BY-LAWS
OF
THE EMPIRE DISTRICT ELECTRIC COMPANY
(As Amended April 27, 2000)
Principal Office in Joplin, Missouri
INDEX
ARTICLE I
Location of Offices 1
ARTICLE II
Meetings of Stockholders 1
ARTICLE III
Directors 2
ARTICLE IV
Officers 4
ARTICLE V
Indemnification 7
ARTICLE VI
Capital Stock 9
ARTICLE VII
Miscellaneous 11
ARTICLE VIII
Emergency - Provisions Governing 12
THE EMPIRE DISTRICT ELECTRIC COMPANY
BY-LAWS
ARTICLE I
LOCATION OF OFFICES
SECTION 1 - REGISTERED OFFICE. The registered office in
Kansas of The Empire District Electric Company (the "Company")
shall be in Topeka.
SECTION 2 - PRINCIPAL AND OTHER OFFICES. The principal office
or place of business of the Company shall be in Joplin, Missouri.
The Company may also have an office or offices in any other place
or places, either within or without the State of Kansas.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1 - ANNUAL MEETINGS. The annual meeting of
stockholders for the election of directors and the transaction of
such other business as may come before the meeting shall be held
at such place, either within or without the State of Kansas, as
may be designated by resolution of the Board of Directors, on the
third Thursday in April of each year or, if that be a legal
holiday, on the next succeeding day not a legal holiday, at 9:30
A.M. (Joplin Time), or at such other time and on such other day
as may be fixed by resolution of the Board of Directors.
SECTION 2 - SPECIAL MEETINGS. Special meetings of the
stockholders, which may be held either within or without the
State of Kansas, may be called at any time by the Board of
Directors or by the President or a Vice President.
SECTION 3 - LIST OF
STOCKHOLDERS. The Secretary or any other officer who shall have
charge of the stock ledger of the Company shall prepare and make,
at least ten (10) days before every election of directors, a
complete list of the stockholders entitled to vote at said
election, arranged in alphabetical order. Such list shall be
open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a
period of at least ten (10) days prior to the meeting, either at
a place within the city where the meeting is to be held, which
place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held; and
such list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
SECTION 4 - VOTING. Unless it shall be otherwise provided in
the Articles of Incorporation of the Company, each stockholder
shall be entitled at every meeting of the stockholders to one
vote in person or by proxy for each share of the capital stock of
the Company held by such stockholder; but no proxy shall be voted
after three (3) years from its date, unless said proxy provides
for a longer period. Except where the transfer books of the
Company shall have been closed or a date shall have been fixed as
a record date for the determination of the stockholders of the
Company entitled to vote, no share of stock shall be voted at any
election for directors which shall have been transferred on the
books of the Company within twenty (20) days next preceding such
election of directors.
SECTION 5 - NOTICE. Notice stating the place, time and
purposes of all meetings of stockholders shall be mailed by the
Secretary of the Company to each stockholder of record entitled
to notice at his or her last known post office address not less
than ten (10) nor more than fifty (50) days prior thereto.
SECTION 6 - QUORUM. Subject to the provisions of the General
Corporation Code of the State of Kansas and the Articles of
Incorporation of the Company, the holders of a majority of the
shares of the capital stock of the Company having voting power
shall be present in person or represented by proxy at any meeting
in order to constitute a quorum for, and the votes that shall be
necessary for, the transaction of any business; but the holders
of a smaller number of shares may adjourn from time to time
without further notice other than by announcement at the meeting
until a quorum shall be obtained.
SECTION 7 - CONTROL SHARE ACQUISITIONS. Kansas Statutes
Annotated 17-1286 through 17-1298 shall not apply to control
share acquisitions (as defined therein) of the Company's capital
stock.
ARTICLE III
DIRECTORS
SECTION 1 - FUNCTION. The business of the Company shall be
managed by its Board of Directors.
SECTION 2 - QUORUM. A majority of the total number of
directors shall constitute a quorum for the transaction of
business, except as may be otherwise provided by these By-laws,
in the Articles of Incorporation of the Company or in the General
Corporation Code of the State of Kansas; but from time to time a
smaller number of directors may adjourn a meeting without any
notice other than by announcement at the meeting until a quorum
shall be obtained. A record shall be made of each such
adjournment.
SECTION 3 - PLACE OF MEETING. Subject to the provisions of
this Article, meetings of the Board of Directors may be held at
any place within or without the State of Kansas. Unless otherwise
restricted by the Articles of Incorporation or these By-laws,
members of the Board of Directors or of any committee thereof may
participate in a meeting of the Board of Directors or committee
by means of conference telephone or similar communications
equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting
pursuant to this second sentence of Section 3 shall constitute
presence in person at such meeting.
