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): | June 2, 2009 |
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 3.03 Material Modifications to Rights of Security Holders.
Shareholder Proposals and Nominations
On June 2, 2009, the Board of Directors of our Company, Hawthorn Bancshares, Inc., approved an amendment and restatement of our Company's Bylaws, effective immediately. As more fully described in Item 5.03 of this report, this amendment and restatement changed the advance notice requirements that the holders of our common stock must follow as a condition to either making a director nomination or proposing any other business at any annual or special meeting of our shareholders, among other changes to our Bylaws. The discussion provided in this Item is qualified in its entirety by reference to the disclosure set forth under Item 5.03, which is incorporated by reference into this Item 3.03.
Amended and Restated Bylaws
A copy of our Amended and Restated Bylaws, as well as a copy of our Amended and Restated Bylaws that has been marked to show the amendments made, are included as Exhibits 3.1 and 3.2, respectively, to this report and are incorporated by reference herein. The discussion provided in this Item is qualified in its entirety by reference to such Exhibits.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Advance Notice Provisions
On June 2, 2009, the Board of Directors of our Company, Hawthorn Bancshares, Inc., approved an amendment and restatement of our Company's Bylaws, effective immediately.
As a part of the amendment and restatement of our Company's Bylaws approved by our Board of Directors, Article III, Section 3.14, of our Bylaws was amended and restated to clarify and add new requirements to the advance notice requirements that the holders of our common stock must follow as a condition to either making a director nomination or proposing any other business at any annual or special meeting of our shareholders. Among other things, as a result of the amendments:
• Section 3.14(a)(iii) of our Amended and Restated Bylaws now provides the exclusive means for a shareholder to make nominations or submit other business at any meeting of our shareholders, except that Rule 14a-8 of Regulation 14A under the Securities Exchange Act of 1934, as amended, will govern proposals made under that Rule (which Rule provides its own procedural requirements).
• Sections 3.14(b)(i) and (ii) of our Amended and Restated Bylaws set forth the requirements, timing and information required to be provided to our Company about the shareholder proposing business or making a nomination, respectively, as well as the information required to be provided to our Company about any nominee for our Board of Directors made by such shareholder.
• Section 3.14(j) of our Amended and Restated Bylaws requires, among other things, that each person nominated by a shareholder for election or reelection as a director of our Company submit a written questionnaire with respect to the background and qualification of such person and of the person on whose behalf such person is being nominated.
• Subject to certain exceptions, director nominations or any other business cannot be brought before an annual meeting of shareholders unless such nomination or proposal is specified in the notice of the meeting or is otherwise brought before the meeting by or at the direction of our Board of Directors or by a shareholder entitled to vote who has delivered the required written notice to the Company's Secretary not less than 60 days or more than 90 days prior to the first anniversary of the preceding year's annual meeting. Such notice must comply with the requirements of Section 3.14 of our Amended and Restated Bylaws and any shareholder of our Company desiring to submit a proposal or director nomination should carefully review our Amended and Restated Bylaws to ensure compliance with the applicable provisions. Our Company reserves the right to reject, rule out of order, or take other appropriate action with respect to any nomination or proposal that does not comply with these and other applicable requirements.
Shareholder Nominations and Proposals for 2010 Annual Meeting
It is anticipated that our 2010 annual meeting of shareholders will be held on June 1, 2010. For a shareholder proposal to be considered for inclusion in our Company’s proxy statement for the annual meeting next year, our Company's Secretary must receive the written proposal at our principal executive offices no later than December 18, 2009. Each such proposal also must comply with SEC regulations under Rule 14a-8 regarding the inclusion of shareholder proposals in company-sponsored proxy materials. Proposals should be addressed to:
Hawthorn Bancshares, Inc.
