a Secretary and a Treasurer;
and the Board may at any meeting elect or appoint a Chairman of the Board of
Directors, a Vice Chairman of the Board of Directors, additional vice presidents
and other officers or assistants to officers.
The Chairman of the Board of Directors (if there be one) and the Vice
Chairman of the Board of Directors (if there be one) shall be selected from
among the members of the Board. The officers of the Corporation may be, but are
not required to be, directors. An officer may, but need not be, a shareholder
of the Corporation.
Subject to the power of the Board of Directors to remove any officer from
office at any time when in its judgment the best interests of the Corporation
will be served thereby, each officer shall serve until the successor of such
officer is elected or appointed, unless the tenure of such officer is otherwise
fixed by the Board of Directors by resolution, contract or agreement for a
different period of time.
The Board of Directors shall have power to fix the compensation of each
officer, to prescribe the duties of such officer, to decrease or increase such
compensation, change the nature of such duties, or remove such officer from
office and elect or appoint the successor of such officer, in each case subject
to the terms of any agreement between such officer and the Corporation.
Section 1. CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the Board
of Directors (if there be one) shall preside at all meetings of the shareholders
and of the directors, at which the Chairman is present. The Chairman shall
perform all duties incident to the office of Chairman of the Board of Directors
and such other duties as, from time to time, may be assigned to the Chairman by
the Board of Directors, and, if so designated by an appropriate resolution of
the Board of Directors or an agreement between the Chairman and the Corporation,
shall be the chief executive officer of the Corporation, subject, however, to
the right of the Board of Directors to delegate any specific power to any other
officer or officers of the Corporation; and the Chairman shall see that all
orders and resolutions of the Board of Directors are carried into effect.
Section 2. VICE CHAIRMAN OF THE BOARD OF DIRECTORS. The Board of
Directors may elect or appoint a Vice Chairman of the Board of Directors who
shall, in the absence or disability of the Chairman or in case of vacancy in the
office, assume all duties of the Chairman and such other duties as, from time to
time, may be assigned to the Vice Chairman by the Board of Directors.
Section 3. PRESIDENT. The President of the Corporation shall have general
and active management of and exercise general supervision of the business and
affairs of the Corporation and, if so designated by an appropriate resolution of
the Board of Directors, or an agreement between the President and the
Corporation, shall be the chief executive officer of the
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Corporation, subject, however, to the right of the Board of Directors to
delegate any specific power to any other officer or officers of the Corporation;
and the President shall see that all orders and resolutions of the Board of
Directors are carried into effect. The President shall have concurrent power
with the Chairman of the Board of Directors to sign bonds, mortgages,
certificates for shares, and other contracts and documents, except in cases
where the signing and execution thereof shall be expressly delegated by law, by
the Board of Directors, or by these bylaws to some other officer of the
Corporation. In the absence of the Chairman of the Board of Directors or in the
event of the disability or refusal of the Chairman to act, and in the absence of
the Vice Chairman of the Board of Directors or in the event of the disability or
refusal of the Vice Chairman to act, the President shall have such other powers
as are vested in the Chairman of the Board of Directors. In general, the
President shall perform the duties incident to the office of President and such
other duties as may be prescribed by the Board of Directors from time to time.
Section 4. EXECUTIVE VICE PRESIDENT. The Board of Directors may designate
an Executive Vice President who shall, in the absence or disability of the
President, or in case of a vacancy in that office, assume all duties of the
President.
Section 5. VICE PRESIDENTS. The Vice Presidents, including the Executive
Vice President and Vice Presidents designated by the Board of Directors as
Senior Vice Presidents or Group Vice Presidents, shall perform such of the
duties and exercise such of the powers of the President as shall be assigned to
them from time to time by the Board of Directors or the President, and shall
perform such other duties as the Board of Directors or the President shall from
time to time prescribe. Any Vice President may sign certificates for shares of
the Corporation and any deeds, mortgages, bonds, contracts or other instruments
which the Board of Directors has authorized to be executed, which authorizations
may be either specific or general. In case of the death, disability or absence
of the Chairman of the Board of Directors (if there be one) and the President
and the Executive Vice President, the Senior Vice President or the Group Vice
President (or, if there be more than one, the Senior Vice President or the Group
Vice President designated by the Board of Directors) shall perform the duties of
the President, including interim duties, and when so acting shall have all the
powers of and be subject to all restrictions upon the President.
