UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): | August 7, 2007 |
Hawthorn Bancshares, Inc.
__________________________________________
(Exact name of registrant as specified in its charter)
Missouri | 0-23636 | 431626350 |
_____________________
(State or other jurisdiction |
_____________
(Commission |
______________
(I.R.S. Employer |
of incorporation) | File Number) | Identification No.) |
300 Southwest Longview Blvd., Lee's Summit, Missouri | 64081 | |
_________________________________
(Address of principal executive offices) |
___________
(Zip Code) |
Registrants telephone number, including area code: | 573.761.6179 |
Not Applicable
______________________________________________
Former name or former address, if changed since last report
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 2.02 Results of Operations and Financial Condition.
On August 7, 2007, Hawthorn Bancshares, Inc. issued a press release announcing the financial results for the fiscal quarter ending June 30, 2007. A copy of the press release is attached as Exhibit 99.1.
The information contained in Item 2.02 of this Current Report and in Exhibit 99.1 of this Current Report is being furnished and shall not be deemed "filed" with the SEC for purposes of Section 18 of the Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that section.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
At our June 13, 2007 annual meeting, our company's shareholders approved an amendment to our Articles of Incorporation changing our company's name to "Hawthorn Bancshares, Inc." Our company filed articles of amendment with the office of the Missouri Secretary of State to effect this name change. A full description of the name change was provided in our Proxy Statement dated April 30, 2007 that was furnished to shareholders in anticipation of the annual meeting.
At a meeting of our company's board of directors held on August 8, 2007, our board approved an amendment and restatement of our Bylaws whose sole purpose and effect was to change all references to our company therein from "Exchange National Bancshares, Inc." to Hawthorn Bancshares, Inc." With the exception of the change in our company's name, no changes to our Bylaws were made. The amendment and restatement of our Bylaws became effective on August 8, 2007. The full text of our amended and restated Bylaws is furnished as exhibit 3.2 to this report on Form 8-K.
At our August 8, 2007 board meeting, our board of directors also approved a restatement of our company's Articles of Incorporation. The effect of this action was simply to cause our Articles of Incorporation, and all previous amendments to our Articles of Incorporation, to be joined together into a single document. No amendments to our existing Articles of Incorporation were approved by our board of directors at this board meeting. A restatement of our Articles of Incorporation is being filed with the office of the Missouri Secretary of State on August 9, 2007 to effect this name change. The restatement is effective immediately upon filing. The full text of our restated Articles of Incorporation is furnished as exhibit 3.1 to this report on Form 8-K.
Item 8.01 Other Events.
On August 9, 2007, Hawthorn Bancshares, Inc. issued a press release announcing that its board of directors had approved a quarterly cash dividend of 21 cents per share, payable October 1, 2007 to shareholders of record at the close of business on September 14, 2007. The full text of the press release is furnished as an exhibit to this report on Form 8-K.
Item 9.01 Financial Statements and Exhibits.
3.1 Restated Articles of Incorporation of Hawthorn Bancshares, Inc.
3.2 Amended & Restated Bylaws of Incorporation of Hawthorn Bancshares, Inc.
99.1 Press release dated August 7, 2007 reporting financial results for the fiscal quarter ending June 30, 2007.
99.2 Press release dated August 9, 2007 announcing payment of a quarterly cash dividend.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Hawthorn Bancshares, Inc. | ||||
August 9, 2007 | By: |
James E. Smith
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Name: James E. Smith | ||||
Title: Chairman & CEO |
Exhibit Index
Exhibit No.
Description
Hawthorn Bancshares, Inc. Restated Articles of Incorporation
Hawthorn Bancshares, Inc. Amended & Restated By-Laws
Hawthorn Bancshares, Inc. 2nd Quarter Earnings Release
Hawthorn Bancshares, Inc. Dividend Announcement
Exhibit 3.1
RESTATED ARTICLES OF INCORPORATION
OF
HAWTHORN BANCSHARES, INC.
The undersigned, for the purpose of restating the Articles of Incorporation of Hawthorn
Bancshares, Inc., a Missouri corporation (the Corporation), in accordance with Section 351.106 of
The General and Business Corporation Law of Missouri, does hereby make and execute these Restated
Articles of Incorporation and does hereby certify that:
I. The name of the Corporation is Hawthorn Bancshares, Inc., and the name under which it was
originally organized was Exchange National Bancshares, Inc.
II. The Restated Articles of Incorporation of the Corporation adopted by a majority of the
Corporations Board of Directors on August 8, 2007 is as follows:
FIRST. The name of the Corporation is: Hawthorn Bancshares, Inc.
SECOND. The address, including street and number, of its registered office in the State of
Missouri is 300 Southwest Longview Boulevard, Lees Summit, Missouri 64081 and the name of its
registered agent at such address is James E. Smith.
THIRD.
(a) The total number of shares of capital stock which the Corporation shall have authority to
issue is 16,000,000, of which (i) 15,000,000 shares shall be common stock, of the par value of
$1.00 per share (hereinafter referred to as Common Stock) and (ii) 1,000,000 shares shall be
preferred stock, of the par value of $0.01 per share (hereinafter referred to as Preferred
Stock). All shares of Common Stock and Preferred Stock shall be fully paid up when issued and
shall be non-assessable.
Shares of Common Stock may be issued from time to time as the Board of Directors shall
determine and on such terms and for such consideration as shall be fixed by the Board of Directors.
Except as may otherwise be required by law, each holder of Common Stock shall have one vote in
respect of each share of Common Stock held by such shareholder on all matters voted upon by the
shareholders.
The Board of Directors is authorized, by adopting resolutions to such effect, to divide the
shares of Preferred Stock into one or more series, to provide for the issuance of, or a change in
the number of, shares of any series of Preferred Stock and, by filing a certificate pursuant to the
law of the General and Business Corporation Law of Missouri (if and to the extent from time to time
required by law), to establish or change the number of shares to be included in any such series and
to fix the voting powers and the designations, preferences and relative, participating, optional or
other rights, if any, and the qualifications, limitations or restrictions thereof, if any, relating
to the shares of each such series. Shares of any series of Preferred Stock may be issued from time
to time as the Board of Directors shall determine and on such terms and for such consideration as
shall be fixed by the Board of Directors.
Pursuant to the authority conferred upon the Board of Directors by the Articles of
Incorporation, as amended, of the Corporation, the Board of Directors on May 24, 2000, adopted the
following resolution creating a series of Ten Thousand (10,000) shares of Preferred Stock
designated as Series A Preferred Stock, $0.01 par value:
RESOLVED, that pursuant to the authority vested in the Board of Directors of
this Corporation in accordance with the provisions of its Articles of Incorporation,
as amended (the Articles of Incorporation), a series of Preferred Stock, $0.01 par
value, of the Corporation be and it hereby is created, and that the designation and
amount thereof and the voting powers, preferences and relative, participating,
optional and other special rights of the shares of such series, and the
qualifications, limitations and restrictions thereof are as follows:
Section 1.
Designation and Amount
. The shares of such series
shall be designated as Series A Preferred Stock and the number of shares
constituting such series shall be Ten Thousand (10,000). Such number of
shares may be increased or decreased by resolution of the Board of
Directors, provided that no decrease shall reduce the number of shares of
Series A Preferred Stock to a number less than the number of shares
outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding rights to purchase or convert into shares of
Series A Preferred Stock.
Section 2.
Dividends and Distributions
.
(A) Subject to the prior and superior rights of the holders of
any shares of any series of Preferred Stock ranking prior and
superior to the shares of Series A Preferred Stock with respect to
dividends, the holders of shares of Series A Preferred Stock, in
preference to the holders of Common Stock, par value $1.00 per share
(the Common Stock), of the Corporation and of any other class of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the shares of Series A Preferred Stock
(together with the Common Stock, the Junior Stock), shall be
entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, dividends
payable in cash in an amount per share (rounded to the nearest
cent), equal to the product of the Series A Multiple (as defined
below) then in effect times the aggregate per share amount of all
cash dividends declared (but not withdrawn) on the Common Stock,
plus the product of the Series A Multiple then in effect times the
aggregate per share amount (payable in cash, based upon the fair
market value at the time the non-cash dividend or other distribution
is declared as determined in good faith by the Board of Directors)
of all non-cash dividends or other distributions (other than a
dividend payable in shares of Common Stock, or a subdivision of the
outstanding shares of Common Stock (by reclassification or
otherwise)), declared (but not withdrawn) on the Common Stock.
(B) As used herein, the Series A Multiple shall initially be
1,000. In the event the Corporation shall (i) declare any dividend
on Common Stock payable in shares of Common Stock, (ii) subdivide
the outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares, then in each such case
the Series A Multiple shall be adjusted by multiplying such amount
by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(C) The Board of Directors of the Corporation shall not declare
a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock) unless it shall
concurrently therewith declare a dividend or distribution on the
Series A Preferred Stock. Payment of a dividend or distribution
determined on the Series A Preferred Stock shall be in preference to
payment of any dividend or distribution on any Junior Stock.
(D) The Board of Directors may fix a record date for the
determination of holders of shares of Series A Preferred Stock
entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be no more than thirty (30) days
prior to the date fixed for the payment thereof.
Section 3.
Voting Rights
. Except as otherwise provided herein
or by law and in addition to any rights provided in the Articles of
Incorporation, the holders of shares of Series A Preferred Stock shall have
the following voting rights:
(A) Each share of Series A Preferred Stock shall entitle the
holder thereof to a number of votes on all matters submitted to the
shareholders of the Corporation equal to the product of the Series A
Multiple then in effect times the number of votes that each share of
Common Stock entitles its holder to vote at a meeting of the
shareholders of the Corporation.
(B) The holders of shares of Series A Preferred Stock and the
holders of shares of Common Stock and any other capital stock of the
Corporation having general voting rights shall vote together as one
class on all matters submitted to a vote of shareholders of the
Corporation.
(C) The holders of Series A Preferred Stock shall have no
special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate action.
Section 4.
Certain Restrictions
.
