Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS
OF
ATCHISON CASTING CORPORATION
(a Kansas corporation)
AS OF MAY 17, 2000
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of Atchison
Casting Corporation (the "Corporation") shall be in the City of Atchison,
County of Atchison, State of Kansas.
Section 2. Other Offices. The Corporation may also have such other offices
both within and without the State of Kansas as the Board of Directors from time
to time may designate.
ARTICLE II
STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of the stockholders for the
election of directors, and for such other business as may be stated in the
notice of the meeting shall be held at such place, either within or without the
State of Kansas, and at such time and date as the Board of Directors, by
resolution shall determine and set forth in the notice of the meeting. If the
Board of Directors fails to so determine the time, date and place of meeting,
the annual meeting of stockholders shall be held at the Corporation's principal
office on the third Friday in November in each year, or if that day is a legal
holiday in the place where the meeting is to be held, then on the next
succeeding business day.
Section 2. Special Meetings. Special meetings of the stockholders may be
called by the President or by the Board of Directors and shall be called by the
President at the request in writing of a majority of the Board of Directors, or
at the request in writing of stockholders owning a majority of the capital stock
of the Corporation issued and outstanding and entitled to vote. Such request
shall state the purpose or purposes of the proposed meeting.
Section 3. Place of Meetings. Meetings of the stockholders shall be held
at such time and place, either within or without the State of Kansas, as shall
be designated from time to time by the Board of Directors and stated in the
notice of the meeting or in a duly executed waiver of notice thereof.
Section 4. Notice of Meetings. Written notice of every meeting of the
stockholders stating the place, date and hour of the meeting and, in the case of
a special meeting, the purpose or purposes for which the meeting is called shall
be given not less than ten nor more than sixty days before the date of the
meeting to each stockholder entitled to vote at such meeting.
Section 5. Quorum. Except as otherwise provided by law or by the Articles
of Incorporation, the holders of a majority of the capital stock issued and
outstanding and entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however, such quorum shall not
be present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented. At
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 noticed. If the adjournment is for more than thirty days, or if after
the adjournment a new record date is fixed for the adjourned meting, a notice of
the adjourned meeting shall be given to each stockholder entitled to vote at the
meeting.
Section 6. Voting. Except as otherwise required by law or by the Articles
of Incorporation, any matter brought before any meeting of stockholders shall be
decided by the vote of the holders of a majority of the stock represented and
entitled to vote thereat. Each stockholder represented at a meeting of
stockholders shall be entitled to cast one vote for each share of the capital
stock entitled to vote thereat held by such stockholder. Such votes may be cast
in person or by proxy but no proxy shall be voted on or after three years from
its date, unless such proxy provides for a longer period. The Board of
Directors, in its discretion, or the officer of the Corporation presiding at a
meeting of stockholders, in his discretion, may require that any votes cast at
such meeting shall be cast by written ballot.
Section 7. Conduct of Meetings. The Board of Directors of the Corporation
may adopt by resolution such rules or regulations for the conduct of meetings of
the stockholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations as adopted by the Board of Directors, the
Chairman of any meeting of stockholders shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such acts as, in
the judgment of such Chairman, are appropriate for the proper conduct of the
meeting. Such rules, regulations or procedures, whether adopted by the Board of
Directors or prescribed by the Chairman of the meeting, may include, without
limitation, the following: (1) the establishment of an agenda or order of
business for the meeting, (2) rules and procedures for maintaining order at the
meeting and the safety of those present, (3) limitations on attendance at or
participation in the meeting to stockholders of record of the Corporation, their
duly authorized and constituted proxies or such other persons as the Chairman
shall permit, (4) restrictions on entry to the meeting after the time fixed for
the commencement thereof and (5) limitations on the time allotted to questions
or comments by participants. Unless, and to the extent determined by the Board
of Directors or the Chairman of the meeting, meetings of the stockholders shall
not be required to be held in accordance with rules of parliamentary procedure.
Section 8. Advance Notification of Business to be Transacted at Annual
Meetings. No business may be transacted at an annual meeting of stockholders,
other than business that is either (a) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board of Directors
(or any duly authorized committee thereof), (b) otherwise properly brought
before the annual meeting by or at the direction of the Board of Directors (or
any duly authorized committee thereof), or (c) otherwise properly brought before
the annual meeting by any stockholder of the Corporation (i) who is a
stockholder of record on the date of the giving of the notice provided for in
this Section 8 and on the record date for the determination of stockholders
entitled to vote at such annual meeting, and (ii) who complies with the notice
procedures set forth in this Section.
