Exhibit 3.3
AMENDED AND RESTATED
BYLAWS
OF
H & R BLOCK, INC.
(As amended through June 9, 2004)
OFFICES
1. OFFICES. The corporation shall maintain a registered office in the
State of Missouri, and shall have a resident agent in charge thereof. The
location of the registered office and name of the resident agent shall be
designated in the Articles of Incorporation, or by resolution of the board of
directors, on file in the appropriate offices of the State of Missouri. The
corporation may maintain offices at such other places within or without the
State of Missouri as the board of directors shall designate.
SEAL
2. SEAL. The corporation shall have a corporate seal inscribed with the
name of the corporation and the words "Corporate Seal - Missouri". The form of
the seal may be altered at pleasure and shall be used by causing it or a
facsimile thereof to be impressed, affixed, reproduced or otherwise used.
SHAREHOLDERS' MEETINGS
3. PLACE OF MEETINGS. All meetings of the shareholders shall be held at
the principal office of the corporation in Missouri, except such meetings as the
board of directors (to the extent permissible by law) expressly determines shall
be held elsewhere, in which case such meetings may be held at such other place
or places, within or without the State of Missouri, as the board of directors
shall have determined.
4. ANNUAL MEETING. (a) Date And Time. The annual meeting of shareholders
shall be held on the first Wednesday in September of each year, if not a legal
holiday, and if a legal holiday, then on the first business day following, at
9:00 a.m., or on such other date as the board of directors may specify, when
directors shall be elected and such other business transacted as may be properly
brought before the meeting.
(b) Business Conducted. At an annual meeting of shareholders, only such
business shall be conducted as shall have been properly brought before the
meeting. To be properly brought before an annual meeting, business must be (i)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the board, (ii) otherwise properly brought before the meeting
by or at the direction of the board, or (iii) otherwise properly brought before
the meeting by a shareholder who was a shareholder of record both at the time of
giving of notice provided for in this section 4(b) and at the time of the
meeting, who is entitled to vote at the meeting and who has complied with the
notice and other requirements of this section 4(b).
For business to be properly brought before an annual meeting by a
shareholder, the shareholder must have given timely notice of the business in
writing to the secretary of the corporation and such business must be a proper
subject for action by the corporation's shareholders under applicable law.
To be timely, a shareholder's notice must be received by the secretary at
the principal executive offices of the corporation at least 45 days before the
date in the year of the annual meeting corresponding to the date on which the
corporation first mailed its proxy statements for the prior year's annual
meeting of shareholders. Such notice shall set forth as to each matter the
shareholder proposes to bring before the meeting
(i) a brief description of the business desired to be brought before the
annual meeting;
(ii) the text of the proposal or business (including any proposed resolutions)
and, if such business includes (to the extent, if any, permitted) a
proposal to amend the Articles of Incorporation or the Bylaws, the
language of the proposed amendment;
(iii) the reasons for conducting such business at the annual meeting;
(iv) any material interest of such shareholder (and of the beneficial owner, if
any, on whose behalf the proposal is made) in such business; and
(v) as to the shareholder giving the notice and the beneficial owner, if any,
on whose behalf the proposal is made (A) the name and address of the
shareholder and beneficial owner, as they appear on the corporation's
books, (B) the class and number of shares of stock of the corporation that
are owned beneficially and of record by such shareholder and beneficial
owner, (C) any other information with respect to such matter as would have
been required to be included in a proxy statement filed pursuant to
Regulation 14A under the Exchange Act then in effect, had proxies been
solicited by the board of directors with respect thereto, (D) whether the
shareholder or beneficial owner, if any, intends, or is part of a group
that intends to deliver a proxy statement and/or form of proxy to holders
of at least the percentage of the corporation's outstanding capital stock
required to approve or adopt the proposal or otherwise solicit proxies
from shareholders in support of such proposal, and (E) a representation
that the shareholder (or a qualified representative of the shareholder)
intends to appear in person at the meeting to propose such business.
Only such business shall be conducted at the annual meeting as has been
brought before the meeting in accordance with the procedures set forth in this
section 4(b). The chairman of an annual meeting shall determine whether any
proposal to bring business before the meeting was made in accordance with the
provisions of this section 4(b) and is a proper subject for shareholder action
pursuant to this section 4(b) and applicable law, and if proposed business is
not in compliance with this section 4(b) or not a proper subject for shareholder
action, to declare that such defective proposal be disregarded and not
transacted. The chairman of the annual meeting shall have sole authority to
decide questions of compliance with the foregoing procedures, and his or her
ruling shall be final. This provision shall not prevent the consideration and
approval or disapproval at the meeting of reports of officers, directors and
committees of the Board of Directors; provided that no new business shall be
acted upon at the meeting in connection with such reports unless stated,
submitted and received as herein provided.
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Notwithstanding anything to the contrary in this section 4(b), (i) if the
shareholder (or a qualified representative of the shareholder) does not appear
at the meeting of shareholders to propose such business, such business shall not
be transacted (notwithstanding that proxies in respect of such vote may have
been received by the corporation), and (ii) a shareholder shall also comply with
state law and the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this section 4(b). Nothing in this section
4(b) shall be deemed to affect any rights of shareholders to request inclusion
of proposals in, or the corporation's right to omit proposals from, the
corporation's proxy statement and form of proxy pursuant to Rule 14a-8 under the
Exchange Act or any successor provision. The provisions of this Section 4(b)
shall also govern what constitutes timely notice for purposes of Rule 14a4(c)
(and any successor provision) under the Exchange Act.