(A) Whenever dividends or distributions payable on the Series A
Preferred Stock as provided in Section 2 are in arrears, thereafter
and until all accrued and unpaid dividends and distributions on
shares of Series A Preferred Stock outstanding shall have been paid
in full, the Corporation shall not:
(i) declare or pay dividends (other than a dividend
payable in shares of Common Stock) on, make any other
distributions on, or redeem or purchase or otherwise acquire
for consideration any shares of Junior Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock (Parity
Stock), except dividends paid ratably on the Series A
Preferred Stock and all such Parity Stock on which dividends
are payable or in arrears in proportion to the total amounts
to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any Parity Stock, provided that the
Corporation may at any time redeem, purchase or otherwise
acquire shares of any such Parity Stock in exchange for
shares of any Junior Stock; or
(iv) purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of Parity
Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of
Directors) to all holders of such shares upon such terms as
the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and
preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation unless the Corporation could,
under paragraph (A) of this Section 4, purchase or otherwise acquire
such shares at such time and in such manner.
Section 5.
Reacquired Shares
. Any shares of Series A Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized
but unissued shares of Preferred Stock and may be reissued as part of a new
series of Preferred Stock to be created by resolution or resolutions of the
Board of Directors, subject to the conditions and restrictions on issuance
set forth herein, in the Articles of Incorporation, in any other Certificate
of Designation establishing a series of Preferred Stock or any similar stock
or as otherwise required by law.
Section 6.
Liquidation, Dissolution or Winding Up
.
(A) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of the
shares of Series A Preferred Stock shall be entitled to receive, in
preference to the holders of any Junior Stock, the greater of (a)
$1,000.00 per share, plus accrued dividends to the date of
distribution, whether or not earned or declared, or (b) an amount
per share equal to the product of the Series A Multiple then in
effect times the aggregate amount to be distributed per share to
holders of Common Stock.
(B) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of Parity
Stock shall not receive any distributions except for distributions
made ratably on the Series A Preferred Stock and all other such
Parity Stock in proportion to the total amounts to which the holders
of all such shares are entitled upon such liquidation, dissolution
or winding up.
Section 7.
Consolidation, Merger, Etc.
In case the Corporation
shall enter into any consolidation, merger, combination or other transaction
in which the shares of Common Stock are exchanged for or changed into other
stock or securities, cash and/or any other property, then in any such case
the shares of the Series A Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share equal to the product
of the Series A Multiple then in effect times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case
may be, into which or for which each share of Common Stock is changed or
exchanged.
Section 8.
No Redemption
. The shares of Series A Preferred
Stock shall not be redeemable.
Section 9.
Ranking
. The Series A Preferred Stock shall rank
junior to all other series of the Corporations Preferred Stock, or any
similar stock that specifically provides that it shall rank prior to the
shares of Series A Preferred Stock, as to the payment of dividends and the
distribution of assets, unless the terms of any such series shall provide
otherwise. Nothing herein shall preclude the Board of Directors from
creating any series of Preferred Stock or any similar stock ranking on a
parity with or prior to the shares of Series A Preferred Stock as to the
payment of dividends or the distribution of assets.
Section 10.
Fractional Shares
. Series A Preferred Stock may be
issued in fractions of a share which shall entitle the holder, in proportion
to such holders fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit of all other
rights of holders of Series A Preferred Stock.
Section 11.
Amendment
. The Articles of Incorporation,
including this Certificate of Designation establishing the shares of the
Series A Preferred Stock, shall not be amended in any manner that would
materially alter or change the powers, preferences or special rights of the
Series A Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of Series A Preferred Stock voting separately as a class.
(b) No holder of any shares of stock of the Corporation shall be entitled as such, as a matter
of right, to subscribe for or purchase any shares of stock of the Corporation of any class, whether
now or hereafter authorized or whether issued for cash, property or services or as a dividend or
otherwise, or to subscribe for or purchase any obligations, bonds, notes, debentures, other
securities or stock convertible into shares of stock of the Corporation of any class or carrying or
evidencing any right to purchase shares of stock of any class.
(c) Section 351.459 (as amended from time to time) of The General and Business Corporation Law
of Missouri shall apply to any business combination (as defined in such law from time to time) of
the Corporation with any interested shareholder (as defined in such law from time to time) of the
Corporation.
FOURTH. The name and place of residence of the incorporator are as follows:
FIFTH.
(a) The number of directors to constitute the first Board of Directors of the Corporation is
six. Thereafter the number of directors shall be fixed by, or in the manner provided in, the Bylaws
of the Corporation. Any change in the number of directors shall be reported to the Secretary of
State within 30 calendar days of such change, or within such other period, if any, as may then be
required by law.
The persons to constitute the first Board of Directors, each of whom shall hold office until
such directors successor is duly elected and qualified, or until such directors earlier
resignation or removal, are as follows:
Harold G. Butzer
(b) The members of the Board of Directors shall be divided into three classes (to be
designated as Class I, Class II and Class III), as nearly equal in number as the then total number
of Directors constituting the whole Board of Directors permits, with the terms of office of one
class expiring each year. Mr. Dudenhoeffer and Mr. Freeman are hereby named as Class I Directors to
hold office for a term expiring at the annual meeting of shareholders in 1993 and until their
successors are duly elected and qualified or until their earlier resignation or removal; Mr. Goller
and Mr. Loyd are hereby named as Class II Directors to hold office for a term expiring at the
annual meeting of shareholders in 1994 and until their successors are duly elected and qualified or
until their earlier resignation or removal; and Mr. Butzer and Mr. Campbell are hereby named as
Class III Directors to hold office for a term expiring at the annual meeting of shareholders in
1995 and until their successors are duly elected and qualified or until their earlier resignation
or removal. At each annual meeting of shareholders the successors to the class of Directors whose
term shall then expire shall be elected to hold office for a term expiring at the third succeeding
annual meeting and until their respective successors shall be duly elected and qualified or until
their respective earlier resignation or removal.
(c) Any vacancy in the Board of Directors for any reason, and any newly created directorships
resulting from any increase in the number of directors, may be filled by the Board of Directors,
acting by a majority of the Directors then in office, although less than a quorum, and any
directors so chosen shall hold office until the next election of the class for which such Directors
shall have been chosen and until their successors shall be elected and qualified or until their
respective earlier resignation or removal. No decrease in the number of Directors shall shorten the
term of any incumbent Director.
(d) Notwithstanding any other provisions of this Certificate of Incorporation or the Bylaws of
the Corporation (and notwithstanding the fact that some lesser percentage may be specified by law,
this Certificate of Incorporation or the Bylaws of the Corporation), any Director or the entire
Board of Directors of the Corporation may be removed at any time, but only in the following ways:
(i) by a majority of the Directors then in office for cause; or (ii) with or without cause, by the
affirmative vote of the holders of two-thirds (2/3) or more of the outstanding shares of stock of
the Corporation entitled to vote. The term for cause is hereby exclusively defined and limited to
mean commission of a felony, or a finding by a court of competent jurisdiction of liability for
negligence, or misconduct, in the performance of the Directors duty to the Corporation in a matter
of substantial importance to the Corporation, where such adjudication is no longer subject to
direct appeal.
(e) Advance notice of nomination for the election of Directors other than nominations by the
Board of Directors or a committee thereof shall be given to the Corporation in the manner provided
in the Bylaws.
SIXTH. The duration of the Corporation is perpetual.
SEVENTH. The purpose for which the Corporation is formed is to engage in any lawful business
for which corporations may be organized under The General and Business Corporation Law of Missouri,
including, without limitation, that of a bank holding company.
In addition to the powers and privileges conferred upon the Corporation by law and those
incidental thereto, the Corporation shall possess and may exercise all the powers and privileges
which are necessary or convenient to the conduct, promotion or attainment of the business or
purposes of the Corporation.
EIGHTH. Except as may be otherwise specifically provided by statute, as from time to time
amended, all powers of management, direction and control of the Corporation shall be, and hereby
are, vested in the Board of Directors.
NINTH. The original Bylaws of the Corporation shall be adopted in any manner provided by law.
Thereafter, unless otherwise required by law, the Bylaws of the Corporation may from time to time
be altered, amended or repealed, or new Bylaws may be adopted, in any of the following ways: (a) by
the affirmative vote, at any annual or special meeting of the shareholders, of the holders of
two-thirds (2/3) or more of the outstanding shares of stock of the Corporation entitled to vote; or
(b) by resolution adopted by a majority of the full Board of Directors at a meeting thereof or a
written statement of unanimous consent; provided, however, that the power of the directors to
alter, amend, or repeal the Bylaws, or to adopt new Bylaws, may be denied as to any Bylaws or
portion thereof enacted by the shareholders if at the time of such enactment the shareholders shall
so expressly provide.
TENTH.
10.1
Limitation of Liability
. No person shall be liable to the corporation or its
shareholders for loss, damage, liability or expense suffered by it on account of any action taken
or omitted to be taken by such person as a director or officer of the corporation or by any Other
Enterprise (as hereinafter defined) which such person serves or has served as a director or officer
at the request of the Corporation, if such person (a) exercised the same degree of care and skill
as a prudent man would have exercised under the circumstances in the conduct of his own affairs, or
(b) took or omitted to take such action in reliance upon advice of counsel for the Corporation, or
for such Other Enterprise, or upon statements made or information furnished by directors, officers,
employees or agents of the Corporation, or of such Other Enterprise, which such person had no
reasonable grounds to disbelieve.
10.2
Indemnification, Generally
. In addition to and without limiting the rights to
indemnification and advancement of expenses specifically provided for in the other sections of this
Article TENTH, the Corporation shall indemnify and advance expenses to each person who is or was an
officer or director of the Corporation to the full extent permitted by the laws of the State of
Missouri as in effect on the date of the adoption of these Articles of Incorporation and as may
hereafter be amended.