SECTION 4 - EFFECTIVE ACTION. Except as may otherwise be
provided by law, the Articles of Incorporation of the Company or
these By-laws, the act of a majority of the directors present at
a meeting at which a quorum is present shall be the act of the
Board. In addition, unless otherwise restricted by the Articles
of Incorporation or these By-laws, any action required or
permitted to be taken at any meeting of the Board of Directors or
of any committee thereof may be taken without a meeting, if all
members of the Board of Directors or committee, as the case may
be, consent thereto in writing and the writing or writings are
filed with the minutes of proceedings of the Board of Directors
or committee.
SECTION 5 - MEETINGS. All regular meetings of the Board of
Directors shall be held within or without the State of Kansas and
at such time, date and place as may from time to time be fixed by
resolution of the Board; provided, however, that the Chairman of
the Board, or the President or a Vice President may, with the
concurrence of a majority of the Board of Directors, change the
time, date or place of any regular meeting, provided that oral,
telegraphic or written notice is duly served on or sent or mailed
to each director not less than two days before any such meeting.
Except as otherwise provided for in the immediately preceding
sentence, no notice of regular meetings as set by the Board of
Directors need be given. Special meetings of the Board of
Directors may be held at any time, date and place upon call of
the Chairman of the Board of Directors, or the President, or any
three of the other directors or a Vice President, by oral,
telegraphic or written notice, duly served on or sent or mailed
to each director not less than two days before any such meeting.
A meeting of the Board of Directors may be held without notice
immediately after the annual meeting of the stockholders. Any
meeting may be held without notice if all of the directors are
present at the meeting, or if all of the directors sign a waiver
thereof in writing.
SECTION 6 - COMMITTEES, GENERAL. By resolution or resolutions
passed by a majority of the whole Board of Directors, the Board
may create and designate various committees, which committees
shall
(i) consist of two or more of the directors of the Company,
(ii) have and may exercise the powers of the Board of
Directors in the management of the business or affairs of
the Company to the extent provided in such resolution or
resolutions, these By-laws or in the Articles of
Incorporation of the Company,
(iii) have power to authorize the seal of the Company to
be affixed to all papers which may require it, and
(iv) have such name or names as may be stated in the
Articles of Incorporation of the Company, or these By-
laws, or as may be determined from time to time by
resolution adopted by the Board of Directors.
Any such committee shall meet at such stated times and places or
on such call or notice, keep such minutes or other records, make
such reports, adopt or follow such rules of procedure and have
such quorum as may be prescribed by, or pursuant to, resolution
or resolutions of the Board of Directors; but unless and until
any such resolution or resolutions shall have been adopted, any
such committee shall adopt its own rules and regulations for the
calling and holding of its meetings, the making of reports and
the keeping of records.
SECTION 7 - EXECUTIVE COMMITTEE. If there shall be an
Executive Committee, it shall not have authority to make, alter
or amend the By-laws; but unless the Board of Directors shall
otherwise prescribe from time to time, the Executive Committee
may exercise between meetings of the Board of Directors all other
powers of the Board of Directors except
(i) the power to fill vacancies in the Board of Directors
itself,
(ii) the power to fill vacancies in the membership of the
Executive Committee or any other standing committee of
the Board of Directors (which vacancies in standing
committees shall be filled by the Board of Directors),
(iii) the power to close the stock transfer books or
fix record dates as provided in Section 4 of Article VI
of these By-laws,
(iv) powers which these By-laws provide shall be
exercised only by a majority of the whole Board of
Directors, and
(v) powers which by law must be exercised by the Board
itself.
SECTION 8 - COMPENSATION. Directors and members of standing
committees thereof shall receive such compensation as the Board
may prescribe from time to time.
ARTICLE IV
OFFICERS
SECTION 1 - REQUIRED AND OPTIONAL, ELECTION. At the first
meeting of the Board of Directors of the Company following each
annual election of directors, a majority of the whole Board of
Directors shall choose a President, one or more Vice Presidents,
a Secretary and a Treasurer; and at such meetings or at any other
meeting, a majority of the whole Board of Directors may choose a
Chairman of the Board, one or more Assistant Secretaries, one or
more Assistant Treasurers and any other officers which such
majority may deem to be necessary; and shall designate from among
the officers so chosen a Principal Financial Officer and a
Principal Accounting Officer who may be the same person. At any
meeting a majority of the whole Board of Directors may designate
any Vice President as the Executive Vice President.
SECTION 2 - QUALIFICATION, COMBINING OFFICES, REQUIRING BOND.