Section 6. SECRETARY. The Secretary shall attend all meetings of the
shareholders and of the Board of Directors and shall keep the minutes of such
meetings. The Secretary shall perform like duties for the standing committees
of the Board of Directors when required. Except as otherwise provided by these
bylaws or by the Iowa Business Corporation Act, the Secretary shall give, or
cause to be given, notice of all meetings of the shareholders and of the Board
of Directors, and shall perform such other duties as may be prescribed by the
Board of Directors or the Chairman of the Board of Directors (if there be one)
or the President.
The Secretary shall have custody of the minute books, containing the
minutes of shareholders' and directors' meetings, of the stock books of the
Corporation, and of all corporate records. The Secretary shall have the duty to
see that the books, reports, statements, certificates and all other documents
and reports of the Corporation required by law are properly prepared, kept and
filed. The Secretary shall, in general, perform all duties incident to the
office of Secretary.
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Section 7. ASSISTANT SECRETARIES. The assistant secretaries shall perform
such of the duties and exercise such of the powers of the Secretary as shall be
assigned to them from time to time by the Board of Directors or the Chairman of
the Board of Directors (if there be one) or the President or the Secretary, and
shall perform such other duties as the Board of Directors or the Chairman of the
Board of Directors (if there be one) or the President shall from time to time
prescribe.
Section 8. TREASURER. The Treasurer shall have the custody of all moneys,
stocks, bonds and other securities of the Corporation, and of all other papers
on which moneys are to be received and of all papers which relate to the receipt
or delivery of the stocks, bonds, notes and other securities of the Corporation
in the possession of the Treasurer. The Treasurer is authorized to receive and
receipt for stocks, bonds, notes and other securities belonging to the
Corporation or which are received for its account, and to place and keep the
same in safety deposit vaults rented for the purpose, or in safes or vaults
belonging to the Corporation. The Treasurer is authorized to collect and
receive all moneys due the Corporation and to receipt therefor, and to endorse
all checks, drafts, vouchers or other instruments for the payment of money
payable to the Corporation when necessary or proper and to deposit the same to
the credit of the Corporation in such depositaries as the Treasurer may
designate for the purpose, and the Treasurer may endorse all commercial
documents for or on behalf of the Corporation. The Treasurer is authorized to
pay interest on obligations when due and dividends on stock when duly declared
and payable. The Treasurer shall, when necessary or proper, disburse the funds
of the Corporation, taking proper vouchers for such disbursements. The
Treasurer shall cause to be kept in the office of the Treasurer true and full
accounts of all receipts and disbursements, and shall render to the Board of
Directors and the Chairman of the Board of Directors (if there be one) or the
President, whenever they may require it, an account of all the transactions as
Treasurer and of the financial condition of the Corporation. The Treasurer
shall also perform such other duties as may be prescribed by the Board of
Directors or the Chairman of the Board of Directors (if there be one) or the
President. The Treasurer shall, in general, perform all duties usually incident
to the office of Treasurer.
Section 9. ASSISTANT TREASURERS. The assistant treasurers shall perform
such of the duties and exercise such of the powers of the Treasurer as shall be
assigned to them from time to time by the Board of Directors or the Chairman of
the Board of Directors (if there be one) or the President or the Treasurer, and
shall perform such other duties as the Board of Directors or the Chairman of the
Board of Directors (if there be one) or the President shall from time to time
prescribe.
ARTICLE V.
Stock Certificates.
Section 1. REGISTRARS AND TRANSFER AGENTS. The Board of Directors shall
determine the form of and provide for the issue, registration and transfer of
the stock certificates representing stock of the Corporation, and may appoint
registrars and transfer agents, who may be natural persons or corporations. The
office of any transfer agent or registrar may be maintained within or without
the State of Iowa.
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Section 2. SIGNATURES. Any stock certificates issued by the Corporation
shall bear the signatures of the Chairman of the Board of Directors (if there be
one), or the Vice Chairman of the Board of Directors (if there be one), or the
President or any Vice President and of the Secretary or any Assistant Secretary
and such officers are hereby authorized and empowered to sign such certificates
when the issuance thereof has been duly authorized by the Board of Directors;
provided, however, that if certificates representing shares of any class or
series of stock issued by the Corporation are countersigned by manual signature
by a transfer agent, other than the Corporation or its employee, or registered
by manual signature by a registrar, other than the Corporation or its employee,
any other signature on such certificate may be a facsimile, engraved, stamped or
printed. In case any person who is an officer who has signed or whose facsimile
signature has been placed upon such certificate representing stock of the
Corporation shall cease to be such officer of the Corporation before such
certificate is issued, such certificate may be issued by the Corporation with
the same effect as if such person was such officer at the date of its issue.