10.3
Right to Indemnification
. The Corporation shall indemnify each person who has
been 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, investigative or appellate
(regardless of whether such action, suit or proceeding is by or in the right of the Corporation or
by third parties) by reason of the fact that such person is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a director or officer of any
Other Enterprise against all liabilities and expenses, including, without limitation, judgments,
amounts paid in settlement, attorneys fees, ERISA excise taxes or penalties, fines and other
expenses, actually and reasonably incurred by such person in connection with such action, suit or
proceeding (including, without limitation, the investigation, defense, settlement or appeal of such
action, suit or proceeding); provided, however, that the Corporation shall not be required to
indemnify or advance expenses to any person from or on account of such persons conduct which was
finally adjudged to have been knowingly fraudulent, deliberately dishonest or willful misconduct,
provided, further, that the Corporation shall not be required to indemnify or advance expenses to
any person in connection with an action, suit or proceeding initiated by such person unless the
initiation of such action, suit or proceeding was authorized in advance by the Board of Directors
of the Corporation. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or under a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that such person s conduct was finally adjudged to have been knowingly
fraudulent, deliberately dishonest or willful misconduct. Notwithstanding anything to the contrary
in this section 10.3, no indemnification under this section 10.3 shall be made in respect of
expenses, penalties or other payments incurred by a person subject to indemnification hereunder in
connection with any administrative proceeding or action instituted by an appropriate bank
regulatory agency which results in a final order assessing civil money penalties or requiring
affirmative action by a person seeking indemnification hereunder in the form of payments to the
Corporation.
10.4
Enforcement of Indemnification
. In the event the Corporation refuses to indemnify
any person or persons who may be entitled to be indemnified or to have expenses advanced under this
Article TENTH, such person or persons shall have the right to maintain an action in any court of
competent jurisdiction against the Corporation to determine whether or not such person is entitled
to such indemnification or advancement of expenses hereunder. If such court action is successful
and the person or persons is determined to be entitled to such indemnification or advancement of
expenses, such person or persons shall be reimbursed by the Corporation for all fees and expenses
(including attorneys fees) actually and reasonably incurred in connection with any such action
(including, without limitation, the investigation, defense, settlement or appeal of such action).
10.5
Advancement of Expenses
. Expenses (including attorneys fees) reasonably incurred
in defending an action, suit or proceeding, whether civil, criminal, administrative, investigative
or appellate, shall 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 such person to repay such
amount if it shall ultimately be determined that such person is not entitled to indemnification by
the Corporation. In no event shall any advance be made in instances where the Board, independent
legal counsel or shareholders reasonably determines that such person would not be entitled to
indemnification hereunder.
10.6
Non-Exclusivity
. The indemnification and the advancement of expenses provided by
this Article TENTH shall not be exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any statute, these Articles of
Incorporation or the Bylaws of the Corporation or any agreement, vote of shareholders or
disinterested directors, policy of insurance or otherwise, both as to action in their official
capacity and as to action in another capacity while holding their respective offices, and shall not
limit in any way any right which the Corporation may have to make additional indemnifications with
respect to the same or different persons or classes of persons. The indemnification and advancement
of expenses provided by, or granted pursuant to, this Article TENTH shall continue as to a person
who has ceased to be a director or officer of the Corporation, and as to a person who has ceased
serving at the request of the Corporation as a director or officer of any Other Enterprise and
shall inure to the benefit of the heirs, executors and administrators of such a person.
10.7
Insurance
. Upon resolution passed by the Board of Directors, the Corporation may
purchase and maintain insurance on behalf of any person who is or was a director, officer, agent or
employee of the Corporation, or is or was serving at the request of the Corporation as a director,
officer, agent or employee of any Other Enterprise, against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such persons status as
such, whether or not the Corporation would have the power to indemnify such person against such
liability under the provisions of this Article TENTH, other than liability arising out of or in
connection with any administrative proceeding or action instituted by an appropriate bank
regulatory agency which results in civil money penalties against him or the Corporation.
10.8
Vesting of Rights
. The rights granted or created hereby shall be vested in each
person entitled to indemnification hereunder as a bargained-for, contractual condition of such
persons acceptance of his election or appointment as a director or officer of the Corporation or
serving at the request of the Corporation as a director or officer of any Other Enterprise and,
while this Article TENTH may be amended or repealed, no such amendment or repeal shall release,
terminate or adversely affect the rights of such person under this Article TENTH with respect to
any act taken or the failure to take any act by such person prior to such amendment or repeal or
with respect to any action, suit or proceeding with respect to such act or failure to act filed
after such amendment or repeal.
10.9
Definitions
. For purposes of this Article TENTH, references to:
(a) The Corporation shall, if and only if the Board of Directors shall determine, include,
in addition to the resulting or surviving corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger so that any person who is or
was a director or officer of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director or officer of any Other Enterprise shall stand in the
same position under the provisions of this Article TENTH with respect to the resulting or surviving
corporation as such person would if such person had served the resulting or surviving corporation
in the same capacity;
(b) Other Enterprises or Other Enterprise shall include, without limitation, The Exchange
National Bank of Jefferson City or any other corporation, partnership, joint venture, trust or
employee benefit plan;
(c) fines shall include any excise taxes assessed against a person with respect to an
employee benefit plan;
(d) defense shall include investigations of any threatened, pending or completed action,
suit or proceeding as well as appeals thereof and shall also include any defensive assertion of a
cross-claim or counterclaim; and
(e) serving at the request of the Corporation shall include any service as a director or
officer of a corporation which imposes duties on, or involves services by, such director or officer
with respect to an employee benefit plan, its participants, or beneficiaries; and a person who
acted in good faith and in a manner such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner not opposed to the best interests of the corporation as referred to in this Article TENTH.
For the purpose of this Article TENTH, unless the Board of Directors of the Corporation shall
determine otherwise, any director or officer of the Corporation who shall serve as a director or
officer of The Exchange National Bank of Jefferson City or any Other Enterprise of which the
Corporation, directly or indirectly, is a shareholder or creditor, or in which the Corporation is
in any way interested, shall be presumed to be serving as such director or officer at the request
of the Corporation. In all other instances where any person shall serve as a director or officer of
an Other Enterprise, if it is not otherwise established that such person is or was serving as such
director or officer at the request of the Corporation, the Board of Directors of the Corporation
shall determine whether such person is or was serving at the request of the Corporation, and it
shall not be necessary to show any actual or prior request for such service, which determination
shall be final and binding on the Corporation and the person seeking indemnification or advancement
of expenses.
10.10
Severability
. If any provision of this Article TENTH or the application of any
such provision to any person or circumstance is held invalid, illegal or unenforceable for any
reason whatsoever, the remaining provisions of this Article TENTH and the application of such
provision to other persons or circumstances shall not be affected thereby and, to the fullest
extent possible, the court finding such provision invalid, illegal or unenforceable shall modify
and construe the provision so as to render it valid and enforceable as against all persons or
entities and to give the maximum possible protection to persons subject to indemnification hereby
within the bounds of validity, legality and enforceability. Without limiting the generality of the
foregoing, if any director or officer of the Corporation or any person who is or was serving at the
request of the Corporation as a director or officer of any Other Enterprise, is entitled under any
provision of this Article TENTH to indemnification by the Corporation for some or a portion of the
judgments, amounts paid in settlement, attorneys fees, ERISA excise taxes or penalties, fines or
other expenses actually and reasonably incurred by any such person in connection with any
threatened, pending or completed action, suit or proceeding (including, without limitation, the
investigation, defense, settlement or appeal of such action, suit or proceeding), whether civil,
criminal, administrative, investigative or appellate, but not, however, for all of the total amount
thereof, the Corporation shall nevertheless indemnify such person for the portion thereof to which
such person is entitled.
ELEVENTH. Insofar as it is permitted under the laws of the State of Missouri and except as may
be otherwise provided by the Bylaws of the Corporation, (a) no contract or other transaction
between this Corporation and any other corporation, partnership, association or other organization
shall be void or voidable solely by reason of the fact that any director or officer of this
Corporation is interested in, or is a member, shareholder, director or officer of such other
corporation, partnership, association or other organization; and (b) any director or officer of
this Corporation, individually or jointly with one or more other directors or officers of this
Corporation, may be a party to, or may be interested in, any contract or other transaction of this
Corporation or in which this Corporation is interested, and no such contract or other transaction
shall be void or voidable solely thereby.
TWELFTH. The books and records of account of the Corporation may be kept (subject to any
provision contained in the statutes of the State of Missouri) outside the State of Missouri at such
place or places as may be designated from time to time by the Board of Directors or in the Bylaws
of the Corporation; provided, however, that the Corporation shall keep at its registered office or
principal place of business in the State of Missouri, or at the office of its transfer agent in the
State of Missouri, if any, books and records in which shall be recorded the number of shares
subscribed, the names of the owners of the shares, the numbers owned by them respectively, the
amount paid for the shares, and by whom, and the transfer of such shares with the date of transfer.
THIRTEENTH. Except as may be otherwise provided by statute, the Corporation shall be entitled
to treat the registered holder of any shares of the Corporation as the owner of such shares and of
all rights derived from such shares for all purposes and the Corporation shall not be obligated to
recognize any equitable or other claim to or interest in such shares or rights on the part of any
other person, including, but without limiting the generality of the term person to, a purchaser,
pledgee, assignee or transferee of such shares or rights, unless and until such person becomes the
registered holder of such shares. The foregoing shall apply whether or not the Corporation shall
have either actual or constructive notice of the claim by or the interest of such person.
FOURTEENTH. The Corporation reserves the right to alter, amend or repeal any provision
contained in its Articles of Incorporation in the manner now or hereafter permitted or prescribed
by the statutes of Missouri, and all rights and powers conferred herein are granted subject to this
reservation and subject to Article FIFTEENTH of this Certificate of Incorporation; provided,
however, that no such alteration, amendment or repeal may be made except in accordance with Article
FIFTEENTH.
FIFTEENTH. None of the provisions of Articles THIRD, FIFTH, NINTH, TENTH, FOURTEENTH, or this
Article FIFTEENTH may be altered, amended or repealed except upon the affirmative vote at any
annual or special meeting of the shareholders, of the holders of at least two-thirds (2/3) or more
of the outstanding shares of stock entitled to vote, nor shall new provisions to this Certificate
of Incorporation be adopted or existing provisions to the Certificate of Incorporation be altered,
amended or repealed which in either instance are in conflict or inconsistent with Articles THIRD,
FIFTH, NINTH, TENTH, FOURTEENTH, or this Article FIFTEENTH except upon such two-thirds (2/3) or
more shareholder vote. Any inconsistency developing between the provisions of a Bylaw and any
provisions of this Certificate of Incorporation shall be controlled by this Certificate of
Incorporation.
