SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report: April 15, 1998
Date of earliest event reported: April 1, 1998
NASB FINANCIAL, INC.
(Exact Name of Registrant as Specified in Its Charter)
MISSOURI
(State or Other Jurisdiction of Incorporation)
0- 43-1805201
(Commission File Number) (I. R. S, Employer Identification No.)
12498 South 71 Highway
Grandview, Missouri 64030
(Address of Principal Executive offices)(Zip Code)
(816) 765-2200
(Registrant's Telephone Number, Including Area Code)
<PAGE>
ITEM 5. OTHER EVENTS.
On April 1, 1998 (the "Effective Date"), NASB Financial, Inc., a
Missouri general business corporation, ("NASB Financial"), became a bank
holding company in accordance with the terms of an Agreement and Plan of
Merger (the "Merger Agreement") by and among NASB Financial, North
American Savings Bank, F.S.B., a federally chartered stock savings bank
(the "Bank") and NASB Interim Savings Bank, F.S.B. ("Interim Bank"), a
federally chartered stock savings bank and a wholly-owned subsidiary of
NASB Financial.
Pursuant to the Merger Agreement, on the Effective Date: (1) the
Bank merged with and into Interim Bank (the "Merger") with Interim Bank
being the surviving bank ("Surviving Bank"), (2) the Surviving Bank was
renamed "North American Savings Bank, F.S.B.", (3) each share of common
stock, par value $1.00 per share of the Bank ("Bank Stock"), was
exchanged for one share of common stock, par value $1.00 per share of
NASB Financial ("Holding Company Stock"), and (4) each outstanding
option to purchase shares of Bank Stock was exchanged for an option to
purchase an equal number of shares of Holding Company Stock. As a
result of the Merger, the shareholders of the Bank became the
shareholders of NASB Financial. The Merger is intended to be a tax-free
reorganization under the Internal Revenue Code of 1986, as amended, and
is being accounted for under the pooling-of-interests method of
accounting.
Prior to consummation of the Merger, the Bank was subject to the
information, periodic reporting and proxy statement requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and,
in accordance therewith, filed reports, proxy statements and other
information with Office of Thrift Supervision (the "OTS"). Pursuant to
Rule 12g-3 of the rules and regulations promulgated under the Exchange
Act by the Securities and Exchange Commission (the "Commission"), on the
Effective Date, (i) the shares of Holding Company Stock issued in
connection with the Merger were automatically registered under the
Exchange Act, and (ii.) NASB Financial automatically succeeded to the
information, reporting, and proxy statement requirements of the Bank
under the Exchange Act, Filings made by NASB Financial under the
Exchange Act will be made with the Commission rather than the OTS. The
Bank's reporting obligations under the Exchange Act ended on the
Effective Date when NASB Financial's reporting obligations began. The
Holding Company Stock has been accepted for listing and is quoted on the
National Association of Security Dealers Automated Quotation system
under the symbol, "NASB."
<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements of Businesses Acquired.
Not applicable.
(b) Pro Forma Financial Information.
Not applicable.
(c) Exhibits.
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION METHOD OF
FILING
- ------------------------------------------------------------------------
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<C> <S> <C>
2 Agreement and Plan of Merger by and Filed
herewith
among North American Savings Bank, F.S.B.,
NASB Interim Savings Bank, F.S.B., and
NASB Financial, inc.
3.1 Articles of Incorporation of NASB Filed
herewith
Financial, Inc.
3.2 Bylaws of NASB Financial, Inc. Filed
herewith
</TABLE
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934. the registrant has duly caused this report as amended to be signed
on its behalf by the undersigned hereunto duly authorized.
</TABLE>
<TABLE>
<S> <C>
(REGISTRANT) NASB FINANCIAL, INC.
By (Signature) /s/ David H. Hancock
(Name and Title) David H. Hancock
(Date) April 10, 1998
</TABLE>
EXHIBIT 2
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (hereinafter the "Merger
Agreement") is made and entered into as of the date last below
written, by and among NASB FINANCIAL, INC., a Missouri general
business corporation (hereinafter "Holding Company"), NORTH AMERICAN
SAVINGS BANK, F.S.B., a federally chartered stock savings bank
(hereinafter "NASB") and NASB INTERIM SAVINGS BANK, F.S.B., a
federally chartered stock savings bank formed solely to facilitate
this transaction (hereinafter "Interim Association"), all of which are
sometimes hereinafter collectively referred to as the "Constituent
Corporations."
WITNESSETH:
WHEREAS, NASB has for many years operated as a financial
institution with its principal office in
Grandview, Missouri; and
WHEREAS, Interim Association is a recently formed federally
chartered stock savings bank with its principal office in Grandview,
Missouri; and
WHEREAS, the merger of NASB into Interim Association (both of
which are hereinafter collectively referred to as the "Merging Savings
Banks") will provide a means whereby all of the shares of the
surviving savings bank (hereinafter sometimes referred to as the
"Surviving Savings Bank") would be owned by Holding Company and
whereby the shareholders of NASB would receive shares of Holding
Company in exchange for their shares of NASB, thereby allowing the
resulting organization to avail itself of the advantages of holding
company/wholly-owned operating subsidiary status, as well as other
advantages; and
WHEREAS, the Boards of Directors of each of the Constituent
Corporations, each by a unanimous vote of the entire Board, have
determined that the proposed merger of NASB into Interim Association
in such a manner whereby the Surviving Savings Bank would become a
wholly-owned subsidiary of Holding Company would be in the best
interests of their respective Constituent Corporation and its
shareholders, and have, therefore, approved this Agreement and
authorized its execution.
NOW, THEREFORE, for and in consideration of the premises and of
the mutual covenants and promises herein contained, it is hereby
agreed by and among the Constituent Corporations as follows:
PRESENT STATUS OF CONSTITUENT CORPORATION
Each of the Constituent Corporations represents to the others
that the information set forth below currently reflects the current
status of its capital structure and of the other matters represented.
NASB was formed in 1927 as a Missouri Chartered Mutual Savings
and Loan Association head-quartered in the Kansas City, and became a
member of the Federal Home Loan Bank of Des Moines in 1940. In 1985,
NASB converted from a Missouri Chartered Mutual Association to a
Missouri Chartered Stock Association; and, in 1992, was converted from
a state-chartered capital stock savings and loan association to a
federally-chartered stock savings bank. NASB's present authorized
capital consists of 12,500,000 shares of common stock, $1.00 par value
per share, and 7,500,000 shares of serial preferred stock, $1.00 par
value per share, of which, as of December 31, 1997, 2,239,672 shares
of common stock were issued and outstanding and zero shares of serial
preferred stock were issued and outstanding, making the total
outstanding capital stock on NASB's books and records as of such date
$2,239,672.00. As of December 31, 1997, NASB had additional paid-in
capital of $9,314,608 and retained earnings of approximately
$50,750,000.
Interim Association is being organized as an interim federal
savings bank pursuant to the banking laws of the United States solely
for the purposes of facilitating the transactions hereunder.
Holding Company was incorporated pursuant to the general
corporation laws of the State of Missouri. Its presently authorized
capital consists of 3,000,000 shares of common stock, $1.00 par value
per share. Holding Company is validly existing and in good standing
under the laws of the State of Missouri. Holding Company has issued
50,000 shares of common stock to NASB as initial capital.
ACTIONS AFTER EXECUTION OF MERGER AGREEMENT
As promptly as practicable following the execution of this Merger
Agreement, the Constituent Corporations shall commence to take such
actions as are reasonable and necessary to fulfill the undertakings,
conditions and objectives of this Agreement. Each agrees to continue
to diligently pursue these objectives until such time as the
conditions precedent are fulfilled and the transactions contemplated
hereunder are consummated, or until such time as it is reasonably
determined that any of the conditions precedent set forth herein
cannot be fulfilled and will not be waived by the party entitled to
the benefit thereof, or this Merger Agreement is otherwise terminated
as provided herein.
EFFECTIVE TIME OF MERGER
At the Effective Time of the merger of NASB and Interim
Association, the separate existence of NASB shall cease and NASB shall
be merged with and into Interim Association, which shall be deemed the
"receiving savings bank" in the merger and which is otherwise referred
to herein as the "Surviving Savings Bank."
The merger of NASB and Interim Association shall be deemed
effective when there are filed with the Office of Thrift Supervision,
and with the Secretary of each of NASB and Interim Association, those
documents and certificates required pursuant to the laws of the United
States. The time when this merger is deemed effective shall be the
"Effective Time" of the merger for purposes of this Merger Agreement.