5. SPECIAL MEETINGS. Special meetings of the shareholders may be called at
any time by the chairman of the board, by the chief executive officer or by the
president, or at any time upon the written request of a majority of the board of
directors, or upon the written request of the holders of not less than 80% of
the stock of the corporation entitled to vote in an election of directors. Each
call for a special meeting of the shareholders shall state the time, the day,
the place and the purpose or purposes of such meeting and shall be in writing,
signed by the persons making the same and delivered to the secretary. No
business shall be transacted at a special meeting other than such as is included
in the purposes stated in the call.
6. CONDUCT OF ANNUAL AND SPECIAL MEETINGS. The chairman of the board, or
in his absence the chief executive officer or the president, shall preside as
the chairman of the meeting at all meetings of the shareholders. The chairman of
the meeting shall be vested with the power and authority to (i) maintain control
of and conduct an orderly meeting; (ii) exclude any shareholder from the meeting
for failing or refusing to comply with any of the procedural standards or rules
or conduct or any reasonable request of the chairman; and (iii) appoint
inspectors of elections, prescribing their duties, and administer any oath that
may be required under Missouri law. The ruling of the presiding officer on any
matter shall be final and exclusive. The presiding officer shall establish the
order of business and such rules and procedures for conducting the meeting as in
his or her sole and complete discretion he or she determines necessary,
appropriate or convenient under the circumstances, including (without
limitation) (i) an agenda or order of business for the meeting, (ii) rules and
procedures for maintaining order at the meeting and the safety of those present,
(iii) limitations on participation in such meeting to shareholders of record of
the corporation and their duly authorized and constituted proxies and such other
persons as the presiding officer shall permit, (iv) restrictions on entry to the
meeting after the time fixed for commencement thereof, (v) limitations on the
time allotted to questions or comments by participants and (vi) regulation of
the voting or balloting as applicable, including (without limitation) matters
that are to be voted on by ballot, if any. Unless and to the extent determined
by the Board of Directors or the presiding officer, meetings of shareholders
shall not be required to be held in accordance with rules of parliamentary
procedure.
7. NOTICES. Written or printed notice of each meeting of the shareholders,
whether annual or special, stating the place, date and time thereof and in case
of a special meeting, the purpose or purposes thereof shall be delivered or
mailed to each shareholder entitled to vote thereat, not less than ten nor more
than seventy days prior to the meeting, unless, as to a particular matter, other
or further notice is required by law, in which case such other or
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further notice shall be given. Any notice of a shareholders' meeting sent by
mail shall be deemed to be delivered when deposited in the United States mail
with postage prepaid thereon, addressed to the shareholder at his address as it
appears on the books of the corporation.
8. WAIVER OF NOTICE. Whenever any notice is required to be given under the
provisions of these bylaws, the Articles of Incorporation of the corporation, or
of any law, a waiver thereof, if not expressly prohibited by law, in writing
signed by the person or persons entitled to such notice, shall be deemed the
equivalent to the giving of such notice.
9. QUORUM. Except as otherwise may be provided by law, by the Articles of
Incorporation of the corporation or by these bylaws, the holders of a majority
of the shares issued and outstanding and entitled to vote thereat, present in
person or by proxy, shall be required for and shall constitute a quorum at all
meetings of the shareholders for the transaction of business. Every decision of
a majority in amount of shares of such quorum shall be valid as a corporate act,
except in those specific instances in which a larger vote is required by law or
by the Articles of Incorporation. If a quorum be not present at any meeting, the
shareholders entitled to vote thereat, present in person or by proxy, shall have
power to adjourn the meeting to a specified date not longer than 90 days after
such adjournment without notice other than announcement at the meeting, until
the requisite amount of voting shares shall be present. At such adjourned
meeting at which the requisite amount of voting shares shall be represented any
business may be transacted which might have been transacted at the meeting as
originally notified.
10. PROXIES. At any meeting of the shareholders, every shareholder having
the right to vote shall be entitled to vote in person or by proxy appointed by
an instrument in writing subscribed by such shareholder and bearing a date not
more than eleven months prior to said meeting unless said instrument provides
that it shall be valid for a longer period.
11. VOTING. Each shareholder shall have one vote for each share of stock
having voting power registered in his name on the books of the corporation and
except where the transfer books of the corporation shall have been closed or a
date shall have been fixed as a record date for the determination of its
shareholders 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 corporation
within fifty days preceding such election of directors.
Shareholders shall have no right to vote cumulatively for the election of
directors.
A shareholder holding stock in a fiduciary capacity shall be entitled to
vote the shares so held, and a shareholder whose stock is pledged shall be
entitled to vote unless, in the transfer by the pledgor on the books of the
corporation, he shall have expressly empowered the pledgee to vote thereon, in
which case only the pledgee or his proxy may represent said stock and vote
thereon.
12. SHAREHOLDERS' LISTS. A complete list of the shareholders entitled to
vote at every election of directors, arranged in alphabetical order, with the
address of and the number of voting shares held by each shareholder, shall be
prepared by the officer having charge of the stock books of the corporation and
for at least ten days prior to the date of the election shall be open at the
place where the election is to beheld, during the usual hours for business, to
the examination of any shareholder and shall be produced and kept open at the
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place of the election during the whole time thereof to the inspection of any
shareholder present. The original or duplicate stock ledger shall be the only
evidence as to who are shareholders entitled to examine such lists, or the books
of the corporation, or to vote in person or by proxy, at such election. Failure
to comply with the foregoing shall not affect the validity of any action taken
at any such meeting.