III. The Restated Articles of Incorporation correctly set forth without change the
corresponding provisions of the Articles of Incorporation as theretofore amended, and they hereby
supersede the original Articles of Incorporation and all amendments thereto.
IN WITNESS WHEREOF, these Restated Articles of Incorporation have been executed on behalf of
the Corporation by its President as of August 9, 2007.
Name
Residence
3130 Woodview Ridge Drive, Apt. 302 Kansas City, Kansas 66103
Donald L. Campbell
Charles G. Dudenhoeffer, Jr.
Philip D. Freeman
David R. Goller
James R. Loyd
HAWTHORN BANCSHARES, INC.
/s/ David T. Turner
David T. Turner, President
Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
HAWTHORN BANCSHARES, INC.
1
As adopted by the Board of Directors on August 8, 2007.
Page
ARTICLE I OFFICES AND RECORDS
1.1 Registered Office and Registered Agent
ARTICLE II SHAREHOLDERS
2.1 Place of Meetings
ARTICLE III BOARD OF DIRECTORS
3.1 Number and Eligibility
ARTICLE IV OFFICERS
4.1 Designations.
ARTICLE V INDEMNIFICATION
5.1 Indemnification, Generally
ARTICLE VI STOCK
6.1 Payment for Shares of Stock
ARTICLE VII CORPORATE FINANCE
7.1 Fixing of Capital Transfers of Surplus
ARTICLE VIII GENERAL PROVISIONS
8.1 Fiscal Year
2
AMENDED AND RESTATED BYLAWS
OF
HAWTHORN BANCSHARES, INC.
ARTICLE I
OFFICES AND RECORDS
1.1
Registered Office and Registered Agent
. The location of the registered office and
the name of the registered agent of the Corporation in the State of Missouri shall be as stated in
the Articles of Incorporation or as shall be determined from time to time by the Board of Directors
and on file in the appropriate office of the State of Missouri pursuant to applicable provisions of
law. Unless otherwise permitted by law, the address of the registered office of the Corporation
and the address of the business office of the registered agent shall be identical.
1.2
Corporate Offices
. The Corporation may have such corporate offices anywhere
within or without the State of Missouri as the Board of Directors from time to time may determine
or the business of the Corporation may require. The principal place of business or principal
business office or executive office of the Corporation may be fixed and so designated from time
to time by the Board of Directors, but the location or residence of the Corporation in the State of
Missouri shall be deemed for all purposes to be in the county in which its registered office in the
State of Missouri is maintained.
1.3
Books and Records
. The Corporation shall keep correct and complete books and
records of account, including the amount of its assets and liabilities, minutes of its proceedings
of its shareholders and Board of Directors and the names and places of residence of its officers.
The Corporation shall keep at its registered office of principal place of business in the State of
Missouri, or at the office of its transfer agent in the State of Missouri, if any, books and
records in which shall be recorded the number of shares subscribed, the names of the owners of the
shares, the numbers owned by them respectively, the amount paid for the shares, and by whom, and
the transfer of such shares with the date of transfer.
1.4
Inspection of Records
. A shareholder may, upon written demand, inspect the
records of the Corporation, pursuant to any statutory or other legal right, during the usual and
customary hours of business and in such manner as will not unduly interfere with the regular
conduct of the business of the Corporation. A shareholder may delegate his right of inspection to
a certified or public accountant on the condition, to be enforced at the option of the Corporation,
that the shareholder and accountant agree with the Corporation to furnish to the Corporation
promptly a true and correct copy of each report with respect to such inspection made by such
accountant. No shareholder shall use, permit to be used or acquiesce in the use by others of any
information so obtained to the detriment competitively of the Corporation, nor shall he furnish or
permit to be furnished any information so obtained to any competitor or prospective competitor of
the Corporation. The Corporation as a condition precedent to any shareholders inspection of the
records of the Corporation may require the shareholder to indemnify the Corporation, in such manner
and for such amount as may be determined by the Board of Directors, against any loss or damage
which may be suffered by it arising out of or resulting from any unauthorized disclosure made or
permitted to be made by such shareholder of information obtained in the course of such inspection.
ARTICLE II
SHAREHOLDERS
2.1
Place of Meetings
. All meetings of the shareholders shall be held at the
principal business office of the Corporation in the State of 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, upon notice thereof as hereinafter provided, at such other
place or places, within or without the State of Missouri, as the Board of Directors shall have
determined, and as shall be stated in such notice.
2.2
Annual Meetings
. An annual meeting of shareholders shall be held on the second
Wednesday in June of each year, if not a bank holiday, and if a bank holiday, then on the next
banking day following, at 9:00 a.m. At each annual meeting of shareholders, the shareholders
entitled to vote thereat shall elect directors by a majority vote to serve until expiration of
their respective term of office as specified in Article FIFTH of the Articles of Incorporation and
until their respective successors are duly elected and qualified, or until their respective earlier
resignation or removal, and may transact such other business as may properly be brought before the
meeting as provided in Bylaw 3.14.
2.3
Special Meetings
.
(a) Special meetings of the shareholders may be held for any purpose or purposes and may be
called by the Board of Directors, or by the holders of, or by any officer or shareholder upon the
written request of the holders of not less than two-thirds (2/3) of all outstanding shares entitled
to vote at any such meeting, and shall be called by any officer directed to do so by the Board of
Directors.
(b) The call and the notice of any such meeting shall be deemed to be synonymous.
2.4
Consent of Shareholders in Lieu of Meeting
. Any action required to be taken or
which may be taken at a meeting of the shareholders may be taken without a meeting if consents in
writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to
vote with respect to the subject matter thereof. Such consents shall have the same force and
effect as a unanimous vote of the shareholders at a meeting duly held. The Secretary shall file
such consents with the minutes of the meetings of the shareholders.
2.5
Notice; Waiver of Notice
.
(a) Written or printed notice of each meeting of the shareholders, whether annual or special,
stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or
purposes thereof, shall be delivered or given to each shareholder entitled to vote at such meeting,
as determined in accordance with Bylaw 6.4, either personally or by mail, not less than 10 days or
more than 70 days before the date of the meeting, either personally or by mail, by or at the
direction of the President, the Secretary, or the officer or persons calling the meeting, to each
shareholder of record entitled to vote at such meeting, unless, as to a particular matter, other or
further notice is required by law, in which case such other or further notice shall be given.
(b) Any notice to a shareholder of a shareholders meeting sent by mail shall be deemed to be
delivered when deposited in the United States mail with postage thereon prepaid, addressed to the
shareholder at his address as it appears on the records of the Corporation.
(c) Whenever any notice is required to be given to any shareholder under the provisions of
these Bylaws, or of the Articles of Incorporation or of any law, a waiver thereof in writing signed
by the person or persons entitled to such notice, whether before or after the time stated therein,
shall be deemed equivalent to the giving of such notice.
(d) To the extent provided by law, attendance of a shareholder at any meeting shall constitute
a waiver of notice of such meeting except where a shareholder attends a meeting for the express
purpose of objecting to the transaction of any business because the meeting is not lawfully called
or convened.
2.6
Presiding Officials
. Every meeting of the shareholders, for whatever purpose,
shall be convened by the President, the Secretary or by the officer or any of the persons who
called the meeting by notice as above provided. The meeting shall be presided over by the officers
specified in Bylaws 4.7, 4.8 and 4.9; provided, however, that the shareholders at any meeting, by a
vote of two-thirds (2/3) or more of the outstanding shares of stock of the Corporation entitled to
vote, and notwithstanding anything to the contrary contained elsewhere in these Bylaws, may select
any persons of their choosing to act as chairman and secretary of such meeting or any session
thereof.
2.7
Business Which May be Transacted
.
(a) At each annual meeting of the shareholders, the shareholders shall elect directors to hold
office until expiration of such directors term of office as specified in Article FIFTH of the
Articles of Incorporation and until such directors successor is duly elected and qualified or
until such directors earlier resignation or removal. At the annual meeting, the shareholders may
transact such other business as may be properly brought before an annual meeting pursuant to Bylaw
3.14.
(b) Business transacted at all special meetings of the shareholders shall be confined to the
purpose or purposes stated in the notices of such meetings.
2.8
Quorum
. Unless otherwise provided by the Articles of Incorporation or these
Bylaws, a majority of the outstanding shares entitled to vote at any meeting represented in person
or by proxy, shall constitute a quorum at all meetings of the shareholders; provided, that in no
event shall a quorum consist of less than a majority of the outstanding shares entitled to vote,
but less than such quorum shall have the right successively to adjourn the meeting, without notice
to any shareholder not present at the meeting, to a specified date no later than 60 days after such
adjournment. The affirmative vote of a majority of shares entitled to vote on the subject matter
and represented in person or by proxy at a meeting at which a quorum is present shall be valid as
an act of the shareholders, unless a larger vote is required by law, by the Articles of
Incorporation or by these Bylaws. At any subsequent session of the meeting at which a quorum is
present in person or by proxy any business may be transacted which could have been transacted at
the initial session of the meeting if a quorum had been present.
2.9
Proxies
. At any meeting of the shareholders every shareholder having the right to
vote shall be entitled to vote in person or by proxy executed in writing by such shareholder or by
his duly authorized attorney in fact. No proxy shall be valid after 11 months from the date of its
execution, unless otherwise provided in the proxy.
2.10
Voting
.
(a) Unless otherwise provided in the Articles of Incorporation, each shareholder shall have
one vote for each share of stock entitled to vote under the provisions of the Articles of
Incorporation and which is registered in his name on the books of the Corporation.
(b) Unless otherwise provided in the Articles of Incorporation, each shareholder in the
election of directors shall have one vote for each share of stock entitled to vote.
(c) No person shall be admitted to vote on any shares of the Corporation belonging or
hypothecated to the Corporation.
(d) If the Board of Directors does not close the transfer books or set a record date for the
determination of its shareholders entitled to notice of, and to vote at, a meeting of shareholders,
only those persons who are shareholders of record at the close of business on the 20th day
preceding the date of such meeting shall be entitled to notice of, and to vote at, such meeting and
any adjournment of such meeting; except that, if prior to such meeting written waivers of notice of
such meeting are signed and delivered to the Corporation by all of the shareholders of record at
the time such meeting is convened, only those persons who are shareholders of record at the time
such meeting is convened shall be entitled to vote at such meeting, and any adjournment thereof.