The Chairman of the Board, if any there be, and the President
shall be chosen from among the directors and may be the same
person. The Secretary and the Treasurer may be the same person.
If deemed advisable by the Board of Directors a Vice President
may hold the office of Vice President and Treasurer or Vice
President and Secretary, but not the offices of Vice President,
Secretary and Treasurer. The Board of Directors shall require the
Treasurer, and may require other officers, to give such bond
indemnifying the Company against fraud or dishonesty as it shall
deem advisable.
SECTION 3 - TERM. The officers of the Company shall hold
their offices until their successors are chosen and qualified
unless the respective term of office has been terminated by
resignation in writing duly filed in the office of the Secretary
of the Company; but a majority of the whole Board of Directors at
any meeting thereof may remove any officer with or without cause.
SECTION 4 - VACANCIES. A majority of the whole Board of
Directors shall fill any vacancy in the office of the President,
the Secretary or the Treasurer and may fill the vacancies
occurring in other offices.
SECTION 5 - CHAIRMAN. In the event that a Chairman of the
Board shall be included among the officers elected, he shall be a
member ex officio of any committee of the Board, and may call
meetings thereof, and shall preside at all meetings of the Board
and, unless the Board shall designate another Director as
Chairman of any such standing committee, of any standing
committee thereof at which he shall be present. In the event that
the offices of the Chairman of the Board and the President are
separately held, the Chairman of the Board shall act in an
advisory capacity to the President or to any other officer who
shall be performing the duties of the President in his absence or
in the event of his inability to act, and may act in an advisory
capacity to any other officer of the Company; but the Chairman of
the Board shall not be required to perform any executive duties.
When authorized by the Board of Directors or the Executive
Committee, the Chairman of the Board shall have power to sign and
execute on behalf of the Company contracts, agreements, deeds,
leases or other conveyances, indentures, mortgages, bonds, notes
or other evidences of indebtedness, stock or other certificates,
powers, assignments, reports, statements and records and other
instruments and documents; and may affix or authorize to be
affixed thereto the corporate seal of the Company; and he shall
also have such special powers and perform such special duties as
may be prescribed by the Board of Directors or by the Executive
Committee.
SECTION 6 - PRESIDENT. The President of the Company shall be
its chief executive officer. He shall preside at all meetings of
the stockholders; and, if there be no Chairman of the Board or in
his absence, the President shall preside at all meetings of the
Board of Directors. If the Board has not designated a Chairman of
any standing committee of the Board and (i) if the officers of
the Company shall not include a Chairman of the Board, the
President shall preside at all meetings of any standing committee
of the Board of Directors, and (ii) if the officers of the
Company do include a Chairman of the Board, the President shall
preside at all such meetings in the absence of such Chairman. Ex
officio, the President shall be a member of any standing
committee of the Board of Directors other than any audit
committee, and may call meetings thereof. Subject to the
supervision and direction of the Board of Directors and the
Executive Committee, the President shall have general and active
management of the business of the Company and shall see to it
that all orders and resolutions of the Board of Directors and any
standing committees thereof are carried into effect. The
President shall have supervision and direction of the other
officers of the Company and shall see that their duties are
properly performed. The President may execute on behalf of the
Company contracts, agreements, deeds, leases or other
conveyances, indentures, mortgages, bonds, notes or other
evidences of indebtedness, stock or other certificates, powers,
assignments, reports, statements and records and other
instruments and documents; and may affix or authorize to be
affixed thereto the corporate seal of the Company. The President
shall have the general duties and powers of management and
supervision usually vested in the office of the President and
shall perform such special duties and shall have such special
powers as the Board of Directors or the Executive Committee may
assign to him from time to time.
SECTION 7 - EXECUTIVE VICE PRESIDENT. If the Board of
Directors shall designate one of the Vice Presidents of the
Company as the Executive Vice President, the Vice President so
designated shall have the general and active management of the
business subject to the supervision and direction of the
President, the Executive Committee and the Board of Directors. In
the absence of the President or in the event of his inability to
act, the Executive Vice President shall perform the duties and
may exercise any of the powers of the President. The Executive
Vice President shall have power coordinate with the like power of
the President to execute instruments and documents on behalf of
the Company. The Executive Vice President shall have such special
powers and perform such special duties as may be prescribed by
the President, the Executive Committee or the Board of Directors.
SECTION 8 - VICE PRESIDENT(S). The Vice President or Vice
Presidents shall have the power coordinate with the like power of
the President to execute instruments and documents on behalf of
the Company, and any instrument or document so signed by a Vice
President shall be as valid and binding as if signed by the
President. If there be no Executive Vice President, or if he be
absent or disabled, any Vice President may perform any of the
duties of the President and exercise any of his powers in his
absence or in the event of his inability to act. The Vice
President or Vice Presidents shall perform such other duties as
the Executive Vice President if there be one, the President, the
Executive Committee or the Board of Directors may prescribe from
time to time.