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary of
the Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered to
or mailed and received at the principal executive offices of the Corporation not
less than sixty (60) days nor more than one
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hundred twenty (120) days prior to the date of the annual meeting; provided,
however, that in the event that less than seventy (70) days' notice or prior
public disclosure of the date of the annual meeting is given or made to
stockholders, notice by the stockholder in order to be timely must be received
not later than the close of business on the tenth day following the day on which
such notice of the date of the annual meeting was mailed or such public
disclosure of the date of the annual meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the Secretary must
set forth as to each matter such stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (ii) the name and record address of such stockholder, (iii) the class
or series and number of shares of capital stock of the Corporation which are
owned beneficially or of record by such stockholder, (iv) a description of all
arrangements or understandings between such stockholder and any other person or
persons (including their names) in connection with the proposal of such business
by such stockholder and any material interest of such stockholder in such
business, and (v) a representation that such stockholder intends to appear in
person or by proxy at the annual meeting to bring such business before the
meeting.
No business shall be conducted at the annual meeting of stockholders,
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 8; provided, however, that once business
has been properly brought before the annual meeting in accordance with such
procedures, nothing in this Section 8 shall be deemed to preclude discussion by
any stockholder of any such business. If the Chairman of an annual meeting
determines that business was not properly brought before the annual meeting in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
For purposes of these By-Laws, "public disclosure" shall mean disclosure
in a press release reported by the Dow Jones, Associated Press, Reuters or
comparable national news service, or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to Sections 13,
14 or 15(d) of the Securities Exchange Act of 1934, as amended.
ARTICLE III
DIRECTORS
Section 1. General Powers. Except as otherwise provided by law or by
the Articles of Incorporation, the business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors of the
Corporation.
Section 2. Number and Election. The Board of Directors of the Corporation
shall be divided into three classes, designated Class I, Class II and Class III,
which shall be as nearly equal in number as possible, as determined by the Board
of Directors. The term of office of the various classes of directors shall be as
set forth in the Articles of Incorporation. Except as provided in Section 5 of
this Article, directors shall be elected by a plurality of the votes cast at
annual meetings of stockholders, and each director so elected shall hold office
until his term of office expires and until his successor is duly elected and
qualified, or until his earlier resignation or removal. Directors need not be
stockholders of the Corporation.
Section 3. Resignations. Any director may resign at any time upon written
notice to the Corporation. Such resignation shall become effective at the time
or upon the happening of the condition, if any, specified therein or, if no such
time or condition is specified, upon its receipt.
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Section 4. Removal. Except as otherwise provided by law or by the Articles
of Incorporation, any director or the entire Board of Directors may be removed
from office only for cause, at any time by the holders of seventy-five percent
of the voting power of all of the shares of the Corporation entitled to vote for
the election of directors, voting together as a single class.
Section 5. Vacancies. Any vacancy occurring in the Board of Directors by
death, resignation, removal or otherwise, and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, though less than a quorum, or by
a sole remaining director, and the directors so chosen shall hold office for a
term expiring at the next annual meeting of stockholders at which the term of
the class or classes to which they have been elected expires and until their
successors are duly elected and qualified, or until their earlier resignation or
removal.
Section 6. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Kansas. Regular meetings of the Board of Directors may be held without notice at
such time and at such place as may from time to time be determined by the Board
of Directors. The first meeting of the Board of Directors following the annual
meeting of the stockholders shall be held without notice immediately after and
at the same place as the annual meeting of the stockholders. Special meetings of
the Board of Directors may be called by the President, Secretary or by any
director. Written notice thereof stating the place, date and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called shall be given by the Secretary or an Assistant
Secretary or by the person calling the meeting to each director not less than
forty-eight (48) hours before the date of the meeting.
Section 7. Quorum. Except as otherwise provided by law or by the Articles
of Incorporation, at any meeting of the Board of Directors, a majority of the
total number of directors shall constitute a quorum for the transaction of
business, and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors. If a quorum
shall not be present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present.
Section 8. Action Without a Meeting. Except as otherwise provided by the
Articles of Incorporation, 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 the 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 or proceedings of the Board of Directors or committee.