2.11
Registered Shareholders Exceptions Stock Ownership Presumed
. The Corporation
shall be entitled to treat the holders of the shares of stock of the Corporation, as recorded on
the stock record or transfer books of the Corporation, as the holders of record and as the holders
and owners in fact thereof, and, accordingly, the Corporation shall not be required to recognize
any equitable or other claim to or interest in any such shares on the part of any other person,
firm, partnership, corporation or association, whether or not the Corporation shall have express or
other notice thereof, except as is otherwise expressly required by law, and the term shareholder
as used in these Bylaws means one who is a holder of record of shares of the Corporation; provided,
however, that if permitted by law:
(a) shares standing in the name of another corporation, domestic or foreign, may be voted by
such officer, agent or proxy as the bylaws of such corporation may prescribe, or, in the absence of
such provision, as the board of directors of such corporation may determine;
(b) shares standing in the name of a deceased person may be voted by his personal
representative, either in person or by proxy; and shares standing in the name of a conservator or
trustee may be voted by such fiduciary, either in person or by proxy, but no conservator or trustee
shall be entitled, as such fiduciary, to vote shares held by him without a transfer of such shares
into his name;
(c) shares standing in the name of a receiver may be voted by such receiver, and shares held
by or under the control of a receiver may be voted by such receiver without the transfer thereof
into his name if authority so to do be contained in an appropriate order of the court by which such
receiver was appointed; and
(d) a shareholder whose shares are pledged shall be entitled to vote such shares until the
shares have been transferred into the name of the pledgee, and thereafter the pledgee shall be
entitled to vote the shares so transferred.
2.12
Shareholders Lists
.
(a) A complete list of the shareholders entitled to vote at each meeting of the shareholders,
arranged in alphabetical order, with the address of and the number of voting shares held by each,
shall be prepared by the officer of the Corporation having charge of the stock transfer books of
the Corporation, and shall, for a period of 10 days prior to the meeting, be kept on file at the
registered office of the Corporation in the State of Missouri and shall at any time during the
usual hours for business be subject to inspection by any shareholder. Such list or a duplicate
thereof shall also be produced and kept open at the time and place of the meeting and shall be
subject to the inspection of any shareholder during the whole time of the meeting. The original
share ledger or transfer book, or a duplicate thereof kept in the State of Missouri, shall be prima
facie evidence as to who are the shareholders entitled to examine such list, share ledger or
transfer book or to vote at any meeting of shareholders.
(b) Failure to comply with the foregoing shall not affect the validity of any action taken at
any such meeting.
ARTICLE III
BOARD OF DIRECTORS
3.1
Number and Eligibility
. Unless and until changed by the Board of Directors as
hereinafter provided, the number of directors to constitute the Board of Directors shall be the
same number as that provided for the first Board in the Articles of Incorporation or, if not so
provided, shall be the same as the number of persons named by the incorporator or incorporators to
constitute the first Board of Directors of the Corporation. Each director shall hold such office
until expiration of such directors term of office as specified in Article FIFTH of the Articles of
Incorporation and until such directors successor is duly elected and qualified or until such
directors earlier resignation or removal. The Board of Directors shall have the power to change
the number of directors by resolution adopted by a majority of the whole Board, provided that,
within 30 days after any such change, the Secretary of the State of Missouri shall be given notice
of any such change. Directors need not be shareholders of the Corporation unless the Articles of
Incorporation at any time so require. No person shall be eligible to stand for election as a
director if he or she has been convicted of a felony by a court of competent jurisdiction where
such conviction is no longer subject to direct appeal. No person shall serve on the Board beyond
the end of the term in which he or she attains his or her 75th birthday, nor shall any person,
following his or her 75th birthday, be eligible to stand for election as a director.
3.2
Classes
. The Board of Directors shall be divided into three classes, in
accordance with the provisions of the Articles of Incorporation.
3.3
Powers of the Board
. The property and business of the Corporation shall be
controlled and managed by the directors, acting as a Board. The Board shall have and is vested
with all powers and authorities, except as may be expressly limited by law, the Articles of
Incorporation or these Bylaws, to do or cause to be done any and all lawful things for and in
behalf of the Corporation, to exercise or cause to be exercised any or all of its powers,
privileges and franchises, and to seek the effectuation of its objects and purposes.
3.4
Offices
. The directors may have one or more offices, and keep the books of the
Corporation (except the original or duplicate stock ledgers, and such other books and records as
may by law be required to be kept at a particular place) at such place or places within or without
the State of Missouri as the Board of Directors may from time to time determine.
3.5
Meetings of the Newly Elected Board
. The members of each newly elected Board (a)
shall meet at such time and place, either within or without the State of Missouri, as shall be
suggested or provided for by resolution of the shareholders at the annual meeting, and no notice of
such meeting shall be necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or (b) if not so suggested or provided for by
resolution of the shareholders, or if a quorum shall not be present, may meet at such time and
place as shall be consented to in writing by a majority of the newly elected directors, provided
that written or printed notice of such meeting shall be mailed, sent by telegram or delivered to
each of the other directors in the same manner as provided in Bylaw 3.6(b) with respect to the
giving of notice for special meetings of the Board except that it shall not be necessary to state
the purpose of the meeting in such notice, or (c) regardless of whether or not the time and place
of such meeting shall be suggested or provided for by resolution of the shareholders at the annual
meeting, may meet at such time and place as shall be consented to in writing by all of the newly
elected directors. Each director, upon his election, shall qualify by accepting the office of
director, and his attendance at, or his written approval of the minutes of, any meeting of the
newly elected directors shall constitute his acceptance of such office; or he may execute such
acceptance by a separate writing, which shall be placed in the minute book.
3.6
Notice of Meetings; Waiver of Notice
.
(a)
Regular Meetings
. Regular meetings of the Board may be held without notice at
such times and places either within or without the State of Missouri as shall from time to time be
fixed by resolution adopted by the full Board of Directors. Any business may be transacted at a
regular meeting.
(b)
Special Meetings
.
(i) Special meetings of the Board may be called at any time by the Chairman of the Board, the
President, or by any three or more of the directors. The place may be within or without the State
of Missouri as designated in the notice.
(ii) Written or printed notice of each special meeting of the Board, stating the place, day
and hour of the meeting and the purpose or purposes thereof, shall be mailed to each director at
least three days before the day on which the meeting is to be held, or shall be delivered to him
personally or sent to him by telegram at least two days before the day on which the meeting is to
be held. If mailed, such notice shall be deemed to be delivered when it is deposited in the United
States mail with postage thereon prepaid, addressed to the director at his residence or usual place
of business. If given by telegraph, such notice shall be deemed to be delivered when it is
delivered to the telegraph company. The notice may be given by any officer having authority to
call the meeting or by any director.
(iii) Notice and call with respect to such meetings shall be deemed to be synonymous.
(c)
Waiver of Notice
. Whenever any notice is required to be given to any director
under the provisions of these Bylaws, or of the Articles of Incorporation or of any law, a waiver
thereof in writing signed by such director, whether before or after the time stated therein, shall
be deemed equivalent to the giving of such notice. Attendance of a director at any meeting shall
constitute a waiver of notice of such meeting except where a director attends a meeting for the
express purposes of objecting to the transaction of any business because the meeting is not
lawfully called or convened.
3.7
Meetings by Conference Telephone or Similar Communications Equipment
. Unless
otherwise restricted by the Articles of Incorporation or these Bylaws or by law, members of the
Board of Directors of the Corporation, or any committee designated by the Board, may participate in
a meeting of the Board or committee by means of conference telephone or similar communications
equipment whereby all persons participating in the meeting can hear each other, and participation
in a meeting in such manner shall constitute presence in person at the meeting.
3.8
Action Without a Meeting
. Any action which is required to be or may be taken at a
meeting of the directors, or of the executive committee or any other committee of the directors,
may be taken without a meeting if consents in writing, setting forth the action so taken, are
signed by all of the members of the Board or of the committee as the case may be. The consents
shall have the same force and effect as a unanimous vote at a meeting duly held. The Secretary
shall file such consents with the minutes of the meetings of the Board of Directors or of the
committee as the case may be.
3.9
Quorum
. At all meetings of the Board, a majority of the full Board of Directors
shall, unless a greater number as to any particular matter is required by law, the Articles of
Incorporation or these Bylaws, constitute a quorum for the transaction of business. The act of a
majority of the directors present at any meeting of the Board of Directors at which a quorum is
present shall be the act of the Board of Directors, unless the act of a greater number is required
by law, the Articles of Incorporation or these Bylaws.
3.10
Vacancies
. Unless otherwise provided in the Articles of Incorporation, these
Bylaws or by law, vacancies on the Board of Directors and newly created directorships resulting
from any increase in the number of directors to constitute the Board may be filled by a majority of
the directors then in office, although less than a quorum, or by a sole remaining director, until
the next election of the class of directors for which such directors shall have been chosen and
until their successors shall be elected and qualified or until their respective earlier resignation
or renewal.
3.11
Committees
.
(a) The Board of Directors may, by resolution or resolutions adopted by a majority of the
whole Board of Directors, designate two or more directors of the Corporation to constitute one or
more committees (including without limitation an executive committee). Each such committee, to the
extent provided in such resolution or resolutions, shall have and may exercise all of the authority
of the Board of Directors in the management of the Corporation; provided, however, that the
designation of each such committee and the delegation thereto of authority shall not operate to
relieve the Board of Directors, or any member thereof, of any responsibility imposed upon it or him
by law.
(b) Each such committee shall keep regular minutes of its proceedings, which minutes shall be
recorded in the minute book of the Corporation. The Secretary or an Assistant Secretary of the
Corporation may act as Secretary for each such committee if the committee so requests.
3.12
Compensation of Directors and Committee Members
. Directors, including Advisory
Directors, and members of all committees shall not receive any stated salary for their services as
such, unless authorized by resolution of the Board of Directors. Also, by resolution of the Board,
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. 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.
3.13
Removal of Directors
. Directors may be removed only in the manner provided in
the Corporations Certificate of Incorporation.