EFFECT OF MERGER
As of the Effective Time, the Surviving Savings Bank shall, by
operation of law and without other transfer, succeed to all and
singular of the assets, capital, rights, privileges and franchises,
and the rights, title and interests in and to all property of any kind
whatsoever, whether real or personal, tangible or intangible, and
things in action, and every right privilege, interest or asset of
conceivable value or benefit then existing to which either of the
Merging Savings Banks shall be entitled at law or in equity, and all
of the foregoing shall be fully and finally and without any right of
reversion transferred to and vested in the Surviving Savings Bank
without further act or deed. The Surviving Savings Bank shall have
and hold the same in its own corporate right as fully as the same was
possessed and held by either of the Merging Savings Banks from which
the rights were transferred by operation of the applicable provisions
of the laws of the United States.
The rights, obligations and relations of either of the Merging
Savings Banks in respect to any person, creditor, or depositor shall
remain unimpaired; and the Surviving Savings Bank shall, as of the
Effective Time, succeed to all such relations, obligations, powers,
and liabilities, and shall execute and perform all duties in relation
thereof in the same manner as though it had itself assumed or been
clothed with the relation, or had itself incurred the obligation or
liability; and the liabilities and obligations to creditors of any of
the Merging Savings Banks shall not be impaired by the merger; nor
shall any obligation or liability of any stockholder of any of the
Constituent Corporations be affected by the merger, but their
obligations and liabilities shall continue as fully, and to the same
extent, as existed before the merger.
The Surviving Savings Bank shall be considered the same business
and corporate entity us both of NASB and Interim Association. Any
reference to either NASB or Interim Association in any writing,
whether executed or taking effect before or after the Effective Time,
shall be deemed a reference to the Surviving Savings Bank if not
inconsistent with the other provisions of such writing.
THE SURVIVING SAVINGS BANK
The name of the Surviving Savings Bank shall be "North American
Savings Bank, F.S.B."
The charter of the Surviving Savings Bank shall be the same as
the charter of NASB as of the Effective Time unless and until amended
by proper action of the stockholders of the Surviving Savings Bank.
The main office of the Surviving Savings Bank shall be located at
12498 South 71 Highway, Grandview, Missouri 64030.
The by-laws of the Surviving Savings Bank shall be the same as
the by-laws of NASB as of the Effective
Time unless and until altered and amended by proper action of the
Surviving Savings Bank.
The officers and directors of the Surviving Savings Bank after
the Effective Time shall be the same as the officers and directors of
NASB immediately prior to the Effective Time.
CONVERSION AND EXCHANGE OF NASB SECURITIES AND HOLDING COMPANY
SECURITIES
The manner in which the merger hereunder shall be effected with
respect to the shareholders of NASB shall be as follows:
All of the shares of the $1.00 par value common stock of NASB
outstanding immediately prior to the Effective Time, shall be deemed
canceled as of the Effective Time, and the holders of all such shares
shall have no further rights to participate in any manner as a
shareholder of the Surviving Savings Bank, including specifically, no
right to participate in any dividend payments made by the Surviving
Savings Bank after the Effective Time.
Each holder of record of the $1.00 par value common stock of NASB
immediately prior to the Effective Time shall be entitled to receive
one share of $1.00 par value common stock of Holding Company for each
share of common stock of NASB held by such holder of record, with the
specific exception of those NASB shareholders who elect to exercise
their appraisal rights in lieu of the receipt of Holding Company
shares. Issuance of the Holding Company common stock due each such
former NASB shareholder shall be made by Holding Company upon receipt
of any and all certificates, duly endorsed, evidencing the shares of $
1.00 par value common stock of NASB that were canceled as of the
Effective Time as aforesaid.
Each holder of an option to purchase shares of NASB common stock
shall be entitled to receive an option to purchase an equal number of
common shares of Holding Company, and the option to purchase NASB
common stock shall be deemed canceled.
The shares of Holding Company common stock held by NASB
immediately prior to the Effective Time shall be deemed canceled as of
the Effective Time.
Any amounts that are finally determined to be due to NASB
shareholders pursuant to statutory appraisal rights effectively
exercised by them shall be paid by Holding Company.
In the event that any appraisal rights proceedings are not
prosecuted to a conclusion, or are dismissed for any other reason--all
without payment or any other action required to be taken by any of the
Constituent Corporations--then, and in that event, the NASB
shareholder initially exercising appraisal rights shall be entitled to
receive one share of $1.00 par value common stock of Holding Company
for each outstanding share of $ 1.00 par value common stock of NASB
held of record by such shareholder as of the Effective Time, subject,
however, to the provisions of the section hereof entitled "Conversion
and Exchange of NASB Shares" with respect to payment of the amount
due.
CONVERSION AND EXCHANGE OF INTERIM ASSOCIATION SHARES
The manner in which the merger hereunder shall be effected with
respect to the shareholders of Interim Association shall be as
follows:
All of the shares of $ 1.00 par value common stock of
Interim Bank held by the Holding Company as of the Effective Time
shall be deemed canceled.
The Holding Company shall receive 2,243,273 shares of $1.00
par value common stock of Surviving Savings Bank as of the
Effective Time.
CAPITAL OF SURVIVING SAVINGS BANK
At the Effective Time, the capital, paid in capital and retained
earnings of the Surviving Savings Bank shall be equal to the capital,
paid-in capital and retained earnings of NASB immediately prior to the
Effective Time.
ACCOUNTING MATTERS
The assets and liabilities of the Merging Savings Banks as of the
Effective Time shall be taken up on the books of the Surviving Savings
Bank at the amounts at which they shall be carried at that time on the
books of the respective Merging Savings Banks with any appropriate
adjustments as may be paid in accordance with generally accepted
accounting principles.
The undivided profits of the Surviving Savings Bank after the
merger shall be available to be used for any legal purpose for which
undivided profits may ordinarily be used.
LIABILITY FOR CASH PAYMENTS
The Holding Company shall assume the liability of the Surviving
Savings Bank to pay cash to shareholders who shall have duly elected
to exercise their statutory appraisal rights. Any cash required to be
paid pursuant to this Agreement may be paid by delivering to the
person entitled to such payment a check of the Holding Company or
other "next-day" funds, and no interest shall be payable on any cash
required to be paid pursuant hereto, unless otherwise required by law.
CONDITIONS PRECEDENT
The fulfillment of all of the conditions set forth below (or if
modified, then the fulfillment as modified) or the waiver thereof (in
the manner provided in the section hereof entitled "Waivers,
Modifications") shall be required before any of the parties to this
Merger Agreement shall be bound to consummate the transactions
described herein.
(a) The approval of this Merger Agreement and the transactions
hereunder shall have been certified by the Office of Thrift
Supervision, and the Merging Savings Banks shall have received the
requisite approvals from their respective shareholders.
(b) The Constituent Corporations shall have received an opinion
from tax counsel or a certified public accountant, in form and
substance satisfactory to
the Constituent Corporations and their Counsel, with respect to the
tax consequences of the transactions contemplated by this Merger
Agreement.
(c) Any and all registrations, qualifications, permits, and/or
licenses required under state and federal securities laws (to the
extent applicable) in connection with the issuance of securities of
the Surviving Savings Bank and Holding Company (if any) shall have
been duly obtained.
(d) Any and all other actions, consents, or approvals,
governmental or otherwise, which in the opinion of Counsel for the
Holding Company are necessary in order to complete the transactions
contemplated by this Merger Agreement (including, without limitation,
those things necessary to permit or enable the Surviving Savings Bank
upon or after the merger to conduct any part or all of its business
and activities in the manner in which such activities and business
have been conducted by NASB up until the time of the merger) shall
have been duly obtained.
(e) No material change in the corporate status, business,
operations, or financial conditions of any of the Constituent
Corporations shall have occurred (other than changes in the ordinary
course of business, and other than losses covered by insurance) which
change is materially adverse to the transactions contemplated herein,
taken as a whole; and no event or condition of any character shall
have occurred or arisen since the date of execution hereof which shall
materially and adversely affect the corporate status, businesses,
operations or financial conditions of the Constituent Corporations,
taken as a whole.
(f) None of the Boards of Directors of NASB, Interim Association
or Holding Company has determined that in its opinion it is unwise to
proceed with the transactions contemplated hereby by virtue of. (a)
the number of shares of capital stock of NASB not voted in favor of or
voted against the merger, or in respect of which written notice is
given purporting to dissent from the merger, or (b) the institution,
or threat of institution, of any action, suit, proceeding, or claim
relating to the proposed merger transaction; or (c) any other material
reason based upon an informed analysis of the facts and circumstances
at hand.