SECTION 9 - SECRETARY. The Secretary shall attend all
meetings of the Board of Directors and all meetings of the
stockholders; and he shall record all facts and minutes of all
such proceedings in books to be kept for that purpose. He shall
perform like duties for the Executive Committee and any other
standing committee of the Board of Directors, when requested so
to do. He shall give or cause to be given notice of all meetings
of the stockholders and of special meetings of the Board of
Directors and of any change in the time, date or place at which a
particular regular meeting is to be held. The Secretary shall
notify in writing each director and officer of his election and
each member of a standing committee of the Board of Directors of
his appointment thereto. The Secretary shall have the custody of
the corporate seal of the Company, and shall affix and attest the
same when authorized by a Vice President, the President, the
Executive Committee or the Board of Directors or, if the officers
of the Company include a Chairman of the Board, when authorized
by such Chairman pursuant to authorization of the Executive
Committee or the Board of Directors. The Secretary shall be the
custodian of all papers brought before the stockholders or the
Board of Directors for action or ordered on file, of all written
contracts, deeds, leases or other instruments of transfer,
insurance policies, records and evidences of title to real estate
and other property (except moneys and securities) owned, held or
controlled by the Company. The Secretary shall keep the stock
ledger of the Company and such lists of the stockholders of the
Company as may be required by law. The Secretary shall also
prepare and make out, before the payment of any dividend on
shares of the capital stock of the Company and at least ten (10)
days before any stockholders' meeting, a true and correct list,
in alphabetical order, of the names of all persons in whose name
or names any stock shall stand on the books of the Company at the
time of the close of the transfer books, or at the close of
business on a record date fixed by these By-laws or by the Board
of Directors for the determination of stockholders to whom
dividends are to be paid, or who are entitled to vote at such
meeting, and enter opposite each name the number of shares held
by each. He shall certify such list for use at such stockholders'
meeting or, in case of dividend payments, for the use of the
Treasurer. He shall perform such other duties as may be assigned
to him by the Executive Vice President if there be one, the
President, the Executive Committee or the Board of Directors.
SECTION 10 - TREASURER. The Treasurer shall have custody of
the moneys or funds and the securities of the Company, shall keep
full and accurate accounts of receipts and disbursements in books
belonging to the Company, and shall deposit all moneys and other
valuable effects in the name and to the credit of the Company
with such depositaries as may be designated by the Board of
Directors. Except as may be otherwise directed by the Executive
Vice President if there be one, the President, the Executive
Committee or the Board of Directors, the Treasurer shall disburse
the funds of the Company when it shall be necessary or in his
judgment proper so to do, taking proper vouchers for such
disbursements; and upon request, he shall render to the Executive
Vice President if there be one, the President, the Board of
Directors or any standing committee thereof an account of his
transactions as Treasurer and of the financial condition of the
Company and the results of its operations. The Treasurer shall
have power, whenever authorized by the Board of Directors or the
Executive Committee, to borrow money on such terms as shall be
deemed proper; and he shall keep himself advised with respect to
the finances of the Company. The Treasurer shall perform such
other duties as the Executive Vice President if there be one, the
President, the Executive Committee or the Board of Directors may
prescribe from time to time.
SECTION 11 - ASSISTANT SECRETARIES. Any Assistant Secretary
shall have such powers and perform such duties as the Secretary,
the Executive Vice President if there be one, the President, the
Executive Committee or the Board of Directors shall give or
assign to him. In the event of the absence of the Secretary or
his inability to act, any Assistant Secretary shall have all the
powers and may perform any of the duties of the Secretary.
SECTION 12 - ASSISTANT TREASURER. Any Assistant Treasurer
shall have such powers and perform such duties as the Treasurer,
the Executive Vice President if there be one, the President, the
Executive Committee or the Board of Directors shall give or
assign to him. In the event of the absence of the Treasurer or
his inability to act, any Assistant Treasurer shall have all the
powers and may perform any of the duties of the Treasurer.