132 East High Street
Jefferson City, MO 65101
Attention: Secretary
As a result of the amendment and restatement of our Company's Bylaws, for a shareholder proposal that is not intended to be included in our Company’s proxy statement under Rule 14a-8 with respect to our 2010 annual meeting of shareholders, the shareholder must provide the information required by our Company’s Amended and Restated Bylaws and give timely notice to our Company's Secretary in accordance with our Amended and Restated Bylaws, which, in general, require that the notice be received by the Secretary between:
• the close of business on March 4, 2010 (the 90th day prior to the first anniversary of the preceding year's annual meeting); and
• the close of business on April 3, 2010 (the 60th day prior to the first anniversary of the preceding year's annual meeting), unless,
the date of the shareholder meeting is moved more than 30 days before or after June 1, 2010 (the date contemplated in our proxy statement for our 2009 annual meeting), in which case notice of a shareholder proposal that is not intended to be included in our Company’s proxy statement under Rule 14a-8 must be received not later than the close of business on the later of 90 days in advance of such annual meeting or 10 days following the date on which public announcement of the date of the meeting is first made.
Our shareholders may propose director candidates for consideration by our Board’s Nominating and Corporate Governance Committee. Any such recommendations should include the nominee’s name and qualifications for Board membership and should be directed to our Company's Secretary at the address set forth above.
To nominate an individual for election at an annual shareholder meeting, the shareholder must give timely notice to our Company's Secretary in accordance with our Amended and Restated Bylaws, which, in general, require that the notice be received by the Secretary between:
• March 4, 2010 (the 90th day prior to the first anniversary of the preceding year's annual meeting); and
• the close of business on April 3, 2010 (the 60th day prior to the first anniversary of the preceding year's annual meeting), unless,
the date of the shareholder meeting is moved more than 30 days before or after June 1, 2010 (the date contemplated in our proxy statement for our 2009 annual meeting), in which case the nomination must be received not later than the close of business on the later of 90 days in advance of such annual meeting or 10 days following the date on which public announcement of the date of the meeting is first made.
Amended and Restated Bylaws
A copy of our Amended and Restated Bylaws, as well as a copy of our Amended and Restated Bylaws that has been marked to show the amendments made, are included as Exhibits 3.1 and 3.2, respectively, to this report and are incorporated by reference herein. The discussion provided in this Item is qualified in its entirety by reference to such Exhibits.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. Description
3.1 Amended and Restated Bylaws of Hawthorn Bancshares, Inc. (as adopted June 2, 2009).
3.2 Amended and Restated Bylaws of Hawthorn Bancshares, Inc. (as adopted June 2, 2009), marked to show the changes resulting from the amendment and restatement reported in this Current Report on Form 8 K.
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. | ||||
June 2, 2009 | By: |
James E. Smith
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Name: James E. Smith | ||||
Title: Chairman & CEO |
Exhibit Index
Exhibit No.
Description
AMENDED AND RESTATED BYLAWS
Blackline Copy - AMENDED AND RESTATED BYLAWS
Exhibit 3.1
AMENDED AND RESTATED BYLAWS
As adopted by the Board of Directors on June 2, 2009.
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
AMENDED AND RESTATED BYLAWS
OF
ARTICLE I
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
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 first
Tuesday 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 specified in
the Corporations notice of meeting 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
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 Articles of Incorporation.
3.14
Nomination of Directors and Presentation of Other Business at Shareholder
Meetings
.
(a) Nominations of persons for election to the Board of Directors and the proposal of other
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 of record who is entitled to vote at the meeting 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 has complied with the notice procedures set forth in this Bylaw 3.14 as to such
business or nomination. Notwithstanding anything in these Bylaw to the contrary, clause (iii) of
this Bylaw 3.14(a) shall provide the exclusive authority and means for a shareholder to make
nominations or submit other business (other than matters properly brought under Rule 14a-8 (or any
successor thereto) under the Securities Exchange Act of 1934, as amended (the Exchange Act) and
included in the Corporations notice of meeting) before an annual meeting of shareholders.