WAIVERS, MODIFICATIONS
Any of the terms or conditions of this Agreement, unless
specifically provided otherwise herein, may be modified or waived, at
any time before the Effective Time, by the party which is, or the
shareholders of which are, entitled to the benefit of such term or
condition upon the authority of the Board of Directors of such party,
provided that any such modification or waiver shall not, in the
judgment of the Board of Directors any other affected party,
substantially affect in a material or adverse way the benefits of such
party or its shareholders intended under this Merger Agreement.
TERMINATION
This Agreement and the transactions contemplated herein may be
terminated prior to the Effective Time in any of the following
manners:
By mutual consent of the Boards of Directors of all of the
Constituent Corporations.
By the Board of Directors of any one or more of the
Constituent Corporations if the merger and other transactions
contemplated hereunder shall not have been consummated within 180
days after the execution of this Agreement, unless such failure
of consummation shall be due to the default of the party seeking
to terminate; but no termination by any party in accordance with
this subparagraph shall relieve any other party of any liability
by reason of any default hereunder, or any misrepresentation, or
breach of any warranty made herein, or pursuant hereto.
By the Board of Directors of NASB or the Board of Directors
of Holding Company if either or both reasonably concludes that it
is more likely than not that claims for appraisal and similar
rights of stockholders of NASB will be asserted in respect of the
merger by holders of more than ten percent (10%) of the
outstanding capital stock of NASB (immediately prior to the
Effective Time of the merger).
By the Board of Directors of any of the Constituent
Corporations if it determines that it is otherwise unwise to
proceed for one of the reasons mentioned in subparagraph (f) of
that section hereof entitled "Conditions Precedent."
By any party to this Agreement giving notice in writing to
the other parties in the event that another party is deemed in
Actual Default (as defined in the section hereof entitled "Actual
Default") under this Agreement.
ACTUAL DEFAULT
In the event that any part7y hereto shall consider any other
party to be in default or to have breached any of the terms of this
Agreement, notice stating with particularity the manner in which such
default is claimed shall be given in writing to the alleged defaulting
or breaching party. In such event, the alleged defaulting or
breaching party shall have twenty (20) days to cure such default or
breach before being deemed in Actual Default under this Agreement.
The giving of any such notice shall not prevent the alleged defaulting
party from establishing that, in fact, no breach or default did occur.
NOTICES
Any notice required or permitted in connection with this
Agreement shall be in writing. Any such notice may be transmitted by
mailing the same by certified or registered mail, postage prepaid, and
shall be deemed given on the day following the day deposited in the
United States mail, postage prepaid. Such notices shall be addressed
to:
North American Savings Bank, F.S.B., 12498 South 71 Highway,
Grandview, Missouri 64030 or such other place as its principal
office may later be located;
NASB Interim Savings Bank, F.S.B., 12498 South 71 Highway,
Grandview, Missouri 64030 or such other place as its principal
office may later be located;
NASB Financial, Inc., 12498 South 71 Highway, Grandview, Missouri
64030 or such other place as its principal office may later be
located.
Any such notice may also be given by personal delivery to the
president or vice president of any party; and in such event, notice
shall be deemed to have been given at the time of personal delivery.
GENERAL PROVISIONS
Any and all representations, warranties, covenants, and
agreements contained herein shall survive the consummation of the
transactions contemplated hereunder.
This Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors and assigns.
This Agreement shall be governed by and in accordance with the
internal laws of the State of Missouri.
This Agreement is the entire and only statement of the agreements
and understandings of the parties. It supersedes any and all pre-
existing agreements and understandings.
This Agreement may be amended by the parties hereto, by or
pursuant to action taken by their respective boards of directors, at
any time before or after approval hereof by the shareholders, but,
after any such approval, no amendment shall be made which changes the
per share consideration to be received by the shareholders or which in
any way materially adversely affects the rights of such shareholders,
without the further approval of the shareholders. This Agreement may
not be amended except by an instrument in writing signed on behalf of
each of the parties hereto.
The section titles appearing herein are for convenience of
reference only and shall not be construed to modify, limit, or define
the text of this Agreement.
This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of such counterparts
shall constitute but one and the same agreement.
<PAGE>
IN WITNESS WHEREOF, the Constituent Corporations have caused this
Agreement to be executed by their duly authorized officers as of the
1st day of April 1998.
NASB: NORTH AMERICAN SAVINGS BANK, F.S.B.
By: ____________________________________________
ATTEST:
By: ____________________________________________
INTERIM ASSOCIATION: NASB INTERIM SAVINGS BANK, F.S.B.
By: ____________________________________________
ATTEST:
By: ____________________________________________
HOLDING COMPANY: NASB FINANCIAL, INC.
By: ____________________________________________
ATTEST:
By: ____________________________________________
EXHIBIT 3.1
ARTICLES OF INCORPORATION
OF
NASB FINANCIAL, INC.
The undersigned natural person of the age of eighteen (18) years or
more for the purpose of forming a Corporation under The General and
Business Corporation Law of Missouri hereby adopts the following
Articles of Incorporation:
ARTICLE ONE
The name of the Corporation is NASB Financial, Inc.
ARTICLE TWO
The address, including street and number, if any, of the
Corporation's initial registered office in this State is 12498 South 71
Highway, Grandview, Missouri 64030, and the name of its initial
registered agent at such address is David H. Hancock.
ARTICLE THREE
The aggregate number of shares which the Corporation shall have
authority to issue shall be 3,000,000 SHARES, which shall have a par
value of ONE DOLLAR ($1.00) each, amounting in the aggregate to THREE
MILLION DOLLARS ($3,000,000.00), and all of said shares shall be COMMON
SHARES.
ARTICLE FOUR
The extent to which the preemptive rights of shareholders to
acquire additional shares are granted, limited or denied is as follows:
No holder of any stock of the Corporation shall be entitled, as a matter
of right, to purchase, subscribe for, or otherwise acquire any new or
additional shares of stock of the Corporation of any class, or any
options or warrants to purchase, subscribe for or otherwise acquire any
such new or additional shares, or any shares, bonds, notes, debentures,
or other securities convertible into or carrying options or warrants to
purchase, subscribe for or otherwise acquire any such new or additional
shares.
ARTICLE FIVE
The name and place of residence of each incorporation is as
follows:
Joseph T. Porter, Jr.
1531 Country Bend Drive
St. Charles, Missouri 63303
ARTICLE SIX
The number of Directors to constitute the first Board of Directors
is seven (7). Thereafter, the number of Directors shall be fixed by or
in the manner provided for in the Bylaws of the Corporation. Any
changes in the number of Directors will be reported to the Secretary of
State within thirty (30) calendar days after any such change.
In all elections of Directors of this Corporation, each shareholder
shall have the right to cast as many votes as shall equal (x) the number
of such shares held by him multiplied by (y) the number of Directors to
be elected, and he may cast all of such votes for a single Director or
may distribute them among the number of Directors to be elected, or any
two (2) or more of them, as such shareholder may deem fit.
ARTICLE SEVEN
The duration of the Corporation is perpetual.
ARTICLE EIGHT
The corporation is formed for the following PURPOSES and PO)WERS,
to-wit:
(A) To purchase, acquire, take, receive, subscribe for, loan,
hold, vote, use, sell. mortgage or pledge or otherwise deal in any
personal property, tangible or intangible, including shares of stock or
obligations issued by a federally charted stock savings bank, and
including all aspects thereof and all acts and actions incidental
thereto.
(B) To buy, sell, procure, franchise, produce, manufacture and
dispose of all kinds of goods, wares, merchandise, commodities,
machinery, tools, supplies and products, and generally to engage in and
conduct any form of service, manufacturing, or mercantile enterprise not
contrary to law.
(C) To apply for, secure, acquire by assignment, transfer,
purchase or otherwise, and to exercise, carry out and enjoy any charter,
license, patent, copyright, power, authority, franchise, concession,
rights or privileges, which any government or any corporation or other
public body may be empowered to grant; and to pay for, aid in and
contribute toward carrying the same into effect and to appropriate any
of the Corporation's shares of stock, bonds and assets to defray the
necessary costs, charges and expenses thereof.
(D) To borrow and loan money with or without security and to
issue, sell, or pledge bonds, promissory notes, debentures and other
obligations and evidences of indebtedness secured or unsecured.