ARTICLE V
INDEMNIFICATION
SECTION 1. Each person who is or was made 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 otherwise (hereinafter a "proceeding"), by
reason of the fact that such person, or a person of whom such
person is the legal representative, is or was a director,
officer, employee or agent of the Company or is or was serving at
the request of the Company, as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust
or other enterprise shall be indemnified and held harmless by the
Company to the fullest extent authorized by the Kansas General
Corporation Code, 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 Company to provide broader
indemnification rights than said law permitted the Company to
provide prior to such amendment), against all expense, liability
and loss (including attorneys' fees, judgments, fines and amounts
paid or to be paid in settlement) actually and reasonably
incurred by such person in connection therewith; provided,
however, that, except as provided in Section 2 of this Article V
with respect to proceedings seeking to enforce rights to
indemnification, the Company shall indemnify any such person
seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or
part thereof) was authorized by a two-thirds vote of the
Continuing Directors, as that term is defined in Article V,
Section 5(f) of the Company's Restated Articles of Incorporation,
as amended ("Continuing Directors"), of the Company. The right to
indemnification conferred in this Section shall be a contract
right and shall include the right to be paid by the Company the
expenses incurred in defending or prosecuting any such proceeding
in advance of its final disposition; provided, however, that, if
the Kansas General Corporation Code requires, the payment of such
expenses incurred by a director or officer in such person's
capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such person while a
director or officer) in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Company of an
undertaking, by or on behalf of such director or officer, to
repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be
indemnified under this Article V or otherwise.
SECTION 2. If a claim under Section 1 of this Article V is
not paid in full by the Company within thirty days after a
written claim has been received by the Company, except in the
case of a claim for expenses incurred in defending a proceeding
in advance of its final disposition in which case the applicable
period shall be ten days, the claimant may at any time thereafter
bring suit against the Company 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 expense of prosecuting such
claim. The claimant shall be presumed to be entitled to
indemnification under this Article V upon submission of a written
claim (and, in an action brought to enforce a claim for an
advancement of expenses, where any required undertaking has been
tendered to the Company), and thereafter the Company shall have
the burden of proof to overcome the presumption that the claimant
is not so entitled. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required,
has been tendered to the Company) that the claimant has not met
the standards of conduct which make it permissible under the
Kansas General Corporation Code for the Company to indemnify the
claimant for the amount claimed, but the burden of proving such
defense shall be on the Company. Neither the failure of the
Company (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior
to the commencement of such action that indemnification of the
claimant is proper in the circumstances because such person has
met the applicable standard of conduct set forth in the Kansas
General Corporation Code, nor an actual determination by the
Company (including its Board of Directors, independent legal
counsel, or its stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action
or create a presumption that the claimant has not met the
applicable standard of conduct.
SECTION 3. The right to indemnification and the payment of
expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Article V shall not be
exclusive of any other right which any person may have or
hereafter acquired under any statute, provision of the Articles
of Incorporation or By-law, agreement, vote of stockholders or
disinterested directors or otherwise both as to action in such
person's official capacity and as to action in another capacity
while holding such office.
SECTION 4. The Company may enter into contracts in such form
as may be approved by the Board of Directors or one or more
officers designated by the Board with any director, officer,
employee or agent of the Company or any subsidiaries providing
indemnification to the full extent authorized or permitted by the
Kansas General Corporation Code and may create a trust fund,
grant a security interest and/or use other means (including,
without limitation, letters of credit, surety bonds and other
similar arrangements) to ensure the payment of such amounts as
may become necessary to effect indemnification pursuant to such
contracts or otherwise. The Company may purchase and maintain
insurance on behalf of any person who is or was a director,
officer, employee or agent of the Company, or is or was serving
at the request of the Company, as a director, officer, employee
or agent of another corporation, partnership, joint venture,
trust or other enterprise against any liability asserted against
such person and incurred by such person in any such capacity, or
arising out of such person's status as such, whether or not the
Company would have the power to indemnify such person against
such liability under the provisions of this Article V.
SECTION 5. The Company's indemnity of any person who was or
is serving at its request as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust
or other enterprise shall be reduced by any amounts such person
may collect as indemnification from such other corporation,
partnership, joint venture, trust or other enterprise.
SECTION 6. The Company may, by action of its Board of
Directors, authorize one or more officers to grant rights to
advancement of expenses to employees or agents of the Company on
such terms and conditions as such officer or officers deem
appropriate under the circumstances. The Company may, by action
of its Board of Directors, grant rights to indemnification and
advancement of expenses to employees or agents or groups of
employees or agents of the Company with the same scope and effect
as the provisions of this Article V with respect to the
indemnification and advancement of expenses of directors and
officers of the Company; provided, however, that an undertaking
shall be made by an employee or agent only if required by the
Board of Directors.
SECTION 7. Anything in this Article V to the contrary
notwithstanding, no elimination of this By-law, and no amendment
of this By-law adversely affecting the right of any person to
indemnification or advancement of expenses hereunder shall be
effective until the sixtieth day following notice to such
indemnified person of such action, and no elimination of or
amendment to this By-law shall deprive any such person of such
person's rights hereunder arising out of alleged or actual
occurrences, acts or failures to act which had their origin prior
to such sixtieth day.