(b) Without qualification or exception, for any nominations or other business to be properly
brought before an annual meeting by a shareholder pursuant to Bylaw 3.14(a)(iii), the following
requirements must be satisfied:
(i) For any nominations to be properly brought before an annual meeting by a shareholder
pursuant to Bylaw 3.14(a)(iii), the shareholder must have given timely notice thereof, in proper
form pursuant to Bylaw 3.14(c), to the Secretary of the Corporation. To be timely, a shareholders
notice for nominations must be delivered to the Secretary of the Corporation at the principal
executive offices of the Corporation not earlier than the 90th day and not later than the close of
business on the 60th day prior to the first anniversary of the preceding years annual meeting;
provided, however, that in the event that no annual meeting of shareholders was held in the
previous year or the date of the annual meeting has been changed by more than 30 days from the date
contemplated at the time of the previous years proxy statement, notice by the shareholder to be
timely must be delivered not later than the close of business on the later of (A) the 90th day
prior to such annual meeting or (B) the 10th day following the date on which public announcement of
the date of such meeting is first made. Notwithstanding anything in this Bylaw 3.14 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 100 days prior to the
first anniversary of the preceding years annual meeting, a shareholders notice required by this
Bylaw 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.
(ii) For any business (other than the nomination of a director or directors) to be properly
brought before an annual meeting by a shareholder pursuant to Bylaw 3.14(a)(iii), the shareholder
must have given timely notice thereof, in proper form pursuant to Bylaw 3.14(c), to the Secretary
of the Corporation and such business that such shareholders proposes to bring before the meeting
must be a proper matter for shareholder action under The General and Business Corporation Law of
Missouri. To be timely, a shareholders notice for all such business (other than the nomination of
a director or directors) to be brought before the meeting must be delivered to the Secretary of the
Corporation at the principal executive offices of the Corporation not earlier than the 90th day and
not later than the close of business on the 60th day prior to the first anniversary of the
preceding years annual meeting; provided, however, that in the event that no annual meeting of
shareholders was held in the previous year or the date of the annual meeting has been changed by
more than 30 days from the date contemplated at the time of the previous years proxy statement,
notice by the shareholder to be timely must be so delivered not later than the close of business on
the later of (i) the 90th 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.
(c) To be in proper form, a shareholders notice pursuant to this Bylaw 3.14 (whether given
pursuant to Bylaw 3.14(b) or Bylaw 3.14(f)) shall be in writing and shall set forth: (i) the name
and address of such shareholder, as they appear on the Corporations books, and of the beneficial
owner, if any, on whose behalf the notice is given, and (ii) (A) the class or series and number of
shares of capital stock of the Corporation which are, directly or indirectly, owned beneficially
and of record by such shareholder and such beneficial owner, (B) any option, warrant, convertible
security, stock appreciation right, or similar right with an exercise or conversion privilege or a
settlement payment or mechanism at a price related to any class or series of shares of the
Corporation or with a value derived in whole or in part from the value of any class or series of
shares of capital stock of the Corporation, whether or not such instrument or right shall be
subject to settlement in the underlying class or series of capital stock of the Corporation or
otherwise (a Derivative Instrument) directly or indirectly owned beneficially by such shareholder
or beneficial owner and any other direct or indirect opportunity to profit or share in any profit
derived from any increase or decrease in the value of shares of capital stock of the Corporation,
(C) any proxy, contract, arrangement, understanding, or relationship pursuant to which such
shareholder or beneficial owner has a right to vote any shares of any security of the Company, (D)
any short interest in any security of the Company (for purposes of this Bylaw a person shall be
deemed to have a short interest in a security if such person directly or indirectly, through any
contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or
share in any profit derived from any decrease in the value of the subject security) directly or
indirectly owned beneficially by such shareholder or beneficial owner, (E) any rights to dividends
on the shares of capital stock of the Corporation owned beneficially by such shareholder or
beneficial owner that are separated or separable from the underlying shares of capital stock of the
Corporation, (F) any proportionate interest in shares of capital stock of the Corporation or
Derivative Instruments held, directly or indirectly, by a general or limited partnership in which
such shareholder or beneficial owner is a general partner or, directly or indirectly, beneficially
owns an interest in a general partner, and (G) any performance-related fees (other than an
asset-based fee) to which such shareholder or beneficial owner is entitled based on any increase or
decrease in the value of shares of capital stock of the Corporation or Derivative Instruments, if
any, as of the date of such notice, including without limitation any such interests held by members
of such shareholders immediate family sharing the same household (which information shall be
supplemented by such shareholder and beneficial owner, if any, not later than 10 days after the
record date for the meeting to disclose such ownership as of the record date), and (iii) any other
information relating to such shareholder and beneficial owner, if any, that would be required to be
disclosed in a proxy statement or other filings required to be made in connection with
solicitations of proxies for, as applicable, the proposal or the election of directors in a
contested election pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. In addition, (1) the requirements of Bylaw 3.14(d) must be satisfied if
the notice relates to any nominations to be brought before a meeting of shareholders and (2) the
requirements of Bylaw 3.14(e) must be satisfied if the notice relates to any business other than a
nomination of a director or directors to be brought before a meeting of shareholders.