(E) To contract with any person, firm, corporation, association or
entity.
(F) To acquire the goodwill, rights, and property and to undertake
the whole or any part of the assets or liabilities of any person, firm,
association or corporation, to pay for the same in cash, the stock of
this Corporation, bonds or otherwise; to hold or in any manner to
dispose of the whole or any part of the property so purchased; to
conduct in any lawful manner the whole or any part of any business so
acquired, and to exercise all the powers necessary or convenient in and
about the conduct and management of such business.
(G) To purchase, hold, sell, assign, transfer, mortgage, pledge,
or otherwise hold and possess or otherwise dispose of, shares of capital
stock of, or any bonds, securities, or evidence of indebtedness created
by any other corporation or corporations of this state or any other
state, country, nation or government, and while owner of said stock to
exercise all the rights, power, and privileges of ownership including
the right to vote thereon.
(H) To purchase, acquire, use, lend, lease or hold, improve,
operate, hypothecate, mortgage, sell or convey, and otherwise deal in
and dispose of property of all kinds, both real and personal, including
patents and patent rights from the United States and/or foreign
countries, license privileges, inventions, franchises, improvement
processes, copyrights, trademarks and trade names, and service marks
relating to or useful in connection with the business of this
Corporation.
(1) Subject to the limitations of The General and Business
Corporation Law, to purchase, hold, sell, transfer, dispose of or deal
in shares of its own capital stock.
(J) In general, and in addition to all of the foregoing, to carry
on any business in connection with the aforesaid powers and purposes,
and, further, to have and exercise all of the powers conferred by The
General and Business Corporation Law whether or not done in connection
with the specific powers hereinbefore set forth.
ARTICLE NINE
Except as otherwise specifically provided by statute, all powers of
management and direct control of the Corporation shall be vested in the
Board of Directors.
The power to make, alter, amend or repeal the Bylaws of the
Corporation shall be vested in the Board of Directors. The exercise of
such power shall require the affirmative vote of a majority of the
Directors.
ARTICLE TEN
No contract or other transaction between this Corporation and any
other firm or corporation shall be affected or invalidated by reason of
the fact that any of the Directors or Officers of this Corporation are
interested in or are members, shareholders, directors, or officers of
such other firm or corporation; and any Director or Officer of this
Corporation may be a party to or may be interested in any contract or
transaction of this Corporation in which this Corporation is interested
and no such contract or transaction shall be affected or invalidated
thereby; and each and every person who may become a Director or Officer
of this Corporation is hereby relieved from any liability as a result of
holding any such position that might otherwise exist from contracting or
transacting business with this Corporation for the benefit of such
Director of Officer or of any person, firm, association or corporation
in which such Director or Officer may be in anywise interested.
ARTICLE ELEVEN
The private property of the Shareholders of this Corporation shall
not be subject to the payment of corporate debts, except to the extent
of any unpaid balance of subscriptions for shares.
ARTICLE TWELVE
The power to amend and alter the Articles of Incorporation of the
Corporation shall be vested solely in the holders of the common stock of
the Corporation (except to the extent that in certain circumstances the
holders of any other class of stock may be entitled by law to vote).
This power may be exercised (after such notice as may be required or
waiver thereof) at any annual or special meeting of the holders of the
aforementioned shares by a vote of a majority of such shares as are
issued and outstanding and entitled to vote at such meeting.
ARTICLE THIRTEEN
(a) The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding whether civil, criminal,
administrative or investigative, other than an action by or in the right
of the Corporation, by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a Director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, including attorneys' fees, judgments,
fines and amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a plea of
nolo contenders or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful.
(b) The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he is or was
a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses, including attorney's fees
and amounts paid in settlement, actually and reasonably incurred by him
in connection with the defense or settlement of the action or suit if he
acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Corporation; except that no
indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of his duty to the
Corporation unless and only to the extent that the court in which the
action or suit was brought determines upon application that, despite the
adjudication of liability and in view of all the circumstances of the
case, the person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
(c) To the extent that a director, officer, employee or agent of
the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Sections A and
B of this Article, or in defense of any claim, issue or matter therein
he shall be indemnified against expenses, including attorneys' fees,
actually and reasonably incurred by him in connection with the action,
suit or proceeding.
(d) Any indemnification under Sections A and B of this Article,
unless ordered by a court, shall be made by the Corporation only as
authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in
the circumstances because he has met the applicable standard of conduct
set forth in this Article. The determination shall be made by the Board
of Directors of the Corporation by a majority vote of a quorum
consisting of directors who were not parties to the action, suit or
proceeding, or if such a quorum is not obtainable, or even if obtainable
a quorum of disinterested Directors so directs, by independent legal
counsel in a written opinion, or by the shareholders of the Corporation.
(e) Expenses incurred in defending a civil or criminal action,
suit or proceeding may be paid by the Corporation in advance of the
final disposition of the action, suit or proceeding as authorized by the
Board of Directors in the specific case upon receipt of an undertaking
by or on behalf of the director, officer, employee or agent to repay
such amount unless it shall ultimately be determined that he is entitled
to be indemnified by the Corporation as authorized in this Article.
(f) The indemnification provided by this Article shall not be
deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any bylaw, agreement, vote of
shareholders, or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the benefit
of the heirs, executors and administrators of such person.
(g) The Corporation may give any further indemnity, in addition to
the indemnity authorized or contemplated under this Article, including
Section F, to any person who is or was a director, officer, employee or
agent, or to any person who is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
provided such further indemnity is either (i) authorized, directed, or
provided for in these Articles of Incorporation or any duly adopted
amendment thereof or (ii) is authorized, directed, or provided for in
any bylaw or agreement of the Corporation which has been adopted by a
vote of the shareholders of the Corporation, and, provided further than
no such
indemnity shall indemnify any person from or on account of such persons
conduct which was finally adjudged to have been knowingly fraudulent,
deliberately dishonest or willful misconduct. Nothing in this section G
shall be deemed to limit the power of the Corporation under section F of
this Article to enact bylaws or to enter into agreements without
shareholder adoption of the same.
(h) The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such
liability under the provisions of this Article.
(i) For the purpose of this Article, references to "the
Corporation" include all constituent corporations absorbed in a
consolidation or merger as well as the resulting or surviving
corporation so that any person who is or was a director, officer,
employee or agent of such a constituent corporation or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise shall stand in the same position
under the provisions of this Article with respect to the resulting or
surviving corporation as he would if he had served the resulting or
surviving corporation in the same rapacity.
(j) For purposes of this Article, the term "other enterprise"
shall include employee benefit plans; the ten-n "fines" shall include
any excise taxes assessed on a person with respect to an employee
benefit plan; and the term "serving at the request of the Corporation"
shall include any service as a director, officer, employee or agent of
the Corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee
benefit plan, its participants, or beneficiaries; and a person who acted
in good faith and in a manner he reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not opposed to the best
interests of the Corporation" as referred to in this section.
ARTICLE FOURTEEN
The provisions of Section 351.407 of the Revised Statutes of
Missouri, as amended from time to time, which would apply if and when
the Corporation is an "issuing public corporation" and which would
require the filing of certain information, notice to shareholders, and
shareholder approval of certain "control share acquisitions" and which
would create dissenter and other shareholder rights, shall not apply to
the Corporation. The quoted terms shall have the meanings set forth in
the General and Business Corporation Law of Missouri, as amended from
time to time.
This Article shall not be amended to eliminate or reduce the
application of Section 351.407 except upon the vote of two-thirds (2/3)
of the issued and outstanding shares entitled to vote on the amendment
of these Articles of Incorporation.
IN WITNESS WHEREOF, these Articles of Incorporation have been
executed on this 9th day of December, 1997.
INCORPORATOR:
/s/ Joseph T. Porter, Jr.
- ----------------------
Joseph T. Porter, Jr.
EXHIBIT 3.2
BY-LAWS
OF
NASB FINANCIAL, INC.
(A Missouri Corporation)
ARTICLE I Offices and Records
ARTICLE II Corporate Seal
ARTICLE III Shareholders
ARTICLE IV Directors
ARTICLE V officers
ARTICLE VI Shares of Stock
ARTICLE VII Indemnification
ARTICLE VIII General Provisions
ARTICLE I Offices and Records
Section 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 determined from time to
time by the Board of Directors and shall be on file in the appropriate
office of the State of Missouri pursuant to applicable provisions of
law.