SECTION 8. In case any provision in this Article V shall be
determined at any time to be unenforceable in any respect, the
other provisions shall not in any way be affected or impaired
thereby, and the affected provision shall be given the fullest
possible enforcement in the circumstances, it being the intention
of the Company to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent
permitted by law.
SECTION 9. For purposes of this Article V, references to
"other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on
a person with respect to any employee benefit plan; and
references to "serving at the request of the Company" shall
include any service as a director, officer, employee or agent of
the Company which imposes duties on, or involves services by,
such director, officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner "not opposed to the best interests of the
Company."
SECTION 10. The indemnification and advancement
of expenses provided by, or granted pursuant to, this Article V
shall, unless otherwise provided when authorized, continue as to
a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
SECTION 11. For purposes of this Article V, references to
"the Company" shall include any subsidiary of the Company and
shall also include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and
authority to indemnify its directors, officers and employees or
agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was
serving at the request of such constituent Company as a director,
officer, employee or agent of another Company, partnership, joint
venture, trust or other enterprise, shall stand in the same
position under this Article V with respect to the resulting or
surviving corporation as such person would have with respect to
such constituent corporation if its separate existence had
continued.
ARTICLE VI
CAPITAL STOCK
SECTION 1 - CERTIFICATES. Certificates for shares of the
capital stock of the Company shall be in such form not
inconsistent with the provisions of the General Corporation Code
of the State of Kansas, as the same is now constituted or as it
may be amended, or of the Articles of Incorporation of the
Company as shall be approved by the Board of Directors of the
Company, and shall contain the recitals required by said Code.
Such certificates shall be
(i) signed by, or in the name of the Company by the President
or a Vice President and either the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant
Secretary of the Company, and
(ii) sealed with the seal of the Company;
provided, however, that where any such certificate is signed by a
transfer agent or an assistant transfer agent, or by a transfer
clerk acting on behalf of the Company and a registrar, the
signature of such President, Vice President, Treasurer, Assistant
Treasurer, Secretary or Assistant Secretary and the seal of the
Company may be facsimile. In case any officer or officers of the
Company who shall have signed, or whose facsimile signature or
signatures shall have been used on, any such certificate or
certificates shall cease to be such officer or officers of the
Company, whether because of death, resignation or otherwise,
before such certificate or certificates shall have been delivered
by the Company, such certificate or certificates may nevertheless
be adopted by the Company and be issued and delivered as though
the person or persons who signed such certificate or certificates
or whose facsimile signature or signatures shall have been used
thereon had not ceased to be such officer or officers of the
Company. Such certificates shall evidence the fact that the
person named therein is the owner of the share or shares therein
described and certify the number of shares owned by him. Such
certificates shall be numbered; and the name of the person,
individual, firm, corporation or association owning the shares
represented by each such certificate, with the number of shares
and date of issue, shall be entered in the Company's books. All
certificates surrendered to the Company shall be canceled. No new
certificates to represent previously issued shares shall be
issued until a former certificate or certificates for the same
number of shares shall have been surrendered and canceled, except
as hereinafter in this Section provided. The Company may issue a
new certificate in the place of any certificate theretofore
issued by it, alleged to have been lost or destroyed; and the
directors of the Company may require, in their discretion, the
owner of the lost or destroyed certificate, or his legal
representatives, to give to the Company a bond sufficient to
indemnify the Company against any claim that may be made against
it on account of the alleged loss of any such certificate. A new
certificate may be issued without requiring any bond when in the
judgment of the directors it is proper to do so.
SECTION 2 - TRANSFER, GENERAL. Except as otherwise provided
in the General Corporation Code of Kansas, transfers of the
capital stock of the Company and the certificates of stock which
represent the stock shall be governed by Article 8 of the Uniform
Commercial Code.
SECTION 3 - RECORD HOLDINGS. The Company shall be entitled to
treat the owner or holder of record of any share or shares of
stock as the owner or holder in fact thereof and, accordingly,
shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other
person whether or not it shall have express or other notice
thereof save as expressly provided by the laws of the State of
Kansas.
SECTION 4 - CLOSING TRANSFER BOOKS AND RECORD DATES, GENERAL.