Section 9. Meeting by Means of Telecommunications. Except as otherwise
provided by the Articles of Incorporation, members of the Board of Directors, or
any committee designated by the Board of Directors, may participate in a meeting
of the Board of Directors or such committee by means of a conference telephone
or similar communications equipment by means of which all persons participating
in the meeting can hear each other, and participation in a meeting pursuant to
this Section 9 shall constitute presence in person at such meeting.
Section 10. Committees. The Board of Directors may, by resolution passed
by a majority of the total number of directors fixed in the manner provided by
these By-Laws, designate one or more committees, each committee to consist of
one or more directors of the Corporation. The Board of Directors may designate
one or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of any such committee. In the
absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the
absent or disqualified member, the member or members
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thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any absent or
disqualified member. Any committee, to the extent allowed by law and provided in
the resolution establishing such committee, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and
report to the Board of Directors when required.
Section 11. Compensation. As fixed by resolution passed by a majority of
the total number of directors, the directors may be paid their expenses, if any,
of attendance at each meeting of the Board of Directors and may be paid a fixed
sum for attendance at each meeting of the Board of Directors or a stated salary
as director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
Section 12. Nomination of Directors. Nominations of persons for election
to the Board of Directors may be made at any annual meeting of stockholders (a)
by or at the direction of the Board of Directors (or any duly authorized
committee thereof) or (b) by any stockholder of the Corporation (i) who is a
stockholder of record on the date of the giving of the notice provided for in
this Section and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (ii) who complies with the notice
procedures set forth in this Section. Persons nominated by a stockholder of the
Corporation shall only be eligible for election as directors of the Corporation
if such persons are nominated in accordance with the following procedures.
In addition to any other applicable requirements, for a nomination to be
made by a stockholder, such stockholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered to
or mailed and received at the principal executive offices of the Corporation not
less than sixty (60) days nor more than one hundred twenty (120) days prior to
the date of the annual meeting; provided, however, that in the event that less
than one hundred (100) days' notice or prior public disclosure of the date of
the annual meeting is given or made to stockholders, notice by the stockholder
in order to be timely must be so received not later than the close of business
on the tenth day following the day on which such notice of the date of the
annual meeting was mailed or such public disclosure of the date of the annual
meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the Secretary must
set forth (a) as to each person whom the stockholder proposes to nominate for
election as a director (i) the name, age, business address and residence address
of the person, (ii) the principal occupation or employment of the person, (iii)
the class or series and number of shares of capital stock of the Corporation
which are owned beneficially or of record by the person and (iv) any other
information relating to the person that would be required to be disclosed in a
proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (the "Exchange Act"); and (b) as to the stockholder
giving the notice (i) the name and record address of such stockholder, (ii) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by such stockholder, (iii) a description of
all arrangements or understandings between such stockholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in person or by proxy at
the annual meeting to nominate the persons named in its notice and (v) any other
information relating to such stockholder that would be required to be disclosed
in a proxy
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statement or other filings required to be made in connection with solicitations
of proxies for election of directors pursuant to Section 14 of the Exchange Act.
Such notice must be accompanied by a written consent of each proposed nominee to
be named as a nominee and to serve as a director if elected.
No person nominated by a stockholder of the Corporation shall be eligible
for election as a director of the Corporation unless nominated in accordance
with the procedures set forth in this Section 12. If the Chairman of the annual
meeting determines that a nomination was not made in accordance with the
foregoing procedures, the Chairman shall declare to the meeting that the
nomination was defective and such defective nomination shall be disregarded.
ARTICLE IV
OFFICERS
Section 1. Enumeration and Qualifications. The officers of the Corporation
shall be chosen by the Board of Directors and shall consist of a President, a
Secretary and a Treasurer. The Board of Directors, in its discretion, may from
time to time also choose a Chairman of the Board of Directors (who must be a
director) and one or more Vice-Presidents, Assistant Secretaries, Assistant
Treasurers and other officers. Except as otherwise provided by law or by the
Articles of Incorporation, the same person may hold at the same time any number
of offices. The officers of the Corporation need not be stockholders of the
Corporation and, except in the case of the Chairman of the Board of Directors,
need not be directors of the Corporation.