Section 2. Corporate offices. The corporation may have such
corporate offices, anywhere within and without the State of Missouri
as the Board of Directors from time to time may appoint, or the
business of the corporation may require. The "principal place of
business" or "principal business" or "executive office or offices" 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 Missouri shall be deemed for all purposes to be in the
county in which its registered office in Missouri is maintained.
Section 3. Records. The corporation shall keep at its registered
office in Missouri, at its principal place of business, or at the
office of its transfer agent in Missouri, original or duplicate books
in which shall be recorded the number of its shares subscribed, the
names of the owners of its shares, the numbers owned of record by them
respectively, the amount of shares paid, and by whom, the transfer of
said shares with the date of transfer, the amount of its assets and
liabilities, and the names and places of residence of its officers,
and from time to time such other or additional records, statements,
lists, and information as may be required by law, including the
shareholder lists mentioned in these By-laws.
Section 4. Inspection of Records. A shareholder, if he is
entitled and demands to inspect the records of the corporation
pursuant to any statutory or other legal right, shall be privileged to
inspect such records only 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. In order to
exercise this right of examination, a shareholder must make written
demand upon the corporation, stating with particularity the records
sought to be examined and the purpose therefor. A shareholder may
delegate his right of inspection to his representative on the
condition that, if the representative is not an attorney, the
shareholder and representative agree with the corporation to furnish
to the corporation, promptly as completed or made, a true and correct
copy of each report with respect to such inspection made by such
representative. No shareholder shall use or 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 may, as a condition precedent to any shareholder's
inspection of the records of the corporation, require the shareholder
to indemnify the corporation 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 or any
representative or financial advisor of the shareholder of information
obtained in the course of such inspection. The corporation may, as a
further condition precedent to any shareholder's inspection of the
records of the corporation, also require the shareholder to execute
and deliver to the corporation a confidentiality agreement in which
the shareholder: (i) acknowledges that the corporation is engaged in a
highly competitive economic environment, that the nonpublic records of
the corporation are secret and confidential, and that the corporation
would suffer material adverse financial consequences if competitors or
other entities with which the corporation does business should gain
access to nonpublic information contained in the records of the
corporation; (ii) agrees that he will not, directly or indirectly,
without the corporation's prior written consent, disclose any
nonpublic information obtained from the records of the corporation to
any party other than the shareholder's representative or personal
financial advisor; and (iii) agrees to instruct his representative and
any personal financial advisor not to disclose, directly or
indirectly, without the corporation's prior written consent, any such
nonpublic information received and that no applicable professional-
client privileges shall be waived. The corporation may also require
any representative or personal financial advisor of a shareholder to
sign a confidentiality agreement containing substantially the
provisions described above as a condition precedent to inspection of
the records of the corporation. As used herein, "nonpublic"
information is all information other than: (a) that which the
corporation has filed with a governmental agency and which (i) was not
designated as confidential, secret, proprietary, or the like and (ii)
is generally open to public inspection in accordance with applicable
laws, rules, and regulations; and (b)that which the corporation has
released to the press or other media for general publication.
ARTICLE II Corporate Seal
Section 1. Corporate Seal. The corporate seal, if any, shall have
inscribed thereon the name of the corporation and the words: Corporate
Seal--Missouri. Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or in any manner reproduced.
ARTICLE III Shareholders
Section 1. Place of Meetings. All meetings of the shareholders
shall be held at the principal business office of the corporation,
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 herein
provided, at such other place or places, within or without the State
of Missouri, as said Board of Directors shall determine and as shall
be stated in such notice; and, unless specifically prohibited by law,
any meeting may be held at any place and time, and for any purpose if
consented to in writing by all of the shareholders entitled to vote
thereat.
Section 2. Annual Meeting. An annual meeting of shareholders
shall be held on the fourth Tuesday in January of each year, if not a
legal holiday, and if a legal holiday then on the next business day
following, at 10:00 a.m. local time when the shareholders shall elect
directors to succeed those whose terms expire and transact such other
business as may properly be brought before the meeting.
Section 3. Special Meetings. Special meetings of the shareholders
may be called by the Chairman of the Board, the President, the
Executive Vice President or by the Board of Directors, and shall be
held on such date and at such time as he or they shall fix.
The holders of not less than one-third (1/3) of all of the issued
and outstanding shares of capital stock of the corporation entitled to
vote for the election of directors may also call a special meeting of
the shareholders in accordance with the following procedures. Upon
receipt by the Secretary of the corporation of a written demand for a
special meeting signed by the holders of record of the requisite
number of shares of capital stock entitled to vote which demand sets
forth (a) the specific purpose or purposes for which the meeting is to
be called, (b) the names and current addresses of all shareholders
joining in the written demand, and (c) the number of shares of capital
stock of the corporation that each such shareholder holds, the Board
of Directors shall, within twenty (20) days after receipt of said
written demand, set a place, date, hour, and record date for said
special meeting, and shall direct the Chairman of the Board, the
President, or the Secretary of the corporation to give notice of said
special meeting to the shareholders of the corporation in the manner
provided for in this Article.
Section 4. Action in Lieu of Meeting. Any action required to be
taken at a meeting of the shareholders or any other action 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.
Section 5. Notice of Meetings. Written or printed notice stating
the place, day, and hour of the meeting and, in the case of a special
meeting, the purpose or purposes for which the meeting is called,
shall be given not less than ten nor more than seventy days before the
date of the meeting, either personally or by mail, by or at the
direction of the Board of Directors, the Chairman of the Board, the
President, or the Secretary, to each shareholder of record entitled to
vote at such meeting. if mailed, such notice shall be deemed to be
delivered when deposited in the United States mail in a sealed
envelope addressed to the shareholder at his address as it appears on
the records of the corporation, with postage thereon prepaid.
Section 6. Presiding Officials. Every meeting of the
shareholders for whatever object, shall be convened (in the order
shown, unless otherwise determined by resolution of the Board of
Directors) by the Chairman of the Board, or by the President, or by
the officer who called the meeting by notice as above provided; but it
shall be presided over by the officers specified elsewhere in these
By-laws.
Section 7. Waiver of Notice. Whenever any notice is required to
be given under the provisions of these By-laws, the Articles of
Incorporation of the corporation, or any law, a waiver thereof in
writing signed by the person or persons entitled to such notice,
whether before, at, or after the time stated therein, shall be deemed
the equivalent of the giving of such notice. To the extent provided
by law, attendance at any meeting shall constitute a waiver of notice
of such meeting.
Section 8. Business Transacted at Annual Meetings. At each
annual meeting of the shareholders, the shareholders shall elect a
Board of Directors to hold office until the next succeeding annual
meeting, or, in the case of a classified Board of Directors, the
shareholders shall elect Directors to fill those director positions
the terms of which are set to expire at that annual meeting of
shareholders; and they may transact such other business as may be
desired, whether or not the same was specified in the notice of the
meeting, unless the consideration of such other business without its
having been specified in the notice of the meeting as one of the
purposes thereof is prohibited by law.
Section 9. Business Transacted at Special Meetings. Business
transacted at all special meetings of the shareholders shall be
confined to the purposes stated in the notice of such meetings, unless
the transaction of other business is consented to by the holders of
all of the outstanding shares of stock of the corporation entitled to
vote thereat.
Section 10. Quorum. Except as may be otherwise provided by law
or by the Articles of Incorporation, the holders of a majority of the
voting shares issued and outstanding and entitled to vote for the
election of directors, whether present in person or by proxy, shall
constitute a quorum for the transaction of business at all meetings of
the shareholders. Every decision of a majority in amount of shares of
such quorum shall be valid as a corporate act, except in those
specific instances in which a larger vote is required by law, by these
By-laws, or by the Articles of Incorporation. If, however, such
quorum should not be present at any meeting, the shareholders present
and entitled to vote shall have the power successively to adjourn the
meeting, without notice other than announcement at the meeting, to a
specified date not longer than ninety days after such adjournment. At
any such adjourned meeting at which a quorum is present any business
may be transacted which might have been transacted at the meeting of
which the shareholders were originally notified. However, if the
adjournment is for more than thirty days, or if after the adjournment
a new record date is fixed for the adjourned meeting, notice of the
adjourned meeting shall be given in the manner otherwise provided
herein to each shareholder of record entitled to vote at such
adjourned meeting. Withdrawal of shareholders from any meeting shall
not cause the failure of a duly constituted quorum at such meeting.