3.14 Nomination of Directors and Presentation of Business at Shareholder Meetings.
(a) Nominations of persons for election to the Board of Directors and the proposal of business
to be considered by the shareholders may be made at an annual meeting of shareholders (i) pursuant
to the Corporations notice of meeting, (ii) by or at the direction of the Board of Directors or
(iii) by any shareholder who was a shareholder of record at the time of the giving of notice
provided for in this Bylaw 3.14, who is entitled to vote thereon at the meeting and who complied
with the notice procedures set forth in this Bylaw 3.14.
(b) For nominations or other business to be properly brought before an annual meeting by a
shareholder pursuant to clause (iii) of section (a) of this Bylaw 3.14, the shareholder must have
given timely notice thereof in writing to the Secretary of the Corporation. To be timely, a
shareholders notice shall be delivered to the Secretary at the principal executive offices of the
Corporation not less than 60 days prior to the first anniversary of the preceding years annual
meeting, provided that notices for nominations may be delivered to the Secretary not less than 30
days prior to such anniversary; provided, however, that in the event that the date of the annual
meeting is advanced by more than 30 days or delayed by more than 60 days from such anniversary
date, notice by the shareholder to be timely must be so delivered not later than the close of
business on the later of (i) the 60th day (in the case of nominations, the 30th day) prior to such
annual meeting or (ii) the 10th day following the date on which public announcement of the date of
such meeting is first made. Such shareholders notice shall set forth as to each person whom the
shareholder proposes to nominate for election or reelection as a Director: (a) the name and
address of the shareholder who intends to make the nomination and of the person or persons to be
nominated; (b) a representation that such shareholder is a holder of record of stock of the
Corporation entitled to vote in the election of directors at such meeting and intends to appear in
person or by proxy at the meeting to nominate the person or persons specified in the notice;
(c) the name and address of such shareholder, as it appears on the Corporations books, and of the
beneficial owner (as such term is defined in Rule 240.13d-3 of the Securities Exchange Act of 1934,
as amended, (Exchange Act) (17 C.F.R. § 240.13d-3)), if any, on whose behalf the nomination is
made; (d) the class and number of shares of the Corporation which are owned beneficially (as such
term is defined in Rule 240.13d-3 of the Exchange Act (17 C.F.R. § 240.13d-3)) and of record by the
nominating shareholder and each nominee proposed by such shareholder; (e) a description of all
arrangements or understandings between the shareholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or nominations are to be
made by the shareholder; (f) such other information regarding each nominee proposed by such
shareholder as would have been required to be included in a proxy statement filed pursuant to
Regulation 14A (17 C.F.R. § 240.14a-l
et seq.
) as then in effect under the Exchange Act,
had the nominee been nominated, or intended to be nominated, by the Board of Directors; and (g) the
consent of each nominee to serve as a Director of the Corporation if so elected. As to any other
business that the shareholder proposes to bring before the meeting, a shareholders notice to the
Secretary shall set forth as to each matter: (a) a brief description of the business desired to be
brought before the annual meeting; (b) the information required by subsections (b), (c) and (d)
above; (c) the reason for conducting such business at the meeting and any material interest of the
shareholder or such beneficial owner in such business; and (d) all other information with respect
to each such matter as would have been required to be included in a proxy statement filed pursuant
to Regulation 14A (17 C.F.R. § 240.14a-l
et
seq.
) as then in effect under the
Exchange Act, had proxies been solicited by the Board of Directors with respect thereto.
Notwithstanding anything in this Bylaw 3.14(b) to the contrary, in the event that the number of
Directors to be elected to the Board of Directors is increased and there is no public announcement
naming all of the nominees for Director or specifying the size of the increased Board of Directors
made by the Corporation at least 40 days prior to the first anniversary of the preceding years
annual meeting, a shareholders notice shall also be considered timely, but only with respect to
nominees for any new positions created by such increase, if it shall be delivered to the Secretary
at the principal executive offices of the Corporation not later than the close of business on the
10th day following the day on which such public announcement is first made by the Corporation.
(c) Only such business shall be conducted at a special meeting of shareholders as shall have
been brought before the meeting pursuant to the Corporations notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting of shareholders
with regard to which the Board of Directors has determined that Directors are to be elected (i)
pursuant to the Corporations notice of meeting, (ii) by or at the direction of the Board of
Directors, or (iii) by any shareholder who is a shareholder of record at the time of the giving of
notice provided for in this Bylaw 3.14, who shall be entitled to vote for the election of Directors
at the meeting and who complies with the notice procedures set forth in the last sentence of this
section (c) of this Bylaw 3.14. In the event the Corporation calls a special meeting of
shareholders for the purpose of electing one or more Directors to the Board, any such shareholder
may nominate a person or persons (as the case may be) for election to such position(s) as specified
in the Corporations notice of meeting, if the shareholders notice setting forth the information
required by section (b) of this Bylaw 3.14 shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the later of (i) the
30th day prior to such special meeting or (ii) the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the nominees proposed by the
Board of Directors to be elected at such meeting.
(d) Only such persons who are nominated in accordance with the procedures set forth in this
Bylaw 3.14 shall be eligible to serve as Directors and only such business shall be conducted at a
meeting of shareholders as shall have been brought before the meeting in accordance with the
procedures set forth in this Bylaw 3.14. The chairman of the meeting of shareholders shall have the
power and duty to determine whether a nomination or any business proposed to be brought before the
meeting was made in accordance with the procedures set forth in this Bylaw 3.14 and, if any
proposed nomination or business is not in compliance with this Bylaw 3.14, to declare that such
defective nominations or proposal shall be disregarded.
(e) For purposes of this Bylaw 3.14, public announcement shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press 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 Exchange Act.
(f) Notwithstanding the foregoing provisions of this Bylaw 3.14, a shareholder shall also
comply with all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Bylaw 3.14. To the extent Bylaw 3.14
shall be deemed by the Board of Directors or the Securities and Exchange Commission, or adjudged by
a court of competent jurisdiction, to be inconsistent with the rights of shareholders to request
inclusion of a proposal in the Corporations proxy statement pursuant to Rule 14a-8 under the
Exchange Act, such rule shall prevail.
3.15
Advisory Directors
. The Board of Directors may also include Advisory Directors
chosen by a majority vote of the Board of Directors. Advisory Directors may participate in all
meetings of the Board of Directors, but will not be entitled to vote at such meetings. Advisory
Directors shall have the right to participate in all discussions with respect to any and all items
of business brought before the Board of Directors at such meetings other than any matter as to
which a majority of the Board of Directors determines in good faith that consideration of such
matter should be limited to voting Directors. Compensation of Advisory Directors shall be
determined by the Board of Directors. The term of each Advisory Director shall be determined by
the Board of Directors.
ARTICLE IV
OFFICERS
4.1
Designations
.
(a) The officers of the Corporation shall be a Chairman of the Board, a President, a Vice
Chairman of the Board, one or more Senior Vice Presidents, one or more Vice Presidents, a Secretary
and a Treasurer. The Board shall elect a President and Secretary at its first meeting after each
annual meeting of the shareholders. The Board then, or from time to time, may also elect one or
more of the other prescribed officers as it shall deem advisable, but need not elect any officers
other than a President and a Secretary. The Board may, if it desires, elect or appoint additional
officers and may further identify or describe any one or more of the officers of the Corporation.
(b) The officers of the Corporation need not be members of the Board of Directors. Any two or
more offices may be held by the same person.
(c) An officer shall be deemed qualified when he enters upon the duties of the office to which
he has been elected or appointed and furnishes any bond required by the Board; but the Board may
also require his written acceptance and promise faithfully to discharge the duties of such office.
4.2
Term of Office
. Each officer of the Corporation shall hold his office at the
pleasure of the Board of Directors or for such other period as the Board may specify at the time of
his election or appointment, or until his death, resignation or removal by the Board, whichever
first occurs. In any event, each officer of the Corporation who is not reelected or reappointed at
the annual election of officers by the Board next succeeding his election or appointment shall be
deemed to have been removed by the Board, unless the Board provides otherwise at the time of his
election or appointment.
4.3
Other Agents
. The Board from time to time may appoint such other agents for the
Corporation as the Board shall deem necessary or advisable, each of whom shall serve at the
pleasure of the Board or for such period as the Board may specify, and shall exercise such powers,
have such titles and perform such duties as shall be determined from time to time by the Board or
by an officer empowered by the Board to make such determinations.
4.4
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 or discharge shall be without
prejudice to the contract rights, if any, of the person so removed or discharged.
4.5
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 and the President, may, unless
prohibited by law, be delegated by the Board to the Chairman of the Board, the President or a
committee. Salaries and compensation of all appointed officers and agents, and of all 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 President or by such other officer or officers as may be empowered by the Board of
Directors to do so.
4.6
Delegation of Authority to Hire, Discharge and Designate Duties
. The Board from
time to time may delegate to the Chairman of the Board, the President or other officer or executive
employee of the Corporation, authority to hire, discharge and fix and modify the duties and salary
or other compensation or 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.
4.7
Chairman of the Board
. If a Chairman of the Board be elected, he shall, except as
otherwise provided for in Bylaw 2.6, preside at all meetings of the shareholders and directors at
which he may be present and shall have such other duties, powers and authority as may be prescribed
elsewhere in these Bylaws. The Board of Directors may delegate such other authority and assign
such additional duties to the Chairman of the Board, other than those conferred by law exclusively
upon the President, as the Board may from time to time determine, and, to the extent permissible by
law, the Board may designate the Chairman of the Board as the chief executive officer of the
Corporation with all of the powers otherwise conferred upon the President of the Corporation under
Bylaw 4.8, or the Board may, from time to time, divide the responsibilities, duties and authority
for the general control and management of the Corporations business and affairs between the
Chairman of the Board and the President. If the Chairman of the Board is designated as the chief
executive officer of the Corporation or to have the powers of the chief executive officer
coextensively with the President, notice thereof shall be given to the extent and in the manner as
may be required by law.
4.8
President
.
(a) Unless the Board otherwise provides, the President shall be the chief executive officer of
the Corporation with such general executive powers and duties of supervision and management as are
usually vested in the office of the chief executive officer of a corporation, and he shall carry
into effect all directions and resolutions of the Board. Except as otherwise provided for in Bylaw
2.6, the President, in the absence of the Chairman of the Board or if there be no chairman of the
board, shall preside at all meetings of the shareholders and directors.