Section 2. Elections and Term. The Board of Directors at its first meeting
held after each annual meeting of the stockholders shall elect the officers of
the Corporation, who shall hold their offices for such terms and shall exercise
such powers and perform such duties as shall be determined from time to time by
the Board of Directors. All officers of the Corporation shall hold office until
their successors are chosen and qualified, or until their earlier resignation or
removal.
Section 3. Resignations. Any officer may resign at any time upon written
notice to the Corporation. Such resignation shall become effective at the time
or upon the happening of the condition, if any, specified therein or, if no such
time or condition is specified, upon its receipt.
Section 4. Removal. Except as otherwise provided by law, any officer
may be removed, with or without cause, at any time by vote of a majority of
the total number of directors.
Section 5. Vacancies. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise shall be filled by
the Board of Directors.
Section 6. Chairman of the Board of Directors. The Chairman of the Board
of Directors, if there be one, shall be the Chief Executive Officer of the
Corporation and, if present, shall preside at all meetings of the stockholders
and of the Board of Directors. Except where by law the signature of the
President is required, the Chairman of the Board of Directors shall possess the
same power as the President to sign all contracts, certificates and other
instruments of the Corporation which may be authorized by the Board of
Directors. During the absence or disability of the President, the Chairman of
the Board of Directors shall exercise all the powers and discharge all the
duties of the President. The Chairman of the Board of Directors shall also
perform such other duties and may exercise such other powers as from time to
time may be assigned to him by these By-Laws or by the Board of Directors.
Section 7. President. The President shall have, subject to the control of
the Board of Directors and the Chairman of the Board, if there be one, general
supervision of the business of the Corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect. The President
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shall execute all bonds, mortgages, contracts and other instruments of the
Corporation requiring a seal, under the seal of the Corporation, except where
required or permitted by law to be otherwise signed and executed and except that
the other officers of the Corporation may sign and execute documents when so
authorized by these By-Laws. If there be no Chairman of the Board of Directors,
the President shall be the Chief Executive Officer of the Corporation and shall
preside at all meetings of the stockholders and the Board of Directors.
Section 8. Vice Presidents. If there be no Chairman of the Board of
Directors, at the request of the President or in his absence or in the event of
his inability or refusal to act, the Vice President or Vice Presidents, as
designated by the Board of Directors, shall perform the duties of the President
and when so acting shall have all the powers of and be subject to all the
restrictions upon the President. If there be no Chairman of the Board of
Directors and no Vice President, the Board of Directors shall designate the
officer of the Corporation who, at the President's request, absence, or
inability or refusal to act, shall perform all the duties of the President. When
so acting, such officer shall have all the powers of and be subject to all the
restrictions upon the President.
Section 9. Secretary. The Secretary shall attend all meetings of the Board
of Directors and all meetings of the stockholders and shall record all the
proceedings thereat in a book or books to be kept for that purpose. The
Secretary shall also perform like duties for the standing committees when
required. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed
are properly kept or filed, as the case may be.
Section 10. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation. The Treasurer
shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may
be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President, the Chairman of the Board of
Directors if there be one, and to the Board of Directors either at its regular
meetings or when it so requires, an account of all his transactions as Treasurer
and of the financial condition of the Corporation.
Section 11. Assistant Secretaries. Assistant Secretaries, if there be any,
shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the Chairman of the Board of
Directors if there be one, the President, any Vice President if there be one, or
the Secretary. In the absence of the Secretary or in the event of his disability
or refusal to act, Assistant Secretaries shall perform the duties of the
Secretary and when so acting shall have all the powers of and be subject to all
the restrictions upon the Secretary.
Section 12. Assistant Treasurers. Assistant Treasurers, if there be any,
shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the Chairman of the Board of
Directors if there be one, the President, any Vice President if there be one, or
the Treasurer. In the absence of the Treasurer or in the event of his disability
or refusal to act, Assistant Treasurers shall perform the duties of the
Treasurer and when so acting shall have all the powers of and be subject to all
the restrictions upon the Treasurer.
Section 13. Other Duties and Powers. Each officer, in addition to the
duties and powers specifically set forth by these By-Laws, shall also perform
such other duties and may exercise such other powers as from time to time may be
assigned to him by these By-Laws or by the Board of Directors.