13. RECORDS. The corporation shall maintain such books and records as
shall be dictated by good business practice and by law. The books and records of
the corporation may be kept at any one or more offices of the corporation within
or without the State of Missouri, except that the original or duplicate stock
ledger containing the names and addresses of the shareholders, and the number of
shares held by them, shall be kept at the registered office of the corporation
in Missouri. Every shareholder shall have a right to examine, in person, or by
agent or attorney, at any reasonable time, for any reasonable purpose, the
bylaws, stock register, books of account, and records of the proceedings of the
shareholders and directors, and to make copies of or extracts from them.
DIRECTORS
14. NUMBER AND POWERS OF THE BOARD. The property and business of this
corporation shall be managed by a board of directors, and the number of
directors to constitute the board shall be not less than nine nor more than
fifteen, the exact number to be fixed by a resolution adopted by the affirmative
vote of a majority of the whole board of directors, but shall be twelve until
and unless so fixed. Directors need not be shareholders. In addition to the
powers and authorities by these bylaws expressly conferred upon the board of
directors, the board may exercise all such powers of the corporation and do or
cause to be done all such lawful acts and things as are not prohibited, or
required to be exercised or done by the shareholders only.
15. INCUMBENCY OF DIRECTORS. (a) Election And Term Of Office. The
directors of the corporation shall be divided into three classes: Class I, Class
II and Class III. Membership in such classes shall be as nearly equal as
possible and any increase or decrease in the number of directors shall be
apportioned by the board of directors among the classes to maintain the number
of directors in each class as nearly equal as possible. At each annual meeting
of shareholders, directors shall be elected to succeed those whose terms then
expire and to fill any vacancies and newly created directorships not previously
filled by the board. Newly elected directors shall belong to the same class as
the directors they succeed or, with respect to newly created directorships, to
the respective classes to which such directorships are assigned by the board of
directors. The term of office of each director shall begin immediately after his
election and, except as set forth in the Articles of Incorporation as to the
terms of office of the initial directors in each class, the directors in each
class shall hold office until the third succeeding annual meeting of
shareholders after the regular election of directors of that class or until
their successors are elected and qualified and subject to prior death,
resignation, retirement or removal from office of a director. No decrease in the
number of directors constituting the board of directors shall reduce the term of
any incumbent director.
(b) Removal. The entire board of directors of the corporation may be
removed at any time but only by the affirmative vote of the holders of 80% or
more of the outstanding shares of each class of stock of the corporation
entitled to elect one or more directors at a meeting of the shareholders called
for such purpose.
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16. VACANCIES. Any newly created directorship resulting from an increase
in the number of directors, and any vacancy occurring on the board of directors
through death, resignation, disqualification, disability or any other cause, may
be filled by vote of a majority of the surviving or remaining directors then in
office, although less than a quorum, or by a sole remaining director. Any
director so elected to fill a vacancy shall hold office for the unexpired
portion of the term of the director whose place shall be vacated and until the
election and qualification of his successor.
17. MEETINGS OF THE NEWLY ELECTED BOARD OF DIRECTORS - NOTICE. The first
meeting of each newly elected board, which shall be deemed the annual meeting of
the board, shall be held on the same day as the annual meeting of shareholders,
as soon thereafter as practicable, at such time and place, either within or
without the State of Missouri, as shall be designated by the president. No
notice of such meeting shall be necessary to the continuing or newly elected
directors in order legally to constitute the meeting, provided that a majority
of the whole board shall be present; or the members of the board may meet at
such place and time as shall be fixed by the consent in writing of all of the
directors.
18. NOTICE. (a) Regular Meetings. Regular meetings of the board of
directors may be held without notice at such place or places, within or without
the State of Missouri, and at such time or times, as the board of directors may
from time to time fix by resolution adopted by the whole board. Any business may
be transacted at a regular meeting.
(b) Special Meetings. Special meetings of the board of directors may be
called by the chairman, the chief executive officer, the president or any two
directors. Notice thereof stating the place, date and hour of the meeting shall
be given to each director either by mail not less than 48 hours before the date
of the meeting, by telephone or telegram on 24 hours' notice, or on such shorter
notice as the person or persons calling such meeting may deem necessary or
appropriate in the circumstances. The place may be within or without the State
of Missouri as designated in the notice. The "call" and the "notice" of any such
meeting shall be deemed synonymous.
19. QUORUM. At all meetings of the board of directors a majority of the
whole board shall, unless a greater number as to any particular matter is
required by statute, by the Articles of Incorporation or by these bylaws,
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. Less than a quorum may adjourn the meeting
successively until a quorum is present, and no notice of adjournment shall be
required.
The foregoing provisions relating to a quorum for the transaction of
business shall not be affected by the fact that one or more of the directors
have or may have interests in any matter to come before a meeting of the board,
which interests are or might be adverse to the interests of this corporation.
Any such interested director or directors shall at all times be considered as
present for the purpose of determining whether or not a quorum exists, provided
such director or directors are in attendance and do not waive the right to vote.