(b) The President may execute all bonds, notes, debentures, mortgages and other contracts
requiring a seal, under the seal of the Corporation, may cause the seal to be affixed thereto, and
may execute all other instruments for and in the name of the Corporation.
(c) Unless the Board otherwise provides, the President, or any person designated in writing by
him, may (i) 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 or his designee may determine, and (ii) execute and deliver
waivers of notice and proxies for and in the name of this Corporation with respect to shares of any
such corporation owned by this Corporation.
(d) The President shall, unless the Board otherwise provides, be an ex officio member of all
standing committees.
(e) The 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.
(f) If a Chairman of the Board be elected and designated as the chief executive officer of the
Corporation, as provided in Bylaw 4.7, the President shall perform such duties as may be
specifically delegated to him by the Board of Directors or are conferred by law exclusively upon
him, and in the absence or disability of the Chairman of the Board or in the event of his inability
or refusal to act, the President shall perform the duties and exercise the powers of the Chairman
of the Board.
4.9
Vice Chairman of the Board
. In the absence or disability of the Chairman of the
Board or in the event of his inability or refusal to act, the Vice Chairman of the Board may
perform the duties and exercise the powers of the Chairman of the Board, until the Board otherwise
provides. The Vice Chairman of the Board shall perform such other duties as the Board shall from
time to time prescribe.
4.10
Senior Vice Presidents
. In the absence or disability of the President or in the
event of his inability or refusal to act, any Senior Vice President may perform the duties and
exercise the powers of the President, until the Board otherwise provides. Senior Vice Presidents
shall perform such other duties as the Board shall from time to time prescribe.
4.11
Vice Presidents
. In the absence or disability of any Senior Vice President or in
the event of his inability or refusal to act, any Vice President may perform the duties and
exercise the powers of the Senior Vice President, until the Board otherwise provides. Vice
Presidents shall perform such other duties as the Board shall from time to time prescribe.
4.12
Secretary
.
(a) The Secretary shall attend all meetings of the Board and, except as otherwise provided for
in Bylaw 2.6, all meetings of the shareholders. He shall prepare minutes of all proceedings at
such meetings and shall preserve them in a minute book of the Corporation. He shall perform
similar duties for each executive and standing committee when requested by the Board or such
committee.
(b) The Secretary shall see that all books, records, lists and information, or duplicates,
required to be maintained at the registered or other office of the Corporation in the State of
Missouri, or elsewhere, are so maintained.
(c) The Secretary shall keep in safe custody the seal of the Corporation and when duly
authorized to do so shall affix the seal of the Corporation to any instrument requiring a corporate
seal, and, when so affixed, he shall be authorized to attest the seal by his signature.
(d) The Secretary shall perform such other duties and have such other responsibility and
authority as may be prescribed elsewhere in these Bylaws or from time to time by the Board of
Directors or the chief executive officer of the Corporation, under whose direct supervision the
Secretary shall be.
(e) The Secretary shall have the general duties, powers and responsibilities of a secretary of
a corporation.
(f) In the absence or disability of the Secretary or in the event of his inability or refusal
to act, any Assistant Secretary may perform the duties and exercise the powers of the Secretary
until the Board of Directors otherwise provides. Assistant Secretaries shall perform such other
duties and have such other authority as the Board of Directors may from time to time prescribe.
4.13
Treasurer
.
(a) The Treasurer shall have responsibility for the safekeeping of the funds and securities of
the Corporation, shall keep or cause to be kept full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall keep, or cause to be kept, all other
books of account and accounting records of the Corporation. He shall deposit or cause to be
deposited 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 or by any officer of the
Corporation to whom such authority has been granted by the Board.
(b) The Treasurer 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
officer of the Corporation and the directors, whenever they may require, an account of all his
transactions as treasurer and of those under his jurisdiction, and of the financial condition of
the Corporation.
(c) The Treasurer 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.
(d) The Treasurer shall have the general duties, powers and responsibilities of a treasurer of
a Corporation, and shall, unless otherwise provided by the Board, be the chief financial and
accounting officer of the Corporation.
(e) If required by the Board, the Treasurer shall give the Corporation a bond in a sum and
with one or more sureties satisfactory to the Board for the faithful performance of the duties of
his office and for the restoration to the Corporation, in the case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control which belong to the Corporation.
(f) In the absence or disability of the Treasurer or in the event of his inability or refusal
to act, any Assistant Treasurer may perform the duties and exercise the powers of the Treasurer
until the Board otherwise provides. Assistant Treasurers shall perform such other duties and have
such other authority as the Board may from time to time prescribe.
4.14
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 full Board of Directors concurs.
ARTICLE V
INDEMNIFICATION
5.1
Indemnification, Generally
. The Corporation shall indemnify eligible persons in
accordance with Article TENTH of the Articles of Incorporation.
ARTICLE VI
STOCK
6.1
Payment for Shares of Stock
. The Corporation shall not issue shares of stock
except for money paid, labor done or property actually received; provided, however, that shares may
be issued in consideration of valid bona fide antecedent debts. No note or obligation given by any
shareholder, whether secured by deed of trust, mortgage or otherwise, shall be considered as
payment of any part of any share or shares, and no loan of money for the purpose of such payment
shall be made by the Corporation.
6.2
Certificates for Shares of Stock
. The certificates for shares of stock of the
Corporation shall be numbered and shall be in such form as may be prescribed by the Board of
Directors in conformity with law. The issuance of shares shall be entered in the stock books of
the Corporation as they are issued. 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 the number of shares represented thereby. It shall be
signed by the President or a Vice President or, if permitted by law, the Chairman of the Board and
by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer of the
Corporation, and sealed with the seal of the Corporation. Any or all the signatures on such
certificate may be facsimiles and the seal may be facsimile, engraved or printed. In case any such
officer, transfer agent or registrar who has signed or whose facsimile signature has been placed
upon any such certificate shall have ceased to be such officer, transfer agent or registrar before
such certificate is issued, such certificate may nevertheless be issued by the Corporation with the
same effect as if such person were such officer, transfer agent or registrar at the date of issue.
6.3
Transfers of Shares Transfer Agent Registrar
. Transfers of shares of stock
shall be made on the stock record or transfer 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 book and other transfer records shall be in the
possession of the Secretary or of a transfer agent for 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 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 of the Corporation shall be the transfer agent of the Corporation
without the necessity of any formal action of the Board, and the Secretary, or any person
designated by him, shall perform all of the duties of such transfer agent.
6.4
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 70 days preceding the date of
any meeting of the shareholders, or the date of payment of any dividend, or the date for the
allotment of rights, or the date when any change or conversion or exchange of shares shall go into
effect; provided, however, that in lieu of closing the stock transfer books, the Board of Directors
may fix in advance a date, not exceeding 70 days preceding the date of any meeting of shareholders,
or the date for the payment of any dividend, or the date for the allotment of rights, or the date
when any change or conversion or exchange of shares shall go into effect, as a record date for the
determination of the shareholders entitled to notice of, and to vote at, any such meeting and any
adjournment thereof, or entitled to receive payment of any such dividend, or entitled to any such
allotment of rights, or entitled to exercise the rights in respect of any such change, conversion
or exchange of shares. In such case only the shareholders who are shareholders of record on the
date of closing of the transfer books or on the record date so fixed shall be entitled to notice
of, and to vote at, such meeting, and any adjournment thereof, or to receive payment of such
dividend, or to receive such allotment of rights, or to exercise such rights, as the case may be,
notwithstanding any transfer of any shares on the books of the Corporation after such date of
closing of the transfer books or such record date fixed as aforesaid.
6.5
Lost or Destroyed Certificates
. In case of the loss or destruction of any
certificate for shares of stock of the Corporation, another may be issued in its place upon proof
of such loss or destruction and upon the giving of a satisfactory bond of indemnity to the
Corporation and the transfer agent and registrar, if any, in such sum as the Board of Directors may
provide; provided, however, that a new certificate may be issued without requiring a bond when in
the judgment of the Board it is proper to do so.
6.6
Regulations
. The Board of Directors shall have power and authority to make all
such rules and regulations as it may deem expedient concerning the issue, transfer, conversion and
registration of certificates for shares of stock of the Corporation, not inconsistent with the laws
of the State of Missouri, the Articles of Incorporation or these Bylaws.
ARTICLE VII
CORPORATE FINANCE
7.1
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:
(a) determining what part of the consideration received for shares of the Corporation shall be
stated capital;
(b) increasing stated capital;
(c) transferring surplus to stated capital;
(d) determining the consideration to be received by the Corporation for its shares; and
(e) determining 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.
7.2
Dividends
.
(a) Dividends on the outstanding shares of the Corporation, subject to the provisions of the
Articles of Incorporation and of any applicable law, may be declared by the Board of Directors at
any meeting. Dividends may be paid in cash, in property or in shares of the Corporations stock.
(b) 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.
7.3
Creation of Reserves
. Before the 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 deems 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 any
other purpose deemed by the Board to be conducive to the interests of the Corporation, and the
Board may abolish any such reserve in the manner in which it was created.
ARTICLE VIII
GENERAL PROVISIONS
8.1
Fiscal Year
. The Board of Directors shall have power to 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 of the Corporation shall end each year on the date which the Corporation treated as the
close of its first fiscal year, until such time, if any, as the fiscal year shall be changed by the
Board of Directors.
8.2
Depositories
. The moneys of the Corporation shall be deposited in the name of the
Corporation in such bank or banks or other depositories as the Board of Directors shall designate,
and shall be drawn out only by check or draft signed by persons designated by resolution adopted by
the Board of Directors, except that the Board of Directors may delegate said powers in the manner
hereinafter provided in this Bylaw 8.2. The Board of Directors may by resolution authorize an
officer or officers of the Corporation to designate any bank or banks or other depositories in
which moneys of the Corporation may be deposited, and to designate the persons who may sign checks
or drafts on any particular account or accounts of the Corporation, whether created by direct
designation of the Board of Directors or by an authorized officer or officers as aforesaid.
8.3
Directors Annual Statement
. The Board of Directors may present at each annual
meeting, and when called for by vote of the shareholders shall present to any annual or special
meeting of the shareholders, a full and clear statement of the business and condition of the
Corporation.