Section 14. Other Officers. Such other officers as the Board of Directors
may choose shall perform such duties and have such powers as from time to time
may be assigned to them by the Board of
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Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their
respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation
(i) by the Chairman of the Board of Directors, the President or a Vice-President
and (ii) by the Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary of the Corporation, certifying the number of shares owned by
him in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a
transfer agent other than the Corporation or its employee, or (ii) a registrar
other than the Corporation or its employee, any other signature on the
certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to advertise the same in such manner
as the Board of Directors shall require and/or to give the Corporation a bond in
such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in
the manner prescribed by law and in these By-Laws. Transfers of stock shall be
made on the books of the Corporation only by the person named in the certificate
or by his attorney lawfully constituted in writing and upon the surrender of the
certificate therefor, which shall be cancelled before a new certificate shall be
issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to express consent to corporate action in
writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty days nor less than ten days
before the date of such meeting, nor more than sixty days prior to any other
action. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and 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, except as otherwise provided by
law.
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ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Articles of Incorporation or these By-Laws to be given to any director, member
of a committee or stockholder, such notice may be given by mail, addressed to
such director, member of a committee or stockholder, at his address as it
appears on the records of the Corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Written notice may also be given personally
or by telegram, telex, cable or facsimile transmission.
Section 2. Waiver of Notice. Whenever any notice is required by law, the
Articles of Incorporation or these By-Laws to be given to any director, member
of a committee or stockholder, a waiver thereof in writing and signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Articles of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, and may be
paid in cash, in property, or in shares of the capital stock. Before payment of
any dividend, there may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for any proper purpose, and the Board of
Directors may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words
"Corporate Seal, Kansas". The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or otherwise reproduced.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings Other Than
Those by or in the Right of the Corporation. Subject to Section 3 of this
Article VIII, the Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation,
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and, with respect to any criminal action or, proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in
the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under
this Article VIII (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Such
determination shall be made (i) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a
director, officer, employee or agent of the Corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding described
above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith, without the necessity of authorization
in the specific case.
Section 4. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and
notwithstanding the absence of any determination thereunder, any director,
officer, employee or agent may apply to any court of competent jurisdiction in
the State of Kansas for indemnification to the extent otherwise permissible
under Sections 1 and 2 of this Article VIII. The basis of such indemnification
by a court shall be a determination by such court that indemnification of the
director, officer, employee, or agent is proper in the circumstances because he
has met the applicable standards of conduct set forth in Sections 1 or 2 of this
Article VIII, as the case may be. Notice of any application for indemnification
pursuant to this Section 5 shall be given to the Corporation promptly upon the
filing of such application.
Section 5. Expenses Payable in Advance. Expenses incurred in defending or
investigating a threatened or pending action, suit or proceeding may be paid by
the Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
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Section 6. Non-exclusivity of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by or granted pursuant
to this Article VIII shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
any By-Law, agreement, contract, vote of stockholders or disinterested directors
or pursuant to the direction (howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, it being the policy of the
Corporation that indemnification of the persons specified in Sections 1 and 2 of
this Article VIII shall be made to the fullest extent permitted by law. The
provisions of this Article VIII shall not be deemed to preclude the
indemnification of any person who is not specified in Sections 1 or 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify
under the provisions of the Kansas General Corporation Code or otherwise.
Section 7. Insurance. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee, or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power or the obligation to
indemnify him against such liability under the provisions of this Article VIII.
Section 8. Meaning of "Corporation" for Purposes of Article VIII. For
purposes of this Article VIII, references to "the Corporation" shall 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, 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 corporation
as a director, officer, employee, or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
the provisions of this Article VIII with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this section shall, unless otherwise provided when authorized or ratified,
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.
ARTICLE IX
AMENDMENTS
Section 1. These By-Laws may be amended or repealed, in whole or in part,
or new By-Laws may be adopted by the stockholders of the Corporation; provided,
however, that notice of such amendment, repeal or adoption of new By-Laws be
contained in the notice of such meeting of stockholders. All such amendments
must be approved by the holders of a majority of the outstanding capital stock
entitled to vote thereon. If authorized by the Articles of Incorporation, these
By-Laws may also be amended or repealed, in whole or in part, or new By-Laws may
be adopted, by the Board of Directors, except with respect to any provision
hereof which by law, the Articles of Incorporation or these By-Laws requires
action by the stockholders.
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