Section 3. TRANSFERS. Transfers of shares shall be made on the books of
the Corporation only by the registered owner thereof (or the legal
representative of such owner, upon satisfactory proof of authority therefor), or
by the attorney of such owner lawfully constituted in writing by documents filed
with the Secretary or transfer agent of the Corporation, and only upon surrender
of the certificate to be transferred, or delivery of an order of such owner if
such shares are not represented by a certificate, and payment of applicable
taxes with respect to such transfer, unless otherwise ordered by the Board of
Directors.
Section 4. LOST OR DESTROYED CERTIFICATES. New certificates may be issued
to replace lost, stolen or destroyed certificates, upon such terms and
conditions as the Board of Directors may prescribe.
Section 5. RIGHTS OF REGISTERED OWNERS. The Corporation shall be entitled
to recognize the exclusive right of a person registered or shown on its books as
the owner of shares of its stock to receive dividends or any other distribution
thereon, or to vote such shares, and to treat such person as the owner of such
shares for all purposes and the Corporation shall not be bound to recognize any
equitable or other claim to or interest in its shares on the part of any person
other than the registered or record owner thereof, whether or not it shall have
notice thereof.
ARTICLE VI.
General Provisions.
Section 1. INSTRUMENTS AFFECTING REAL ESTATE. Deeds, mortgages and other
instruments affecting real estate owned by the Corporation, the execution of
which has been duly authorized by the Board of Directors, shall be signed on
behalf of the Corporation by the Chairman of the Board of Directors (if there be
one), the Vice Chairman of the Board of Directors (if there be one), or the
President or any Vice President and by the Secretary or any Assistant
Secretary. Leases, contracts to purchase and other instruments whereby the
Corporation acquires, in the ordinary course of business, an interest in real
estate owned by
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others may be executed on behalf of the Corporation by the Chairman of the Board
of Directors (if there be one), the Vice Chairman of the Board of Directors (if
there be one), the President or by any Vice President so authorized.
Section 2. OTHER INSTRUMENTS. Bonds, notes and other secured or unsecured
obligations of the Corporation, when duly authorized by the Board of Directors,
may be executed on behalf of the Corporation by the Chairman of the Board of
Directors (if there be one) the Vice Chairman of the Board of Directors (if
there be one), or the President or any Vice President, or by any other officer
or officers thereunto duly authorized by the Board of Directors and the
signature of any such officer may, if the Board of Directors shall so determine,
be a facsimile. Contracts and other instruments entered into executed in the
ordinary course of business may be signed on behalf of the Corporation by the
Chairman of the Board of Directors (if there be one), the Vice Chairman of the
Board of Directors (if there be one), or the President or by any officer or
employee of the Corporation thereunto authorized by the Chairman of the Board of
Directors (if there be one), the Vice Chairman of the Board of Directors (if
there be one), or the President, without obtaining specific authorization
therefor from the Board of Directors.
Section 3. DESTRUCTION OF RECORDS. The Chairman of the Board of Directors
(if there be one), the Vice Chairman of the Board of Directors (if there be
one), or the President or any Vice President appointed by the President to serve
in place of the President, the Secretary and the Treasurer shall constitute a
committee for the destruction of records and shall meet from time to time at the
call of the Secretary who shall be chairman of such committee. It shall have
power to order and cause the destruction of any corporate records, the
preservation of which has been found by it to be no longer necessary or
desirable.
Section 4. FISCAL YEAR. The fiscal year of the Corporation shall be the
calendar year.
Section 5. ANNUAL REPORT. As soon as practicable after the close of each
fiscal year, the Board of Directors shall cause an annual report of the business
and affairs of the Corporation to be made to the shareholders.
Section 6. NO CORPORATE SEAL. The Corporation shall have no corporate
seal.
Section 7. STOCK IN OTHER CORPORATIONS. Unless otherwise ordered by the
Board of Directors, the Chairman of the Board of Directors (if there be one),
the Vice Chairman of the Board of Directors (if there be one), or the President
or any Vice President of the Corporation (1) shall have full power and authority
to act and vote, in the name and on behalf of the Corporation, at any meeting of
shareholders of any corporation in which this Corporation may hold stock, and at
any such meeting shall possess and may exercise any and all of the rights and
powers incident to the ownership of such stock, and (2) shall have full power
and authority to execute, in the name and on behalf of the Corporation,
proxies appointing any suitable person or persons to act and to vote at any
meeting of shareholders of any corporation in which the Corporation may hold
stock, and at any such meeting the person or persons so designated shall possess
and may exercise any and all of the rights and powers incident to the ownership
of such stock.
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ARTICLE VII.
Amendments.
These bylaws may be altered, amended or repealed and new bylaws may be
adopted by vote of a majority of the number of directors fixed by these bylaws
at any regular or special meeting of the Board of Directors.
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