20. NOMINATIONS FOR ELECTION AS DIRECTORS. Only persons who are nominated
in accordance with the following procedures shall be eligible for election as
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directors. Nominations of persons for election to the board of directors may be
made at a meeting of shareholders (i) by or at the direction of the board of
directors by any nominating committee or person appointed by the board or (ii)
by any shareholder of the corporation entitled to vote for the election of
directors at the meeting who complies with the notice procedures set forth in
this section 20. Such nominations, other than those made by or at the direction
of the board, shall be made pursuant to timely notice in writing to the
secretary.
To be timely, a shareholder's notice shall be delivered to or mailed and
received at the principal executive offices of the corporation not less than 45
days before the date in the year of the annual meeting corresponding to the date
on which the corporation first mailed its proxy materials for the prior year's
annual meeting of shareholders. Such shareholder's notice to the secretary shall
set forth (a) as to each person whom the shareholder proposes to nominate for
election or reelection as a director, such person's name, age, business address,
residence address, and principal occupation or employment, the class and number
of shares of capital stock of the corporation that are beneficially owned by
such person, and any other information relating to such person that is required
to be disclosed in solicitations for proxies for election of directors pursuant
to Regulation 14A under the Securities Exchange Act of 1934, as amended; and (b)
as to the shareholder giving the notice, such shareholder's name and record
address and the class and number of shares of capital stock of the corporation
that are beneficially owned by such shareholder. The corporation may require any
proposed nominee to furnish such other information as may reasonably be required
by the corporation to determine the eligibility of such proposed nominee to
serve as a director of the corporation. No person shall be eligible for election
as a director of the corporation unless nominated in accordance with the
procedures set forth herein.
The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
21. DIRECTORS' ACTION WITHOUT MEETING. If all the directors severally or
collectively consent in writing to any action to be taken by the directors, such
consents shall have the same force and effect as a unanimous vote of the
directors at a meeting duly held. The secretary shall file such consents with
the minutes of the meetings of the board of directors.
22. WAIVER. Any notice provided or required to be given to the directors
may be waived in writing by any of them, whether before, at, or after the time
stated therein. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting except where he attends for the express purpose
of objecting to the transaction of any business thereat because the meeting is
not lawfully called or convened.
23. INDEMNIFICATION OF DIRECTORS AND OFFICERS AND CONTRIBUTION. (a) Scope
of Indemnification. The corporation shall indemnify any director, and may
indemnify any officer, of the corporation who was or is a party or witness, or
is threatened to be made a party or witness, to any threatened, pending or
completed action, suit or proceeding (including, without limitation, an action,
suit or proceeding by or in the right of the corporation), whether civil,
criminal, administrative or investigative (including a grand jury proceeding),
by reason of the fact that the person is or was (i) a director or officer of the
corporation or (ii) serving at the request of the corporation, as a director,
officer, employee,
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agent, partner or trustee (or in any similar position) of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, to
the fullest extent authorized or permitted by the Missouri General and Business
Corporation Law and any other applicable law, as the same exists or may
hereinafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the corporation to provide broader
indemnification rights than said law permitted the corporation to provide prior
to such amendment), against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by the
person in connection with such action, suit or proceeding, or in connection with
any appeal thereof; provided, however, that, except as provided in section 23(b)
with respect to proceedings to enforce rights to indemnification, the
corporation shall indemnify any person in connection with an action, suit or
proceeding (or part thereof) initiated by such person only if the initiation of
such action, suit or proceeding (or part thereof) was authorized by the board of
directors. Any right to indemnification hereunder shall include the right to
payment by the corporation of expenses incurred in connection with any such
action, suit or proceeding in advance of its final disposition; provided,
however, that any payment of such expenses incurred by a director or officer in
advance of the final disposition of such action, suit or proceeding shall be
made only upon delivery to the corporation of an undertaking, by or on behalf of
such director or officer, to repay all amounts so advanced unless it should be
determined ultimately that such director or officer is entitled to be
indemnified under this section or otherwise.
(b) Payment, Determination and Enforcement. Any indemnification or
advancement of expenses required under this section shall be made promptly. If a
determination by the corporation that a director is entitled to indemnification
is required, and the corporation fails to make such determination within ninety
days after final determination of an action, suit or proceeding, the corporation
shall be deemed to have approved such request. If with respect to director
indemnification the corporation denies indemnification or a written request for
advancement of expenses, in whole or in part, or if payment in full pursuant to
such determination or request is not made within thirty days, the right to
indemnification and advancement of expenses as granted by this section shall be
enforceable by the director in any court of competent jurisdiction. Such
director's costs and expenses incurred in connection with successfully
establishing the right to indemnification, in whole or in part, in any such
action or proceeding shall also be indemnified by the corporation. It shall be a
defense to any such action (other than an action brought to enforce a claim for
the advancement of expenses pursuant to this section where the required
undertaking has been received by the corporation) that the claimant has not met
the applicable standard of conduct set forth in Sections 351.355.1 or 351.355.2
of the Missouri General and Business Corporation Law, but the burden of proving
such defense shall be on the corporation. Neither the failure of the corporation
(including the board of directors, independent legal counsel or the
shareholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because the person has met the applicable standard of conduct set forth in the
Missouri General and Business Corporation Law, nor the fact that there has been
an actual determination by the corporation (including the board of directors,
independent legal counsel or the shareholders) 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.