8.4
Contracts with Officers or Directors or Their Affiliates
.
(a) No contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board or any committee
thereof which authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose, if:
(i) The material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or such committee, and the Board
of Directors or such committee in good faith authorized the contract or transaction by the
affirmative vote of a majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or
(ii) The material facts as to such persons relationship or interest and as to the contract or
transaction are disclosed or are known to the shareholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the shareholders; or
(iii) The contract or transaction is fair as to the Corporation as of the time it is
authorized or approved by the Board of Directors, a committee thereof, or the shareholders.
(b) Common or interested directors may be counted in determining the presence of a quorum at a
meeting of the Board of Directors or a committee which authorizes the contract or transaction.
8.5
Amendments
. The Bylaws of the Corporation may from time to time be altered,
amended or repealed, or new Bylaws may be adopted, in the manner provided in the Articles of
Incorporation, except as otherwise required by law.
8.6
Issuing Public Corporation; Control Share Acquisitions
. Unless the Articles of
Incorporation otherwise provide, this Corporation is an issuing public corporation for purposes
of Section 351.015 of The General and Business Corporation Law of Missouri and control share
acquisitions of the shares of this Corporation must be made in the manner provided by law.
8.7
Rules of Construction
. All words of the masculine gender in these Bylaws, unless
the context otherwise requires, shall be deemed and construed to include correlative words of the
feminine and neuter genders.
CERTIFICATE
The undersigned, secretary of HAWTHORN BANCSHARES, INC., a Missouri corporation; hereby
certifies that the foregoing Amended and Restated Bylaws are the Bylaws of the Corporation duly
adopted by the Board of Directors.
Dated: August 8, 2007.
HAWTHORN BANCSHARES, INC.
By:
/s/ Kathleen L. Bruegenhemke
3
TABLE OF CONTENTS
1.2 Corporate Offices
1.3 Books and Records
1.4 Inspection of Records
2.2 Annual Meetings
2.3 Special Meetings.
2.4 Consent of Shareholders in Lieu of Meeting
2.5 Notice; Waiver of Notice.
2.6 Presiding Officials
2.7 Business Which May be Transacted.
2.8 Quorum
2.9 Proxies
2.10 Voting.
2.11 Registered Shareholders Exceptions Stock Ownership Presumed
2.12 Shareholders Lists.
3.2 Classes
3.3 Powers of the Board
3.4 Offices
3.5 Meetings of the Newly Elected Board
3.6 Notice of Meetings; Waiver of Notice.
3.7 Meetings by Conference Telephone or Similar Communications Equipment
3.8 Action Without a Meeting
3.9 Quorum
3.10 Vacancies
3.11 Committees.
3.12 Compensation of Directors and Committee Members
3.13 Removal of Directors
3.14 Nomination of Directors and Presentation of Business at Shareholder Meetings.
3.15 Advisory Directors
4.2 Term of Office
4.3 Other Agents
4.4 Removal
4.5 Salaries and Compensation
4.6 Delegation of Authority to Hire, Discharge and Designate Duties
4.7 Chairman of the Board
4.8 President.
4.9 Vice Chairman of the Board
4.10 Senior Vice Presidents
4.11 Vice Presidents
4.12 Secretary.
4.13 Treasurer.
4.14 Duties of Officers May Be Delegated
6.2 Certificates for Shares of Stock
6.3 Transfers of Shares Transfer Agent Registrar
6.4 Closing of Transfer Books
6.5 Lost or Destroyed Certificates
6.6 Regulations
7.2 Dividends.
7.3 Creation of Reserves
8.2 Depositories
8.3 Directors Annual Statement
8.4 Contracts with Officers or Directors or Their Affiliates.
8.5 Amendments
8.6 Issuing Public Corporation; Control Share Acquisitions
8.7 Rules of Construction
Title: Senior Vice President and Secretary
Exhibit 99.1
Hawthorn Bancshares Announces 2
nd
Quarter Earnings
Jefferson City, MO
August 7, 2007
Hawthorn Bancshares of Jefferson City, MO (NASDAQ: HWBK), a financial services holding company, announced today second quarter earnings of $0.56 per diluted share, down 20% from diluted earnings per share of $0.70 a year ago.
Net income for the three months ended June 30, 2007 of $2,363,000 decreased $570,000 when compared to the second quarter of 2006.
For the six months ended June 30, 2007, Hawthorn Bancshares earned $1.11 per diluted share, down 17% from diluted earnings per share of $1.34 a year ago. Net income for the six months ended June 30, 2007 of $4,670,000 decreased $952,000 when compared to the first six months of 2006.
In commenting on earnings performance, Chairman & CEO James E. Smith said Significant efforts are underway this year to merge all of our subsidiary banks to a single platform under the newly branded Hawthorn Bank banner. I am very pleased with our entire staffs efforts in making our company unique in the crowded world of banking. We knew that consolidation related expenses were going to be sizable in 2007 and our current performance reflects not only a tightening net interest margin, but also higher salaries & employee benefit costs related to the Companys strategic growth plan and increased legal & professional fees associated with the consolidation.
To summarize the Companys performance for the six months ended June 30, 2007 compared to the same period in 2006, net interest income decreased $1,072,000 (6%) due to tightening of the net interest margin; non-interest income increased $1,098,000 (26%) due in large part to proceeds received from sale of two of the Companys charters; and other non-interest expense increased $1,810,000 (12%). The majority of the non-interest expense increase is attributed to implementation of the Companys strategic plan which included adding additional staff to execute key growth initiatives and legal & professional fees associated with the consolidation and rebranding effort.
For the three months ended June 30, 2007, return on average equity was 8.77% and return on average assets was 0.83% compared to 11.79% and 1.02% respectively for the same period in 2006. For the six months ended June 30, 2007, return on average equity was 8.87% and return on average assets was 0.83% compared to 11.47% and 0.99% respectively for the same period in 2006.
Comparing June 30, 2007 balances to December 31, 2006, total assets increased 1.5% to $1,160,108,000. Total loans grew 3.1% to $837,422,000, while investment securities decreased 6.6% to $177,214,000. Total deposits increased 1.9% to $917,158,000. During the same period, stockholders equity increased 2.5% to $107,574,000 or 9.3% of total assets.
About Hawthorn Bancshares
Hawthorn Bancshares, Inc., a multi-bank holding company headquartered in Lees Summit, Missouri, is the parent company of Hawthorn Bank of Clinton with locations in Springfield, Lees Summit, Branson, Windsor, Collins, Osceola and Warsaw, Belton, Drexel, Harrisonville, Independence and Raymore: and The Exchange National Bank of Jefferson City with locations in Columbia, California, Tipton and St. Robert.
Statements made in this press release that suggest Hawthorn Bancshares or managements intentions,
hopes, beliefs, expectations, or predictions of the future include forward-looking statements
within the meaning of Section 21E of the Securities and Exchange Act of 1934, as amended. It is
important to note that actual results could differ materially from those projected in such
forward-looking statements. Additional information concerning factors that could cause actual
results to differ materially from those projected in such forward-looking statements is contained
from time to time in the companys quarterly and annual reports filed with the Securities and
Exchange Commission.
Kathleen Bruegenhemke
Senior Vice President, Investor Relations
TEL: 573.761.6100 FAX: 573.761.6272
www.exchangebancshares.com
1
FINANCIAL SUMMARY
(unaudited)
June 30, 2007
December 31, 2006
Loans, net of allowance
for loan losses
$
828,311,575
$
803,297,381
Debt and equity securities
177,214,033
189,773,310
Total assets
1,160,108,036
1,142,711,897
Deposits
917,157,733
899,864,734
Stockholders equity
107,574,377
104,944,590
Three Months
Ended June 30, 2007
Ended June 30, 2006
Total interest income
$
18,137,172
$
17,929,821
Total interest expense
9,052,155
8,095,272
Net interest income
9,085,017
9,834,549
Provision for loan losses
154,216
310,500
Noninterest income
2,849,641
2,249,180
Noninterest expense
8,445,161
7,457,467
Income before taxes
3,335,281
4,315,762
Income taxes
972,253
1,382,577
Net income
2,363,028
2,933,185
Six Months
Ended June 30, 2007
Ended June 30, 2006
Total interest income
$
36,167,855
$
34,722,687
Total interest expense
17,947,138
15,429,592
Net interest income
18,220,717
19,293,095
Provision for loan losses
379,216
628,000
Noninterest income
5,373,210
4,275,091
Noninterest expense
16,579,142
14,769,059
Income before taxes
6,635,569
8,171,127
Income taxes
1,965,874
2,549,335
Net income
4,669,695
5,621,792
2
Exhibit 99.2
Hawthorn Bancshares Declares Quarterly Dividend of $0.21 per Share
Jefferson City, MO
August 9, 2007
Hawthorn Bancshares of Jefferson City, MO (NASDAQ: HWBK) announced today that its Board of Directors approved a quarterly cash dividend of 21 cents per share, payable October 1, 2007 to shareholders of record at the close of business on September 14, 2007.
In commenting on the Boards action, Chairman and CEO James E. Smith said, We are pleased to again demonstrate our financial strength through payment of this cash dividend.
About Hawthorn Bancshares
Hawthorn Bancshares, Inc., a multi-bank holding company headquartered in Lees Summit, Missouri, is the parent company of Hawthorn Bank of Clinton with locations in Springfield, Lees Summit, Branson, Windsor, Collins, Osceola and Warsaw, Belton, Drexel, Harrisonville, Independence and Raymore: and The Exchange National Bank of Jefferson City with locations in Columbia, California, Tipton and St. Robert.
Statements made in this press release that suggest Exchange National Bancshares or managements
intentions, hopes, beliefs, expectations, or predictions of the future include forward-looking
statements within the meaning of Section 21E of the Securities and Exchange Act of 1934, as
amended. It is important to note that actual results could differ materially from those projected
in such forward-looking statements. Additional information concerning factors that could cause
actual results to differ materially from those projected in such forward-looking statements is
contained from time to time in the companys quarterly and annual reports filed with the Securities
and Exchange Commission.
Kathleen Bruegenhemke
Senior Vice President, Investor Relations
TEL: 573.761.6100 FAX: 573.761.6272
www.exchangebancshares.com