(d) If a shareholders notice pursuant to this Bylaw 3.14 relates to the nomination of a
director or directors (as the case may be) such notice, in addition to satisfying Bylaw 3.14(c),
must set forth, as to each person whom the shareholder proposes to nominate for election or
reelection to the Board of Directors (i) a description of all direct and indirect compensation and
other material monetary agreements, arrangements and understandings during the past three years,
and any other material relationships, between or among such shareholder and beneficial owner, if
any, and their respective affiliates and associates, or others acting in concert therewith, on the
one hand, and each proposed nominee, and his or her respective affiliates and associates, or others
acting in concert therewith, on the other hand, including, without limitation all information that
would be required to be disclosed pursuant to Rule 404(a) (or any successor thereto) promulgated
under Regulation S-K if the shareholder making the nomination and the beneficial owner, if any, on
whose behalf the nomination is made, or any affiliate or associate thereof or person acting in
concert therewith, were the registrant for purposes of such rule and the nominee were a director
or executive officer of such registrant; and (ii) include a completed and signed questionnaire,
representation and agreement required by Bylaw 3.14(j). The Corporation may require any proposed
nominee to furnish such other information as may reasonably be required by the Corporation to
determine the eligibility of such proposed nominee to serve as an independent director of the
Corporation or that could be material to a reasonable shareholders understanding of the
independence, or lack thereof, of such nominee.
(e) If a shareholders notice pursuant to this Bylaw 3.14 relates to any business other than a
nomination of a director or directors that the shareholder proposes to bring before the meeting,
such notice, in addition to satisfying Bylaw 3.14(c), must set forth (i) a brief description of the
business desired to be brought before the meeting, the reasons for conducting such business at the
meeting and any material interest of such shareholder and beneficial owner, if any, in such
business, and (ii) a description of all agreements, arrangements and understandings between such
shareholder and beneficial owner, if any, and any other person or persons (including their names)
in connection with the proposal of such business by such shareholder.
(f) 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) subject to the prior determination of the Board of Directors that directors are
to be elected at such meeting, by any shareholder who is a shareholder of record at the time of the
giving of notice provided for in this Bylaw 3.14 and at the time of the special meeting, who is
entitled to vote for the election of Directors at the meeting and who complies with the notice
procedures set forth in the immediately succeeding sentence of this Bylaw 3.14(f). 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 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 10th day following the day on which public announcement is first made of the date
of the special meeting. In no event shall any adjournment or postponement of a special meeting or
the announcement thereof commence a new time period for the giving of a shareholders notice as
described above.
(g) 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.
(h) For purposes of this Bylaw 3.14, (i) affiliate and associate shall have the meanings
set forth in the Exchange Act, and (ii) 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.
(i) Notwithstanding the foregoing provisions of this Bylaw 3.14, (i) if any class of series of
capital stock entitles the holder thereof, voting separately by class or series, to elect one or
more directors at an annual or special meeting of shareholders, such directors shall be nominated
and elected pursuant to the terms of such class of series of stock; and (ii) 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 this 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 (or any
successor thereto) under the Exchange Act, such rule shall prevail.