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(c) Nonexclusivity, Duration and Indemnification Agreements. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this section shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled either under
the Articles of Incorporation or any other bylaw, agreement, vote of
shareholders or disinterested directors or otherwise, both as to action in the
person's official capacity and as to action in another capacity while holding
such office, and shall continue as to a person who has ceased to be a director
or officer, and shall inure to the benefit of the heirs, executors and
administrators of such person. Any repeal or modification of the provisions of
this section 23 shall not affect any obligations of the corporation or any
rights regarding indemnification and advancement of expenses of a director or
officer with respect to any threatened, pending or completed action, suit or
proceeding in which the alleged cause of action accrued at any time prior to
such repeal or modification. Upon approval of a majority of a quorum of
disinterested directors, the corporation may enter into indemnification
agreements with officers and directors of the corporation, or extend
indemnification to officers, employees or agents of the corporation, upon such
terms and conditions as may be deemed appropriate.
(d) Insurance. The corporation may purchase and maintain insurance, at its
expense, to protect itself and 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, agent, partner or trustee of
another corporation, partnership, joint venture, trust, employment benefit plan
or other enterprise against any liability asserted against the person and
incurred by the person in any such capacity, or arising out of his or her status
as such, whether or not the corporation would have the power to indemnify the
person against such liability under the provisions of this section, the Missouri
General and Business Corporation Law or otherwise.
(e) Severability. If this section or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
corporation shall nevertheless indemnify each director of the corporation as to
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including (without limitation) a
grand jury proceeding and an action, suit or proceeding by or in the right of
the corporation, to the fullest extent authorized or permitted by any applicable
portion of this section that shall not have been invalidated by the Missouri
General and Business Corporation Law or by any other applicable law.
(f) Contribution. In order to provide for just and equitable contribution
in circumstances in which the indemnification provided for in this section is
held by a court of competent jurisdiction to be unavailable in whole or part to
a director, the corporation shall contribute to the payment of the indemnitee's
losses that would have been so indemnified in an amount that is just and
equitable in the circumstances, taking into account, among other things,
contributions by other directors of the corporation pursuant to indemnification
agreements or otherwise. In the absence of personal enrichment of indemnitee, or
acts of intentional fraud or dishonest or criminal conduct on the part of
indemnitee, it would not be just and equitable for indemnitee to contribute to
the payment of losses arising out of an action, suit or proceeding in an amount
greater than: (i) in a case where indemnitee is a director of the corporation or
any of its subsidiaries but not an officer of either, the amount of fees paid to
indemnitee for serving as a director during the 12 months preceding the
commencement of such action, suit or proceeding, or (ii) in a case where
indemnitee is a
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director of the corporation or any of its subsidiaries and is an officer of
either, the amount set forth in clause (i) plus 5 percent of the aggregate cash
compensation paid to indemnitee for serving as such officer(s) during the 12
months preceding the commencement of such action, suit or proceeding. The
corporation shall contribute to the payment of losses covered hereby to the
extent not payable by the indemnitee pursuant to the contribution provisions set
forth in the preceding sentence.
24. INTERESTS OF DIRECTORS. In case the corporation enters into contracts
or transacts business with one or more of its directors, or with any firm of
which one or more of its directors are members or with any other corporation or
association of which one or more of its directors are members, shareholders,
directors or officers, such transaction or transactions shall not be invalidated
or in any way affected by the fact that such director or directors have or may
have interests therein which are or might be adverse to the interests of this
corporation; provided that such contract or transaction is entered into in good
faith and authorized or ratified on behalf of this corporation by the board of
directors or by a person or persons (other than the contracting person) having
authority to do so, and if the directors or other person or persons so
authorizing or ratifying shall then be aware of the interest of such contracting
person. In any case in which any transaction described in this section 24 is
under consideration by the board of directors, the board may, upon the
affirmative vote of a majority of the whole board, exclude from its presence
while its deliberations with respect to such transaction are in progress any
director deemed by such majority to have an interest in such transaction.
25. COMMITTEES. (a) Executive Committee. The board of directors may, by
resolution or resolutions passed by a majority of the whole board, designate an
executive committee, such committee to consist of two or more directors of the
corporation, which committee, to the extent provided in said resolution or
resolutions, shall have and may exercise all of the authority of the board of
directors in the management of the corporation. The executive committee shall
keep regular minutes of its proceedings and the same shall be recorded in the
minute book of the corporation. The secretary or an assistant secretary of the
corporation may act as secretary for the committee if the committee so requests.
(b) Audit Committee. The corporation shall maintain an audit committee
consisting of at least three directors. No member of the audit committee shall
be an employee of the corporation, and each member of the audit committee shall
be independent pursuant to standards promulgated by the Securities Exchange
Commission and the New York Stock Exchange. The audit committee shall be
responsible for assisting the board of directors regarding (i) the integrity of
the corporation's financial statements, (ii) the corporation's compliance with
legal and regulatory requirements, (iii) the independent auditor's
qualifications and independence and (iv) the performance of the corporation's
internal audit function and independent auditor. The audit committee shall have
sole responsibility for appointing, retaining, discharging or replacing the
corporation's independent auditor and, following completion of the independent
auditor's examination of the corporation's consolidated financial statements,
review with the independent auditor and corporation management, such matters in
connection with the audit as deemed necessary and desirable by the audit
committee. The audit committee shall have such additional duties,
responsibilities, functions and powers as may be delegated to it by the board of
directors of the corporation. The audit committee shall be empowered to retain,
at the expense of the corporation, independent expert(s) if it deems this to be
necessary.
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(c) Other Committees. The board of directors may also, by resolution or
resolutions passed by a majority of the whole board, designate other committees,
with such persons, powers and duties as it deems appropriate and as are not
inconsistent with law.