The Board of Directors of the Company shall have power to close
the stock transfer books of the Company for a period not
exceeding sixty (60) nor less than ten (10) days preceding the
date of:
A. any meeting of stockholders, or
B. any payment of any dividends, or
C. any allotment of rights, or
D. any effective date of change or conversion or exchange of
capital stock;
provided, however, that in lieu of closing the stock transfer
books as aforesaid, the Board of Directors of the Company may fix
in advance a date, not exceeding sixty (60) nor less than ten
(10) days preceding the effective date of any of the above-
enumerated transactions, and in such case such stockholders and
only such stockholders as shall be stockholders of record on the
date so fixed shall be entitled to receive notice of any such
transactions, or to participate in any such transactions,
notwithstanding any transfer of any stock on the books of the
Company after such record date fixed as aforesaid.
SECTION 5 - RECORD DATES, DIVIDENDS AND MEETINGS. Unless and
until the Board of Directors of the Company shall have otherwise
provided by resolution, the stock transfer books of the Company
shall not be closed for any period for or preceding the payment
of dividends or for, preceding or in connection with, any meeting
of stockholders.
SECTION 6 - EXCHANGES OF CERTIFICATES. While the transfer
books are closed, no transfer of shares of the capital stock of
the Company shall be made; but this shall not prevent the
issuance on the application of any stockholder of certificates of
smaller denominations in lieu of certificates of larger
denominations, or vice versa, provided the amount of shares
standing in such stockholder's name shall not thereby be
increased or diminished.
SECTION 7 - RULES AND REGULATIONS. The Board of Directors may
at any time adopt such additional and further rules and
regulations (not inconsistent with law, the Articles of
Incorporation of the Company or these By-laws) relating to the
issuance, transfer and safety of stock certificates as it may
deem advisable.
SECTION 8 - INSPECTION OF BOOKS AND RECORDS. Any stockholder,
in person or by attorney or other agent, upon written demand
under oath stating the purpose thereof, shall have the right
during the usual hours for business to inspect for any proper
purpose the Company's By-laws, stock register, a list of its
stockholders, books of accounts, records of the proceedings of
the stockholders and directors, and the Company's other books and
records, and to make copies or extract therefrom. In every
instance where an attorney or other agent shall be the person who
seeks the right of inspection, the demand under oath shall be
accompanied by a power of attorney or such other writing which
authorizes the attorney or other agent to so act on the behalf of
the stockholder.
ARTICLE VII
MISCELLANEOUS
SECTION 1 - FISCAL YEAR. The fiscal year of the Company shall
begin on the first day of January in each year.
SECTION 2 - NEGOTIABLE INSTRUMENTS. Except as may be
otherwise from time to time prescribed or determined by, or
pursuant to authorization of, the Board of Directors of the
Company with respect to the payment of money out of agent's funds
of the Company or other similar funds of the Company maintained
on an imprest basis and limited in amount, all checks, notes,
drafts, bills, acceptances, warrants or orders for the payment of
money shall be signed and countersigned by such persons as the
Board of Directors or the Executive Committee of the Company may
designate from time to time for such purpose.
SECTION 3 - SEAL. The seal of the Company shall be in the
form of a circle and shall bear the name of the Company and of
the State in which it was incorporated, and the year of its incor
poration.
SECTION 4 - WAIVER OF NOTICE. Any notice required by the By-
laws or the Articles of Incorporation of the Company or by any
provision of law or otherwise of the time, date, place and
purpose of any meeting of stockholders of the Company or of its
Board of Directors may be dispensed with if every stockholder
entitled to vote at such meeting shall either attend in person or
be represented thereat by proxy, or if every director shall
attend in person, or if every absent stockholder entitled to vote
at such meeting or every absent director shall file in writing
with the records of the meeting, either before or after the
holding thereof, waiver of such notice.
ARTICLE VIII
EMERGENCIES - PROVISIONS GOVERNING
SECTION 1 - CALL OF SPECIAL BOARD MEETING. In the event of
warlike damage to the area in which the Company operates, any
officer of the Company who is able to reach the head office or
temporary head office of the Company, or communicate therewith,
shall call a special meeting of the Board of Directors (i) if in
his judgment there has been such loss of life or personal injury,
such damage to property or such disruption of transportation or
communications that the provisions of this Article should be put
into effect, and (ii) if no regular or special meeting of the
Board would otherwise take place before a meeting called by him
could be convened.
SECTION 2 - DECLARATION OF EMERGENCY, QUORUM. If, within
seventy-two (72) hours of the call of such a special meeting of
the Board of Directors of the Company, or of the date of a
regular meeting thereof, a majority of the whole Board of
Directors cannot be present as a result of a national disaster
due to enemy action, one-third (1/3) of the whole Board of
Directors shall constitute a quorum for the transaction of any
business of such meeting, and may declare an emergency; and for
any subsequent meeting of the Board of Directors convened during
such an emergency so declared, one-third (1/3) of the whole Board
of Directors likewise shall constitute a quorum for the
transaction of any business.