(j) To be eligible to be a shareholder proposed nominee for election or reelection as a
director of the Corporation, a person must deliver (in accordance with the time periods prescribed
for delivery of notice under this Bylaw 3.14) to the Secretary at the principal executive offices
of the Corporation a written questionnaire with respect to the background and qualification of such
person and the background of any other person or entity on whose behalf the nomination is being
made (which questionnaire shall be provided by the Secretary upon written request) and a written
representation and agreement (in the form provided by the Secretary upon written request) that such
person (A) is not and will not become a party to (1) any agreement, arrangement or understanding
with, and has not given any commitment or assurance to, any person or entity as to how such person,
if elected as a director of the Corporation, will act or vote on any issue or question (a Voting
Commitment) that has not been disclosed to the Corporation or (2) any Voting Commitment that could
limit or interfere with such persons ability to comply, if elected as a director of the
Corporation, with such persons fiduciary duties under applicable law, (B) is not and will not
become a party to any agreement, arrangement or understanding with any person or entity other than
the Corporation with respect to any direct or indirect compensation, reimbursement or
indemnification in connection with service or action as a director that has not been disclosed
therein, and (C) if elected as a director of the Corporation, will comply with all applicable
publicly disclosed corporate governance, conflict of interest, confidentiality and stock ownership
and trading policies and guidelines of the Corporation.
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
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
may, unless prohibited by law, be delegated by the Board to 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
5.1
Indemnification, Generally
. The Corporation shall indemnify eligible persons in
accordance with Article TENTH of the Articles of Incorporation.
ARTICLE VI
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
Ownership of Stock
.
(a) Shares of the Corporations stock may be owned (i) in certificated form, in which the
shares are represented by physical certificates, or (ii) in uncertificated form, in which the
shares are held in book-entry form pursuant to a direct registration system without being
represented by a physical certificate. Each shareholder shall be entitled to have the shares of
the Corporations stock owned by such shareholder represented by one or more physical certificates,
recorded in book-entry pursuant to a direct registration system, or represented and recorded by a
combination of physical certificates and uncertificated book-entry, as specified by such
shareholder. No shares of the Corporations stock represented by physical certificate may be owned
in uncertificated form until such physical certificate is surrendered to the Corporation by the
person named in the stock certificate, or by his or her attorney lawfully constituted in writing.
Every holder of uncertificated shares is entitled to receive a statement of holdings as evidence of
share ownership.
(b) The issuance of shares of the Corporations stock 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 such shares are issued. With respect to
shares of the Corporations stock owned in certificated form, the certificates representing such
shares shall be numbered and shall be in such form as may be prescribed by the Board of Directors
in conformity with law. Each such 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 the
Corporations stock shall be made (i) in the case of shares in certificated form, by a transfer of
the stock certificate representing such shares, or (ii) in the case of shares in uncertificated
form, by electronic book-entry transfer pursuant to a direct registration system. Such transfers
of shares shall be made on the stock record or transfer books of the Corporation only by the person
named in the stock certificate for such shares or in whose name book-entry ownership of such shares
is recorded, as the case may be, or by his or her attorney lawfully constituted in writing, and, in
the case of shares in certificated form, only 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
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
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: June 2, 2009.
HAWTHORN BANCSHARES, INC.
By:
OF
HAWTHORN BANCSHARES, INC.
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 Other 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 Ownership 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
HAWTHORN BANCSHARES, INC.
OFFICES AND RECORDS
SHAREHOLDERS
BOARD OF DIRECTORS
OFFICERS
INDEMNIFICATION
STOCK
CORPORATE FINANCE
GENERAL PROVISIONS
Title: Senior Vice President and Secretary
Exhibit 3.2
AMENDED AND RESTATED BYLAWS
As adopted by the Board of Directors on October 30, 2007.
June 2, 2009.
Page
AMENDED AND RESTATED BYLAWS
ARTICLE I
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
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 first
Tuesday 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
specified
in the Corporations notice of meeting
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
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
Articles
of Incorporation.
3.14
Nomination of Directors and Presentation of
Other
Business at
Shareholder Meetings
.