26. COMPENSATION OF DIRECTORS AND COMMITTEE MEMBERS. By resolution duly
adopted by a majority of the board of directors, directors and members shall be
entitled to receive reasonable annual compensation for services rendered to the
corporation as such, and a fixed sum and expenses of attendance, if any, may be
allowed for attendance at each regular or special meeting of the board or
committee; provided that nothing herein contained shall be construed to preclude
any director or committee member from serving the corporation in any other
capacity and receiving compensation therefor.
27. OFFICERS. (a) Elected Officers. The following officers of the
corporation shall be chosen or appointed by election by the board of directors,
and shall be deemed elected officers: a president, a secretary, and a treasurer;
also, if the board desires, a chairman of the board, a vice chairman of the
board, a chief executive officer, one or more vice presidents, one or more
assistant secretaries and one or more assistant treasurers. The chairman of the
board, the vice chairman of the board and the chief executive officer shall be
deemed executive officers of the corporation, and shall be vested with such
powers, duties, and authority as the board of directors may from time to time
determine and as may be set forth in these bylaws.
Any two or more of such offices may be held by the same person, except the
offices of chairman of the board and vice chairman of the board, president and
vice president, and the offices of president and secretary.
An elected officer shall be deemed qualified when he enters upon the
duties of the office to which he has been elected and furnishes any bond
required by the board; but the board may also require of such person his written
acceptance and promise faithfully to discharge the duties of such office.
(b) Election Of Officers. The board of directors at each annual meeting
thereof shall elect a president from among their own number. They shall also
elect at such time a secretary and a treasurer, who need not be directors. The
board then, or from time to time, may elect a chairman of the board, a vice
chairman of the board, a chief executive officer and such vice presidents,
assistant secretaries and assistant treasurers as it may deem advisable or
necessary.
(c) Term Of Office. Each elected officer of the corporation shall hold his
office for the term for which he was elected, or until he resigns or is removed
by the board, whichever first occurs.
(d) Appointment Of Officers And Agents - Terms of Office. The board from
time to time may also appoint such other officers and agents for the corporation
as it shall deem necessary or advisable. All appointed officers and agents shall
hold their respective positions at the pleasure of the board or for such terms
as the board may specify, and they shall exercise such powers and perform such
duties as shall be determined from time to time by the board, or by an elected
officer empowered by the board to make such determinations.
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28. REMOVAL. Any officer or agent elected or appointed by the board of
directors, and any employee, may be removed or discharged by the board whenever
in its judgment the best interests of the corporation would be served thereby,
but such removal shall be without a prejudice to the contract rights, if any, of
the person so removed.
29. SALARIES AND COMPENSATION. Salaries and compensation of all elected
officers of the corporation shall be fixed, increased or decreased by the board
of directors, but this power, except as to the salary or compensation of the
chairman of the board, the vice chairman of the board, the chief executive
officer and the president, may, unless prohibited by law, be delegated by the
board to the chairman of the board, the vice chairman of the board, the chief
executive officer, the president or a committee. Salaries and compensation of
all other appointed officers, agents, and employees of the corporation may be
fixed, increased or decreased by the board of directors, but until action is
taken with respect thereto by the board of directors, the same may be fixed,
increased or decreased by the chairman of the board, by the chief executive
officer, by the president or by such other officer or officers as may be
empowered by the board of directors to do so.
30. DELEGATION OF AUTHORITY TO HIRE, DISCHARGE, ETC. The board from time
to time may delegate to the chairman of the board, the vice chairman of the
board, the chief executive officer, the president or other officer or executive
employee of the corporation, authority to hire, discharge, and fix and modify
the duties, salary or other compensation of employees of the corporation under
their jurisdiction, and the board may delegate to such officer or executive
employee similar authority with respect to obtaining and retaining for the
corporation the services of attorneys, accountants and other experts.
31. THE CHAIRMAN OF THE BOARD, THE VICE CHAIRMAN OF THE BOARD, THE CHIEF
EXECUTIVE OFFICER AND THE PRESIDENT. The chairman of the board or the president
shall be elected by the board of directors to be the chief executive officer of
the corporation, or the board of directors may elect a chief executive officer
who is not the chairman of the board or the president, and the chief executive
officer shall have general and active management of the business of the
corporation and shall carry into effect all directions and resolutions of the
board. The chairman of the board, the vice chairman of the board, the chief
executive officer and the president shall be vested with such powers, duties,
and authority as the board of directors may from time to time determine and as
may be set forth in these bylaws. Except as otherwise provided for in these
bylaws, the chairman of the board, or in his absence, the chief executive
officer or president, shall preside at all meetings of the shareholders of the
corporation and at all meetings of the board of directors.
The chairman of the board, vice chairman of the board, the chief executive
officer or president may execute all bonds, notes, debentures, mortgages, and
other contracts requiring a seal, under the seal of the corporation and may
cause the seal to be affixed thereto, and all other instruments for and in the
name of the corporation, except that if by law such instruments are required to
be executed only by the president, he shall execute them.
The chairman of the board, vice chairman of the board, chief executive
officer or president, when authorized so to do by the board, may execute powers
of attorney from, for, and in the name of the corporation, to such proper person
or persons as he may deem fit, in order that thereby the business of the
corporation may be furthered or action taken as may be deemed by him necessary
or advisable in furtherance of the interests of the corporation.