Section 11. Proxies. At any meeting of the shareholders every
shareholder having the right to vote shall be entitled to vote in
person, or by vesting another person with authority to exercise the
voting power of any or all of his stock by executing in writing any
voting trust agreement, proxy, or any other type of appointment form
or agreement, except as may be expressly limited by law or by the
Articles of Incorporation. Any copy, facsimile telecommunication, or
other reliable reproduction of any writing referred to in this Section
may be used in lieu of the original writing for any and all purposes
for which the original writing could be used, provided that such copy,
facsimile telecommunication, or other reproduction shall be a complete
reproduction of the entire original writing. No proxy shall be valid
after eleven months from the date of its execution, unless otherwise
provided in the proxy.
Section 12. Voting. Each shareholder shall have one vote (or such
other number of votes as may be specifically provided) for each share
of stock entitled to vote under the provisions of the Articles of
Incorporation which is registered in his name on the books of the
corporation; but in the election of directors, cumulative voting shall
prevail; that is to say, each shareholder shall have the right to cast
as many votes in the aggregate as shall equal the number of voting
shares so held by him, multiplied by the number of directors to be
elected at such election, and he may cast the whole number of such
votes for any one or more candidates. Directors shall not be elected
in any other manner, unless such cumulative voting be unanimously
waived by all shareholders present, in person or by proxy, and such
waiver is permitted by law. All other matters, except as required by
law or the Articles of Incorporation, shall be determined by a
majority of the votes cast. Any shareholder who is in attendance at a
meeting of the shareholders either in person or by proxy, but who
abstains from voting on any matter, shall not be deemed present or
represented at such meeting for purposes of the preceding sentence
with respect to such vote, but shall be deemed present or represented
for all other purposes.
The rights and powers of the holders of any class or series of
preferred stock with respect to the election of directors shall be
only as may be duly designated with respect to such class or series
and as is consistent with the provisions of the Articles of
Incorporation.
No person shall be permitted to vote any shares of the
corporation's stock belonging to the Corporation.
Shares standing in the name of another corporation, domestic or
foreign, may be voted by such officer, agent, or proxy as the by-laws
of such corporation may prescribe, or, in the absence of such
provision, as the board of directors of such corporation may
determine.
Shares standing in the name of a deceased person may be voted by
his personal representative either in person or by proxy. 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
transfer of such shares into his name.
Shares standing in the name of a 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 to do so is contained
in an appropriate order of the court by which such receiver was
appointed.
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 transferred.
Shares standing in the names of two or more persons shall be
voted or represented in accordance with the vote or consent of a
majority of the persons in whose names the shares are registered. If
only one such person is present in person or by proxy, he may vote all
of the shares, and all of the shares standing in the names of such
persons shall be deemed represented for purposes of determining a
quorum. The foregoing provisions shall also apply to shares held by
two or more personal representatives, trustees, or other fiduciaries
unless the instrument or order appointing them otherwise directs.
Section 13. Registered Shareholders. The corporation shall be
entitled to treat the holder of any share or shares of stock of the
corporation, as recorded on the stock record or transfer books of the
corporation, as the holder of record and as the holder and owner in
fact thereof and, accordingly, shall not be required to recognize any
equitable or other claim to or interest in such share (s) on the part
of any other person, firm, partnership, corporation or association,
whether or not the corporation shall have express or other notice
thereof, save as is otherwise expressly required by law, and the term
"shareholder" as used in these By-laws means one who is a holder of
record of shares of the corporation.
Section 14. Shareholders Lists. 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 ten days prior to the meeting
be kept on file in the registered office of the corporation in
Missouri, and shall at any time during the usual hours for business be
subject to inspection by any shareholder. A similar or duplicate list
shall also be produced and kept open for 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 shareholders
entitled to examine such list, ledger, or transfer book or to vote at
any meeting of shareholders. Failure to comply with the foregoing
shall not affect the validity of any action taken at any such meeting.
Section 15. Removal of Directors. Except as otherwise provided
in the Articles of Incorporation or by law, the shareholders shall
have the power by an affirmative vote of a majority of the outstanding
shares then entitled to vote for the election of directors at any
regular meeting or special meeting expressly called for that purpose,
to remove any director from office. Such meeting shall be held at any
place prescribed by law or at any other place which may, under law,
permissibly be, and which is, designated in the notice of the special
meeting. if cumulative voting applies to the election of directors, no
one of the directors may be removed if the votes cast against his
removal would be sufficient to elect him if then cumulatively voted at
an election of the entire Board of Directors.
Section 16. Nomination of Directors. Nominations of persons for
election to the Board of Directors of the corporation at a meeting of
the shareholders may be made by or at the direction of the Board of
Directors or may be made at a meeting of shareholders by any
shareholder of the corporation entitled to vote for the election of
directors at the meeting who complies with the procedures set forth in
this Section. Such nominations, other than those made by or at the
direction of the Board, shall be made by delivering timely notice in
writing to the Secretary of the corporation. To be timely, a
shareholder's notice shall be delivered to or mailed and received at
the principal office of the corporation not less than one hundred
twenty days nor more than one hundred eighty days prior to the
anniversary of the previous year's Annual Meeting of Shareholders. To
be valid, such shareholder's notice to the Secretary shall set forth:
(a) as to each person whom the shareholder proposes to nominate for
election or re-election as a director, (i) the name, age, business
address, and residence address of the person, (ii) the principal
occupation or employment of the person, (iii) the number of shares of
stock of the corporation that are beneficially owned by the person,
and (iv) any other information relating to the person that is required
to be disclosed in solicitations for proxies for election of directors
pursuant to applicable federal and state securities laws, provided,
however, that nothing in this Section is intended to create or imply
any obligation on the part of the corporation to include within the
corporation's proxy solicitation materials, if any, any materials or
information regarding persons nominated for election to the Board of
Directors by shareholders of the corporation; and (b) as to the
shareholder giving notice (i) the name and record address of the
shareholder and (ii) the number of shares of stock of the corporation
that are beneficially owned by the shareholder. The corporation may
require any proposed nominee to furnish such other information as may
be reasonably required by the Board of Directors to determine the
eligibility of such proposed nominee to serve as a director of the
corporation. No person shall be eligible for election as a director
of the corporation at a meeting of the shareholders unless nominated
in accordance with the procedures set forth herein. The chairman of
the meeting shall, if the facts warrant, determine and declare that a
nomination was not made in accordance with the foregoing procedure, in
which case the defective nomination shall be disregarded.
ARTICLE IV Directors
Section 1. Qualifications and Number. Each director shall be a
natural person who is at least eighteen years of age. A director need
not be a shareholder, a citizen of the United States, or a resident of
the State of Missouri unless required by law or the Articles of
Incorporation.
Unless and until changed, the number of directors to constitute
the full Board of Directors shall be the same number as is provided
for the first Board in the Articles of Incorporation. The Board of
Directors, if, to the extent, and in such manner as may be permitted
by the Articles of Incorporation and by law, shall have the power to
change the number of directors, in which case any notice required by
law of any such change shall be duly given. If the power to change
these by-law provisions concerning the number of directors is not
granted to the Board of Directors, such power shall be exercised by
such vote of the shareholders entitled to vote as may be required in
the Articles of Incorporation; and if no specific vote of the
shareholders is required, then by a majority of the shareholders then
entitled to vote.
Section 2. Classification of the Board. The board of directors
shall be divided into three equal, or nearly equal, classes with each
of the classes serving staggered three year terms as further set forth
herein. Upon the initial election of Directors of the corporation,
the Board of Directors shall, at its next regular meeting or at a
special meeting at which a quorum is present and voting, designate
three (3) classes of directors. Each class shall be as nearly equal
in number as may be, and shall be designated respectively Class 1,
Class 2, and Class 3.
By resolution adopted by majority vote, each director shall be
designated as a member of any one of Class 1, Class 2, or Class 3,
thereby effecting the initial designation of directors. The directors
initially designated as Class 1 directors shall serve an initial term
of one year, measured from the time of their most recent election by
the shareholders, and thereafter Class 1 directors shall hold office
for a term of three years. The directors initially designated as
Class 2 directors shall serve an initial term of two years, measured
from the time of their most recent election by the shareholders, and
thereafter Class 2 directors shall hold office for a term of three
years. The directors initially designated as Class 3 directors shall
serve an initial term of three years, measured from the time of their
most recent election by the shareholders, and thereafter Class 3
directors shall hold office for a term of three years.