(a) Nominations of persons for election to the Board of Directors and the proposal of
other
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
who is
entitled to vote at the meeting
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
has
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,
3.14 as to such business or nomination. Notwithstanding anything in these Bylaw to
the contrary, clause (iii) of this Bylaw 3.14(a) shall provide the exclusive authority and means
for a shareholder to make nominations or submit other business (other than matters properly brought
under Rule 14a-8 (or any successor thereto) under the Securities Exchange Act of 1934, as amended
(the Exchange Act) and included in the Corporations notice of meeting) before an annual meeting
of shareholders.
(b)
Without qualification or exception, for any nominations or other business to
be properly brought before an annual meeting by a shareholder pursuant to Bylaw 3.14(a)(iii), the
following requirements must be satisfied:
(i)
For any nominations to be properly brought before an annual meeting by a
shareholder pursuant to Bylaw 3.14(a)(iii),
the shareholder must have given timely notice
thereof in writing
, in proper form pursuant to Bylaw 3.14(c),
to the Secretary of the
Corporation. To be timely, a shareholders notice shall
for nominations must
be delivered
to the Secretary
of the Corporation
at the principal executive offices of the Corporation
not less than 60 days
earlier than the 90th day and not later than the close of business on the
60th day
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
no annual meeting of shareholders was
held in the previous year or
the date of the annual meeting is advanced
has been changed
by more than 30 days or delayed by more than 60 days from such anniversary date
from the date
contemplated at the time of the previous years proxy statement
, 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)
A) the 90th day
prior to such annual meeting
or (ii
B
) 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
directors
to be elected to the Board of Directors is increased and there is no
public announcement naming all of the nominees for Director
director
or specifying the size
of the increased Board of Directors made by the Corporation at least 40
100
days prior to
the first anniversary of the preceding years annual meeting, a shareholders notice
required
by this Bylaw
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
ii)
For any business (other than the nomination of a director or directors) to
be properly brought before an annual meeting by a shareholder pursuant to Bylaw 3.14(a)(iii), the
shareholder must have given timely notice thereof, in proper form pursuant to Bylaw 3.14(c), to the
Secretary of the Corporation and such business that such shareholders proposes to bring before the
meeting must be a proper matter for shareholder action under The General and Business Corporation
Law of Missouri. To be timely, a shareholders notice for all such business (other than the
nomination of a director or directors) to be brought before the meeting must be delivered to the
Secretary of the Corporation at the principal executive offices of the Corporation not earlier than
the 90th day and not later than the close of business on the 60th day prior to the first
anniversary of the preceding years annual meeting; provided, however, that in the event that no
annual meeting of shareholders was held in the previous year or the date of the annual meeting has
been changed by more than 30 days from the date contemplated at the time of the previous years
proxy statement, notice by the shareholder to be timely must be so delivered not later than the
close of business on the later of (i) the 90th 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.
(c)
To be in proper form, a shareholders notice pursuant to this Bylaw 3.14
(whether given pursuant to Bylaw 3.14(b) or Bylaw 3.14(f)) shall be in writing and shall set forth:
(i) the name and address of such shareholder, as they appear on the Corporations books, and of the
beneficial owner, if any, on whose behalf the notice is given, and (ii) (A) the class or series and
number of shares of capital stock of the Corporation which are, directly or indirectly, owned
beneficially and of record by such shareholder and such beneficial owner, (B) any option, warrant,
convertible security, stock appreciation right, or similar right with an exercise or conversion
privilege or a settlement payment or mechanism at a price related to any class or series of shares
of the Corporation or with a value derived in whole or in part from the value of any class or
series of shares of capital stock of the Corporation, whether or not such instrument or right shall
be subject to settlement in the underlying class or series of capital stock of the Corporation or
otherwise (a Derivative Instrument) directly or indirectly owned beneficially by such shareholder
or beneficial owner and any other direct or indirect opportunity to profit or share in any profit
derived from any increase or decrease in the value of shares of capital stock of the Corporation,
(C) any proxy, contract, arrangement, understanding, or relationship pursuant to which such
shareholder or beneficial owner has a right to vote any shares of any security of the Company, (D)
any short interest in any security of the Company (for purposes of this Bylaw a person shall be
deemed to have a short interest in a security if such person directly or indirectly, through any
contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or
share in any profit derived from any decrease in the value of the subject security) directly or
indirectly owned beneficially by such shareholder or beneficial owner, (E) any rights to dividends
on the shares of capital stock of the Corporation owned beneficially by such shareholder or
beneficial owner that are separated or separable from the underlying shares of capital stock of the
Corporation, (F) any proportionate interest in shares of capital stock of the Corporation or
Derivative Instruments held, directly or indirectly, by a general or limited partnership in which
such shareholder or beneficial owner is a general partner or, directly or indirectly, beneficially
owns an interest in a general partner, and (G) any performance-related fees (other than an
asset-based fee) to which such shareholder or beneficial owner is entitled based on any increase or
decrease in the value of shares of capital stock of the Corporation or Derivative Instruments, if
any, as of the date of such notice, including without limitation any such interests held by members
of such shareholders immediate family sharing the same household (which information shall be
supplemented by such shareholder and beneficial owner, if any, not later than 10 days after the
record date for the meeting to disclose such ownership as of the record date), and (iii) any other
information relating to such shareholder and beneficial owner, if any, that would be required to be
disclosed in a proxy statement or other filings required to be made in connection with
solicitations of proxies for, as applicable, the proposal or the election of directors in a
contested election pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. In addition, (1) the requirements of Bylaw 3.14(d) must be satisfied if
the notice relates to any nominations to be brought before a meeting of shareholders and (2) the
requirements of Bylaw 3.14(e) must be satisfied if the notice relates to any business other than a
nomination of a director or directors to be brought before a meeting of shareholders.
(d)
If a shareholders notice pursuant to this Bylaw 3.14 relates to the
nomination of a director or directors (as the case may be) such notice, in addition to satisfying
Bylaw 3.14(c), must set forth, as to each person whom the shareholder proposes to nominate for
election or reelection to the Board of Directors (i) a description of all direct and indirect
compensation and other material monetary agreements, arrangements and understandings during the
past three years, and any other material relationships, between or among such shareholder and
beneficial owner, if any, and their respective affiliates and associates, or others acting in
concert therewith, on the one hand, and each proposed nominee, and his or her respective affiliates
and associates, or others acting in concert therewith, on the other hand, including, without
limitation all information that would be required to be disclosed pursuant to Rule 404(a) (or any
successor thereto) promulgated under Regulation S-K if the shareholder making the nomination and
the beneficial owner, if any, on whose behalf the nomination is made, or any affiliate or associate
thereof or person acting in concert therewith, were the registrant for purposes of such rule and
the nominee were a director or executive officer of such registrant; and (ii) include a completed
and signed questionnaire, representation and agreement required by Bylaw 3.14(j). The Corporation
may require any proposed nominee to furnish such other information as may reasonably be required by
the Corporation to determine the eligibility of such proposed nominee to serve as an independent
director of the Corporation or that could be material to a reasonable shareholders understanding
of the independence, or lack thereof, of such nominee.
(e)
If a shareholders notice pursuant to this Bylaw 3.14 relates to any business
other than a nomination of a director or directors that the shareholder proposes to bring before
the meeting, such notice, in addition to satisfying Bylaw 3.14(c), must set forth (i) a brief
description of the business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest of such shareholder and beneficial owner, if
any, in such business, and (ii) a description of all agreements, arrangements and understandings
between such shareholder and beneficial owner, if any, and any other person or persons (including
their names) in connection with the proposal of such business by such shareholder.
(f
) 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
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)
subject to the prior
determination of the Board of Directors that directors are to be elected at such meeting,
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
3.14 and at the time of the special meeting, who is
entitled
to vote for the election of Directors at the meeting and who complies with the notice procedures
set forth in the last
immediately succeeding
sentence of this section (c) of this Bylaw
3.14.
3.14(f).
In the event the Corporation calls a special meeting of shareholders for the
purpose of electing one or more Directors
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.
. In no event shall any adjournment or
postponement of a special meeting or the announcement thereof commence a new time period for the
giving of a shareholders notice as described above.