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The chairman of the board, vice chairman of the board, chief executive
officer or president, except as may be otherwise directed by the board, shall
attend meetings of shareholders of other corporations to represent this
corporation thereat and to vote or take action with respect to the shares of any
such corporation owned by this corporation in such manner as he shall deem to be
for the interests of the corporation or as may be directed by the board.
The chairman of the board, vice chairman of the board, chief executive
officer or president shall have such other or further duties and authority as
may be prescribed elsewhere in these bylaws or from time to time by the board of
directors.
32. VICE PRESIDENTS. The vice presidents in the order of their seniority
shall, in the absence, disability or inability to act of the chairman of the
board, the vice chairman of the board, the chief executive officer and the
president, perform the duties and exercise the powers of the chairman of the
board, the vice chairman of the board, the chief executive officer and the
president, and shall perform such other duties as the board of directors shall
from time to time prescribe.
33. THE SECRETARY AND ASSISTANT SECRETARIES. The secretary shall attend
all sessions of the board and except as otherwise provided for in these bylaws,
all meetings of the shareholders, and shall record or cause to be recorded all
votes taken and the minutes of all proceedings in a minute book of the
corporation to be kept for that purpose. He shall perform like duties for the
executive and other standing committees when requested by the board or such
committee to do so.
His shall be the principal responsibility to give, or cause to be given,
notice of all meetings of the shareholders and of the board of directors, but
this shall not lessen the authority of others to give such notice as is
authorized elsewhere in these bylaws.
He shall see that all books, records, lists and information, or
duplicates, required to be maintained at the registered or home office of the
corporation in Missouri, or elsewhere, are so maintained.
He shall keep in safe custody the seal of the corporation, and when duly
authorized to do so shall affix the same to any instrument requiring it, and
when so affixed, he shall attest the same by his signature.
He shall perform such other duties and have such other authority as may be
prescribed elsewhere in these bylaws or from time to time by the board of
directors, the chairman of the board or the president, under whose direct
supervision he shall be.
He shall have the general duties, powers and responsibilities of a
secretary of a corporation.
The assistant secretaries, in the order of their seniority, in the
absence, disability or inability to act of the secretary, shall perform the
duties and exercise the powers of the secretary, and shall perform such other
duties as the board may from time to time prescribe.
34. THE TREASURER AND ASSISTANT TREASURERS. The treasurer shall have the
responsibility for the safekeeping of the funds and securities of the
corporation, and shall
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keep or cause to be kept, full and accurate accounts of receipts and
disbursements in books belonging to the corporation. He shall keep, or cause to
be kept, all other books of account and accounting records of the corporation,
and shall deposit or cause to be deposited all monies 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.
He shall disburse, or permit to be disbursed, the funds of the corporation
as may be ordered, or authorized generally, by the board, and shall render to
the chief executive officers of the corporation and the directors whenever they
may require it, an account of all his transactions as treasurer and of those
under his jurisdiction, and of the financial condition of the corporation.
He shall perform such other duties and shall have such other
responsibility and authority as may be prescribed elsewhere in these bylaws or
from time to time by the board of directors.
He shall have the general duties, powers and responsibility of a treasurer
of a corporation, and shall be the chief financial and accounting officer of the
corporation.
The assistant treasurers in the order of their seniority shall, in the
absence, disability or inability to act of the treasurer, perform the duties and
exercise the powers of the treasurer, and shall perform such other duties as the
board of directors shall from time to time prescribe.
35. DUTIES OF OFFICERS MAY BE DELEGATED. If any officer of the corporation
be absent or unable to act, or for any other reason that the board may deem
sufficient, the board may delegate, for the time being, some or all of the
functions, duties, powers and responsibilities of any officer to any other
officer, or to any other agent or employee of the corporation or other
responsible person, provided a majority of the whole board concurs therein.
SHARES OF STOCK
36. CERTIFICATES OF STOCK. The certificates for shares of stock of the
corporation shall be numbered, shall be in such form as may be prescribed by the
board of directors in conformity with law, and shall be entered into the stock
books of the corporation as they are issued, and such entries shall show the
name and address of the person, firm, partnership, corporation or association to
whom each certificate is issued. Each certificate shall have printed, typed or
written thereon the name of the person, firm, partnership, corporation or
association to whom it is issued, and number of shares represented thereby and
shall be signed by the president or a vice president, and the treasurer or an
assistant treasurer or the secretary or an assistant secretary of the
corporation, and sealed with the seal of the corporation, which seal may be
facsimile, engraved or printed. If the corporation has a registrar, a transfer
agent, or a transfer clerk who actually signs such certificates, the signatures
of any of the other officers above mentioned may be facsimile, engraved or
printed. In case any such officer who has signed or whose facsimile signature
has been placed upon any such certificate shall have ceased to be such officer
before such certificate is issued, such certificate may nevertheless be issued
by the corporation with the same effect as if such officer were an officer at
the date of its issue.
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37. TRANSFERS OF SHARES - TRANSFER AGENT - REGISTRAR. Transfers of shares
of stock shall be made on the books of the corporation only by the person named
in the stock certificate or by his attorney lawfully constituted in writing, and
upon surrender of the certificate therefor. The stock record books and other
transfer records shall be in the possession of the secretary or of a transfer
agent or clerk of the corporation. The corporation by resolution of the board
may from time to time appoint a transfer agent and if desired a registrar, under
such arrangements and upon such terms and conditions as the board of directors
deems advisable; but until and unless the board appoints some other person,
firm, or corporation as its transfer agent (and upon the revocation of any such
appointment, thereafter until a new appointment is similarly made) the secretary
shall be the transfer agent or clerk of the corporation, without the necessity
of any formal action of the board of directors and the secretary shall perform
all of the duties thereof.