At the first annual meeting of shareholders held after the time
when the Board of Directors has acted to initially designate the
members of the Board of Directors as Class 1, Class 2, and Class 3,
and every third year thereafter, the shareholders of the corporation
shall elect Class 1 directors, and the term of office of each shall be
for three years. At the second annual meeting of shareholders held
after the time when the Board of Directors has acted to so designate
the members of the Board of Directors into classes, and every third
year thereafter, the shareholders of the corporation shall elect Class
2 directors, and the term of office of each shall be three years. At
the third annual meeting of shareholders held after the time when the
Board of Directors has acted to so designate the members of the Board
of Directors into classes, and every third year thereafter, the
shareholders of the corporation shall elect Class 3 directors, and the
term of office of each shall be for three years.
Section 3. Powers of the Board. The property and business of the
Corporation shall be managed by the directors, acting as a Board. The
Board shall have and is vested with all and unlimited powers and
authorities, except as may be expressly limited by law, the Articles
of Incorporation, or by these By-laws, to do or cause to be done any
and all lawful things for and on behalf of the corporation (including,
without limitation, the declaration of dividends on the outstanding
shares of the corporation and the payment thereof in cash, property or
shares), and 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.
Section 4. Annual Meeting of the Board, Notice. Any continuing
members and the newly elected members of the Board shall meet: (i)
immediately following the conclusion of the annual meeting of the
shareholders for the purpose of electing officers and for such other
purposes as may come before the meeting, and the time and place of
such meeting shall be announced at the annual meeting of the
shareholders by the chairman of such meeting, and no other notice to
any continuing or the newly elected directors shall be necessary in
order to legally constitute the meeting, provided a quorum of the
directors shall be present; or (ii) if no meeting immediately
following the annual meeting of shareholders is announced, at such
time and place, either within or without the State of Missouri, as may
be suggested or provided for by resolution of the shareholders at
their annual meeting and no other notice of such meeting shall be
necessary to the newly elected directors in order to legally
constitute the meeting, provided a quorum of the directors shall be
present; or (iii) if not so suggested or provided for by resolution of
the shareholders or if a quorum of the directors shall not be present,
at such time and place as may be consented to in writing by a majority
of any continuing and the newly elected directors, provided that
written or printed notice of such meeting shall be given to each of
any continuing and the newly elected directors in the same manner as
provided in these By-laws with respect to the 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 (iv) 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, at such time and place as may be consented to in writing by
all of any continuing and 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.
Section 5. Section 5. Regular Meetings, Notice. Regular meetings of the
Board may be held 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 a majority of the full Board of Directors. No
notice of any regular meeting need be given other than by announcement
at the immediately preceding regular meeting and communicated in
writing to all absent directors; provided, however, that written
notice of any regular meeting of the Board of Directors stating the
place, day, and hour of such meeting shall be given if required by
resolution adopted by the Board of Directors. Any business may be
transacted at a regular meeting. Neither the business to be
transacted at nor the purpose need be specified in any notice or
waiver of notice of any regular meeting of the Board of Directors.
Section 6. Special Meetings, Notice. Special meetings of the
Board may be called at any time by the Chairman of the Board, the
President, or by one-third of the directors (rounded up to the nearest
whole number) . The place may be within or without the State of
Missouri as designated in the notice.
Written notice of each special meeting of the Board, stating the
place, day, and hour of the meeting shall be given to each director at
least two days before the date on which the meeting is to be held.
The notice shall be given (i) in the manner provided for in these By-
laws or (ii) may be given telephonically, if confirmed promptly in
writing, in which case the notice shall be deemed to have been given
at the time of telephonic communication. The notice may be given by
any officer directed to do so by any officer having authority to call
the meeting or by the directors) who have called the meeting.
Neither the business to be transacted at nor the purpose need be
specified in the notice or any waiver of notice of any special meeting
of the Board of Directors.
Section 7. Action in Lieu of Meetings. Unless otherwise
restricted by the Articles of Incorporation or these By-laws or by
law, any action required to be taken at a meeting of the Board of
Directors or any other action which may be taken at a meeting of the
Board of Directors may be taken without a meeting if a consent in
writing setting forth the action so taken shall be signed by all the
directors entitled to vote with respect to the subject matter thereof.
Any such consent signed by all the directors shall have the same
effect as a unanimous vote and may be stated as such in any document
describing the action taken by the Board of Directors.
Section 8. Meeting by Conference Telephone or Similar
Communications Equipment. Unless otherwise restricted by the Articles
of Incorporation or these By-laws or by law, members of the Board of
Directors of the corporation, or any committee designated by such
Board, may participate in a meeting of such 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 such meeting.
Section 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 the Articles of Incorporation or
these By-laws, constitute a quorum for the transaction of business.
The act of a majority of the directors present at any meeting at which
there is a quorum, except as may be otherwise specifically provided by
law, by the Articles of Incorporation, or by these By-laws, shall be
the act of the Board of Directors. A director who is in attendance at
a meeting of the Board of Directors but who abstains from voting on a
matter shall not be deemed present at such meeting for purposes of the
preceding sentence with respect to such vote, but shall be deemed
present at such meeting for all other purposes. Withdrawal by a
director from any meeting at which a duly constituted quorum is
present shall not cause the failure of the quorum.
Less than a quorum may adjourn a meeting successively until a
quorum is present, and no notice of adjournment shall be required.
Section 10. Waiver of Notice; Attendance at Meeting. Any notice
provided or required to be given to the directors may be waived in
writing by any of them, whether before, at, or after the time stated
therein.
Attendance of a director at any meeting shall constitute a waiver
of notice of such meeting except where the director attends for the
express purpose, and so states at the opening of the meeting, of
objecting to the transaction of any business because the meeting is
not lawfully called or convened.
Section 11. Vacancies. If the office of any director is or
becomes vacant by reason of death, resignation, or due to an increase
in the number of directors, a majority of the survivors or remaining
directors, though less than a quorum, may appoint a director to fill
the vacancy until a successor shall have been duly elected at a
shareholders, meeting.
Section 12. Executive Committee. The Board of Directors may, by
resolution passed by a majority of the full Board, designate an
executive committee, such committee to consist of two or more
directors of the corporation. Such committee, except to the extent
limited in said resolution, shall have and may exercise all of the
powers of the Board of Directors in the management of the corporation.
The members constituting the executive committee shall be determined
from time to time by resolution adopted by a majority of the full
Board; and any director may vote for himself as a member of the
executive committee. In no event, however, shall the executive
committee have any authority to amend the Articles of Incorporation,
to adopt any plan of merger or consolidation with another corporation
or corporations, to recommend to the shareholders the sale, lease,
exchange, mortgage, pledge, or other disposition of all or
substantially all of the property and assets of the corporation if not
made in the usual and regular course of its business, to recommend to
the shareholders a voluntary dissolution of the corporation or a
revocation thereof, to amend, alter or repeal the By-laws of the
corporation, to elect or remove officers of the corporation or members
of the executive committee, to fix the compensation of any member of
the executive committee, to declare any dividend, or to amend, alter
or repeal any resolution of the Board of Directors which by its terms
provides that it shall not be amended, altered or repealed by the
executive committee.
The executive committee shall keep regular minutes of its
proceedings and the same shall be recorded in the minute book of
the corporation. The Secretary or an Assistant Secretary of the
corporation may act as secretary for the executive committee if the
executive committee so requests.
Section 13. Other Committees. The Board of Directors may, by
resolution passed by a majority of the full Board, designate one or
more standing or ad hoc committees, each committee to consist of two
or more of the directors of the corporation and such other person(s)
as may be appointed as advisory members under authority provided in
the resolution. Each such committee, to the extent provided in the
resolution and permitted by law, shall have and may exercise the power
of the Board of Directors. The members constituting each such
committee shall be determined from time to time by resolution adopted
by a majority of the full Board; and any director may vote for himself
as a member of any such committee.
Each such committee shall, to the extent required by resolution of
the Board of Directors (or, in the absence of any such resolution, to
the extent a majority of its members determines is appropriate) keep
minutes of its proceedings and the same shall be recorded in the
minute book of the corporation. The Secretary or Assistant Secretary
of the corporation may act as secretary for any such committee if the
committee so requests.
Section 14. Compensation of Directors and Committee Members.
Directors and members of all committees shall receive such
compensation for their services as may be determined from time to time
by resolution adopted from time to time by the Board, as well as such
expenses, if any, as may be allowed pursuant to resolution adopted
from time to time by the Board. No such resolution shall be deemed
voidable or invalid by reason of the personal or pecuniary interest of
the directors or any director in adopting it. 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.