(d
g
) 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
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
h
) For purposes of this Bylaw 3.14,
(i) affiliate and associate shall have
the meanings set forth in the Exchange Act, and (ii)
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
i
) Notwithstanding the foregoing provisions of this Bylaw 3.14,
(i) if any class
of series of capital stock entitles the holder thereof, voting separately by class or series, to
elect one or more directors at an annual or special meeting of shareholders, such directors shall
be nominated and elected pursuant to the terms of such class of series of stock; and (ii)
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
this
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
-8 (or any successor thereto)
under the Exchange Act, such rule shall
prevail.
(j)
To be eligible to be a shareholder proposed nominee for election or
reelection as a director of the Corporation, a person must deliver (in accordance with the time
periods prescribed for delivery of notice under this Bylaw 3.14) to the Secretary at the principal
executive offices of the Corporation a written questionnaire with respect to the background and
qualification of such person and the background of any other person or entity on whose behalf the
nomination is being made (which questionnaire shall be provided by the Secretary upon written
request) and a written representation and agreement (in the form provided by the Secretary upon
written request) that such person (A) is not and will not become a party to (1) any agreement,
arrangement or understanding with, and has not given any commitment or assurance to, any person or
entity as to how such person, if elected as a director of the Corporation, will act or vote on any
issue or question (a Voting Commitment) that has not been disclosed to the Corporation or (2) any
Voting Commitment that could limit or interfere with such persons ability to comply, if elected as
a director of the Corporation, with such persons fiduciary duties under applicable law, (B) is not
and will not become a party to any agreement, arrangement or understanding with any person or
entity other than the Corporation with respect to any direct or indirect compensation,
reimbursement or indemnification in connection with service or action as a director that has not
been disclosed therein, and (C) if elected as a director of the Corporation, will comply with all
applicable publicly disclosed corporate governance, conflict of interest, confidentiality and stock
ownership and trading policies and guidelines of the Corporation.
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
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
may, unless prohibited by law, be delegated by the Board to 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
5.1
Indemnification, Generally
. The Corporation shall indemnify eligible persons in
accordance with Article TENTH of the Articles of Incorporation.
ARTICLE VI
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
Ownership of Stock
.
(a) Shares of the Corporations stock may be owned (i) in certificated form, in which the
shares are represented by physical certificates, or (ii) in uncertificated form, in which the
shares are held in book-entry form pursuant to a direct registration system without being
represented by a physical certificate. Each shareholder shall be entitled to have the shares of
the Corporations stock owned by such shareholder represented by one or more physical certificates,
recorded in book-entry pursuant to a direct registration system, or represented and recorded by a
combination of physical certificates and uncertificated book-entry, as specified by such
shareholder. No shares of the Corporations stock represented by physical certificate may be owned
in uncertificated form until such physical certificate is surrendered to the Corporation by the
person named in the stock certificate, or by his or her attorney lawfully constituted in writing.
Every holder of uncertificated shares is entitled to receive a statement of holdings as evidence of
share ownership.
(b) The issuance of shares of the Corporations stock 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 such shares are issued. With respect to
shares of the Corporations stock owned in certificated form, the certificates representing such
shares shall be numbered and shall be in such form as may be prescribed by the Board of Directors
in conformity with law. Each such 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 the
Corporations stock shall be made (i) in the case of shares in certificated form, by a transfer of
the stock certificate representing such shares, or (ii) in the case of shares in uncertificated
form, by electronic book-entry transfer pursuant to a direct registration system. Such transfers
of shares shall be made on the stock record or transfer books of the Corporation only by the person
named in the stock certificate for such shares or in whose name book-entry ownership of such shares
is recorded, as the case may be, or by his or her attorney lawfully constituted in writing, and, in
the case of shares in certificated form, only 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
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
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: October 30, 2007.
June 2, 2009.
HAWTHORN BANCSHARES, INC.
By:
OF
HAWTHORN BANCSHARES, INC.
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OF
HAWTHORN BANCSHARES, INC.
OFFICES AND RECORDS
SHAREHOLDERS
BOARD OF DIRECTORS
OFFICERS
INDEMNIFICATION
STOCK
CORPORATE FINANCE
GENERAL PROVISIONS
Title: Senior Vice President and Secretary