38. LOST CERTIFICATE. In the case of the loss or destruction of any
outstanding certificate for shares of stock of the corporation, the corporation
may issue a duplicate certificate (plainly marked "duplicate"), in its place,
provided the registered owner thereof or his legal representatives furnish due
proof of loss thereof by affidavit, and (if required by the board of directors,
in its discretion) furnish a bond in such amount and form and with such surety
as may be prescribed by the board. In addition, the board of directors may make
any other requirements which it deems advisable.
39. CLOSING OF TRANSFER BOOKS. The board of directors shall have power to
close the stock transfer books of the corporation for a period not exceeding
fifty days preceding the date of any meeting of the shareholders, or the date
for payment of any dividend, or the date for the allotment of rights, or any
effective date or 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 may fix in advance a date, not exceeding fifty days preceding
the effective date of any of the above enumerated transactions, as a record
date; and in either case such shareholders and only such shareholders as shall
be shareholders of record on the date of closing the transfer books, or on the
record date so fixed, shall be entitled to receive notice of any such
transaction or to participate in any such transactions notwithstanding any
transfer of any share on the books of the corporation after the date of closing
the transfer books or such record date so fixed.
GENERAL
40. DIVIDENDS. Dividends upon the shares of stock of the corporation,
subject to any applicable provisions of the Articles of Incorporation and of any
applicable laws or statutes may be declared by the board of directors at any
regular or special meeting. Dividends may be paid in cash, in property or in
shares of its stock and to the extent and in the manner provided by law out of
any available earned surplus or earnings of the corporation. Liquidating
dividends or dividends representing a distribution of paid-in surplus or a
return of capital shall be made only when and in the manner permitted by law.
41. CREATION OF RESERVES. Before the payment of any dividends, 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 their absolute
discretion, think proper as a reserve fund or funds, to meet contingencies, or
for equalizing dividends, or for repairing, or maintaining any property of the
corporation, or for such other purposes as the board of
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directors shall think conducive to the interests of the corporation, and the
board of directors may abolish any such reserve in the manner in which it was
created.
42. FIXING OF CAPITAL, TRANSFERS OF SURPLUS. Except as may be specifically
otherwise provided in the Articles of Incorporation, the board of directors is
expressly empowered to exercise all authority conferred upon it or the
corporation by any law or statute, and in conformity therewith, relative to:
(i) The determination of what part of the consideration received for
shares of the corporation shall be capital;
(ii) Increasing or reducing capital;
(iii) Transferring surplus to capital or capital to surplus;
(iv) Allocating capital to shares of a particular class of stock;
(v) The consideration to be received by the corporation for its shares;
and
(vi) All similar or related matters;
provided that any concurrent action or consent by or of the corporation and its
shareholders required to be taken or given pursuant to law, shall be duly taken
or given in connection therewith.
43. CHECKS, NOTES AND MORTGAGES. All checks, drafts, or other instruments
for the payment, disbursement, or transfer of monies or funds of the corporation
may be signed in its behalf by the treasurer of the corporation, unless
otherwise provided by the board of directors. All notes of the corporation and
any mortgages or other forms of security given to secure the payment of the same
may be signed by the president who may cause to be affixed the corporate seal
attested by the secretary or assistant secretary. The board of directors by
resolution adopted by a majority of the whole board from time to time may
authorize any officer or officers or other responsible person or persons to
execute any of the foregoing instruments for and in behalf of the corporation.
44. FISCAL YEAR. The board of directors may fix and from time to time
change the fiscal year of the corporation. In the absence of action by the board
of directors, the fiscal year shall end each year on the same date which the
officers of the corporation elect for the close of its first fiscal period.
45. TRANSACTIONS WITH RELATED PERSONS. The affirmative vote of not less
than 80% of the outstanding shares of the corporation entitled to vote in an
election of directors shall be required for the approval or authorization of any
business transaction with a related person as set forth in the Articles of
Incorporation in the manner provided therein.
46. DIRECTOR'S DUTIES; CONSIDERATION OF TENDER OFFERS. The board of
directors shall have broad discretion and authority in considering and
evaluating tender offers for the stock of this corporation. Directors shall not
be liable for breach of their fiduciary duty to the shareholders merely because
the board votes to accept an offer that is not the highest price per share,
provided, that the directors act in good faith in considering
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collateral nonprice factors and the impact on constituencies other than the
shareholders (i.e., effect on employees, corporate existence, corporate
creditors, the community, etc.) and do not act in willful disregard of their
duties to the shareholders or with a purpose, direct or indirect, to perpetuate
themselves in office as directors of the corporation.
47. AMENDMENT OF BYLAWS. (a) By Directors. The board of directors may
make, alter, amend, change, add to or repeal these bylaws, or any provision
thereof, at any time.
(b) By Shareholders. These bylaws may be amended, modified, altered, or
repealed by the shareholders, in whole or in part, only at the annual meeting of
shareholders or at the special meeting of shareholders called for such purpose,
only upon the affirmative vote of the holders of not less than 80% of the
outstanding shares of stock of this corporation entitled to vote generally in
the election of directors, provided that an affirmative vote of a majority of
the votes entitled to be cast shall be sufficient to approve any such amendment,
modification, alteration or repeal that has been adopted by a vote of 80% of the
members of the board of directors.
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