SECTION 3 - DURATION OF EMERGENCY. If, pursuant to the
authorization contained in Section 2 of this Article VIII, the
Board of Directors of the Company shall declare the existence of
an emergency, such emergency so declared shall be deemed to
continue until a meeting of the stockholders (whether special or
annual) can be convened; and the Board of Directors shall arrange
for the holding of a meeting of the stockholders as soon as, in
its judgment, it shall be practicable to do so.
SECTION 4 - FILLING VACANCIES. During such emergency so
declared, vacancies in the Board of Directors of the Company may
be filled in accordance with and pursuant to the authorization
contained in Section 3 of Article VI of the Articles of
Incorporation of the Company.
SECTION 5 - CHIEF EXECUTIVE OFFICER. If, at the meeting at
which the Board of Directors shall have declared the existence of
an emergency, the President of the Company shall not have
survived the disaster or shall have been disabled, or shall be
unable to communicate with any of the directors who shall be
present at said meeting, the Board shall appoint as chief
executive officer the highest ranking officer of the Company who
shall have survived, and shall not have been disabled and who
shall be able to communicate with a director present at said
meeting; and if the President shall not have survived the
disaster, the Board shall choose at such meeting the person whom
it shall have appointed the chief executive officer as President,
and elect him to the vacancy in the Board of Directors caused by
the death of the former President.
SECTION 6 - TREASURER, SECRETARY. If, at the meeting at which
the Board of Directors shall have declared the existence of an
emergency, either the Treasurer or the Secretary of the Company
shall not have survived the disaster or shall have been disabled
thereby or shall not be able to communicate with the chief
executive officer, the Board of Directors at such meeting shall
appoint as Secretary or Treasurer, as the case may be, a person
other than the chief executive officer who shall have survived
the disaster, and shall not have been disabled thereby, and who
is able to communicate with the chief executive officer.
SECTION 7 - TERM OF OFFICE. Any person appointed as an
officer pursuant to the provisions of this Article VIII shall
hold office for the duration of the emergency, and until his
successor shall be elected and qualified, unless sooner removed
by a majority of the directors present and acting at a meeting of
the Board of Directors at which a quorum (as defined in Section 2
of this Article VIII) shall be present.
SECTION 8 - AUTOMATIC TRANSFERS OF PRESIDENT'S DUTIES AND
POWERS. If, after forty-eight (48) hours after the date fixed for
the first meeting (whether regular or special) of the Board of
Directors which follows a national disaster due to enemy action,
less than three (3) members of the Board of Directors are able to
be present at the meeting, the duties and powers of the President
shall pass automatically (without action by the Board of
Directors) to the Chairman of the Board (provided he shall be an
officer), if the President shall not have survived the disaster,
or shall have been disabled, or shall not be able to communicate
with any person at the place where the meeting was to have been
held, or at the head office or temporary head office of the
Company. If there be no such Chairman, or such Chairman of the
Board also shall not have survived the disaster, or have been
disabled, or shall not be able to communicate with any person at
the place where the meeting was to have been held, or at the head
office or temporary head office of the Company, the duties and
powers of the President shall pass automatically (without action
by the Board of Directors) to the highest ranking officer or
executive of the Company who shall have survived the disaster,
shall not have been disabled and shall be able to communicate as
aforesaid. If the President shall have survived the disaster, but
shall have been disabled or shall be unable to communicate as
aforesaid, he shall recover automatically his duties and powers
as soon as he shall cease to be disabled or unable to so
communicate. Likewise, if any other surviving officer or
executive who shall be senior to the officer or executive to whom
shall have passed automatically the duties and powers of the
President, shall cease to be disabled or shall cease to be unable
to communicate, the duties and powers of the President shall pass
automatically to him, so that such duties and powers shall always
belong to the highest ranking surviving officer or executive who
is not disabled and is able to communicate as aforesaid. No
officer or executive other than the President shall retain, by
virtue of this Section 8, the duties and powers of the President
after three or more directors of the Company shall be present at
a meeting of the Board of Directors.
SECTION 9 - RANK OF OFFICERS. For the purpose of Sections 5
and 8 of this Article VIII, the order of rank of the officers and
executives of the Company shall be as determined from time to
time by resolution of the Board of Directors.
SECTION 10 - LIABILITY. No director, officer, or executive
acting in accordance with the provisions of this Article VIII
shall be liable except for fraud.
SECTION 11 - CONFLICT OF PROVISIONS. In the event of any
conflict between the provisions of the other Articles of these By-
laws and this Article VIII, the provisions of this Article VIII
shall prevail and govern.