Section 15. Protection of Director for Reliance on Corporate
Records. No director shall be liable for dividends legally declared,
distributions legally made to shareholders, or any other action taken
in reliance in good faith upon financial statements of the corporation
represented to him to be correct by the Chairman of the Board, the
President or the officer of the corporation having charge of the books
of account, or certified by an accountant to fairly represent the
financial condition of the corporation; nor shall any such director be
liable for determining in good faith the amount available for
dividends or distributions by considering the assets to be of their
book values.
ARTICLE V Officers
Section 1. Officers--who Shall Constitute. The officers of the
corporation shall be a Chairman of the Board, a President, one or more
Vice Presidents, a Secretary, a Treasurer, one or more Assistant
Secretaries, and one or more Assistant Treasurers. The Board shall
elect or appoint a Chairman of the Board, President, Vice President,
Secretary and Treasurer at its first meeting and at each annual
meeting of the Board of Directors which shall follow the annual
meeting of the shareholders. The Board then, or from time to time,
may also elect or appoint one or more of the other prescribed officers
as it shall deem advisable, but need not elect or appoint any officers
other than a President and a Secretary. The Board may, if it desires,
further identify or describe any one or more of such officers.
An officer need not be a shareholder unless required by law or the
Articles of Incorporation. Any two or more of such offices may be
held by the same person.
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 of such person his written acceptance and promise faithfully
to discharge the duties of such office.
Section 2. Term of Office. Each officer of the corporation shall
hold his office for the term for which he was elected, or until he
resigns or is removed by the Board, whichever first occurs.
Section 3. Appointment of Officers and Agents-Terms of Office.
The Board from time to time may also appoint such other officers and
agents for the corporation as it shall deem necessary or advisable.
All appointed officers and agents shall hold their respective
positions at the pleasure of the Board or for such terms as the Board
may specify, and they shall exercise such powers and perform such
duties as shall be determined from time to time by the Board, or by an
elected officer empowered by the Board to make such determination.
Section 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 shall be without
prejudice to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not of itself
create contract rights.
Section 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 the Chairman of the
Board or to the President (except as to their own compensation) , or
to a committee. Salaries and compensation of all other appointed
officers and agents, and employees of the corporation, may be fixed,
increased or decreased by the Board of Directors or a committee
thereof, but until action is taken with respect thereto by the Board
of Directors or a committee thereof, the same may be fixed, increased
or decreased by the Chairman of the Board, the President, or by such
other officer or officers as may be empowered by the Board of
Directors or a committee thereof to do so.
Section 6. Delegation of Authority to Hire, Discharge, Etc. The
Board, from time to time, may delegate to the Chairman of the Board,
the President, or any other officer or executive employee of the
corporation, authority to hire, discharge, and fix and modify the
duties, salary, or other compensation of employees of the corporation
under their jurisdiction; and the Board may delegate to such officer
or executive employee similar authority with respect to obtaining and
retaining for the corporation the services of attorneys, accountants,
and other experts.
Section 7. The Chairman of the Board. The Chairman of the Board
shall be the Chief Executive Officer of the Corporation. The Chairman
of the Board shall have general and active management of the business
of the Corporation and shall carry into effect all directions and
resolutions of the Board. The Chairman of the Board may execute all
bonds, notes, debentures, mortgages and other contracts requiring a
seal, under the seal of the Corporation, and may cause the seal to be
affixed thereto, and all other instruments for and in the name of the
Corporation.
The Chairman of the Board, when authorized to do so by the Board,
may execute Powers of Attorney from, for, in the name of the
Corporation, to such proper person or persons as he may deem fit, in
order that thereby the business of the Corporation may be further or
action taken as may be deemed by him necessary or advisable in
furtherance of the interests of the Corporation. The Chairman of the
Board, except as may be otherwise directed by the Board, shall be
authorized to attend meetings of Shareholders of other corporations to
represent this Corporation thereat and to vote or take action with
respect to the shares of any such corporation owned by this
Corporation in such manner as he shall deem to be for the interest of
the Corporation or as may be directed by the Board.
Except as otherwise provided in these Bylaws, the Chairman of the
Board shall preside at all meetings of the shareholders and of the
Board of Directors. The Chairman of the Board shall be an ex officio
member of all standing committees. The Chairman of the Board shall
have such general executive powers and duties of supervision and
management as are usually vested in the office of a managing executive
of a corporation provided that the Chairman of the Board shall report
to and follow directives of the Board of Directors.
The Chairman of the Board 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, and the Board may from time to
time divide the responsibilities, duties, and authority between the
Chairman of the Board and such other officers to the extent as it may
deem advisable.
Notwithstanding anything to the contrary herein stated, the
Chairman of the Board shall not be authorized to do any act required
by law to be done by the President of the Corporation until written
notice of his designation as Chief Executive Officer, attested to by
the Secretary of the Corporation, has been filed in writing with the
Secretary of State of Missouri.
Section 8. The President. Except as otherwise provided for in
these By-laws, in the absence of the Chairman of the Board, the
President, shall preside at all meetings of the shareholders and of
the Board of Directors. The President shall have general and active
management of the business of the corporation and shall carry into
effect all directions and resolutions of the Board.
The President shall have such other or further duties and
authority as may be prescribed elsewhere in these By-laws or from time
to time by the Board of Directors, and the Board may from time to time
divide the responsibilities, duties, and authority between them to
such extent as it may deem advisable.
Section 9. The Vice Presidents. The Vice Presidents, in the order
of their seniority as determined by the Board, shall, in the absence,
disability or inability to act of the Chairman of the Board and, the
President, perform the duties and exercise the powers of such offices
and shall perform such other duties as the Board of Directors shall
from time to time prescribe.
Section 10. The Secretary and Assistant Secretaries. The
Secretary shall attend all sessions of the Board and except as
otherwise provided for in these By-laws, all meetings of the
shareholders, and shall record or cause to be recorded all votes taken
and the minutes of all proceedings in a minute book of the corporation
to be kept for that purpose. The Secretary shall perform like duties
for the executive and other standing committees when requested by the
Board or such committee to do so.
The Secretary shall have the principal responsibility to give, or
cause to be given, notice of all meetings of the shareholders and of
the Board of Directors, but this shall not lessen the authority of
others to give such notice as is authorized elsewhere in these By-
laws.
The Secretary shall see that all books, records, lists and
information, or duplicates, required to be maintained at the
registered office or at some office of the corporation in Missouri, or
elsewhere, are so maintained.
The Secretary shall keep in safe custody the seal of the
corporation, and when duly authorized to do so, shall affix the same
to any instrument requiring it, and when so affixed, shall attest the
same by his signature.
The Secretary shall perform. such other duties and have such other
authority as may be prescribed elsewhere in these By-laws or from time
to time by the Board of Directors or the President, under whose direct
supervision the Secretary shall be.
The Secretary shall have the general duties, powers and
responsibilities of a Secretary of a corporation.
The Assistant Secretaries, in the order of their seniority, in the
absence, disability, or inability to act of the Secretary, shall
perform the duties and exercise the powers of the Secretary, and shall
perform such other duties as the Board may from time to time
prescribe.
Section 11. The Treasurer and Assistant Treasurers. The
Treasurer shall have responsibility for the safekeeping of the funds
and securities of the corporation, and shall keep or cause to be kept
full and accurate accounts of receipts and disbursements in books
belonging to the corporation. The Treasurer shall keep, or cause to
be kept, all other books of account and accounting records of the
corporation, and shall deposit or cause to be deposited all moneys and
other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the Board of
Directors.
The Treasurer shall disburse, 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 it, an
account of all his transactions as Treasurer and of those under his
jurisdiction, and of the financial condition of the corporation.
The Treasurer shall perform such other duties and shall have such
other responsibility and authority as may be prescribed elsewhere in
these By-laws or from time to time by the Board of Directors.
The Treasurer shall have the general duties, powers and
responsibility of a Treasurer of a corporation, and shall be the chief
financial and accounting officer of the corporation.
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.
The Assistant Treasurers in the order of their seniority shall, in
the absence, disability or inability to act of the Treasurer, perform
the duties and exercise the powers of the Treasurer, and shall perform
such other duties as the Board of Directors shall from time to time
prescribe.
Section 12. Bond. At the option of the Board of Directors, any
officer may be required to give bond for the faithful performance of
his duties.
Section 13. Checks and Other Instruments. All checks, drafts,
notes, acceptances, bills of exchange and other negotiable and non-
negotiable instruments and obligations for the payment of money, and
all contracts, deeds, mortgages and all other papers and documents
whatsoever, unless otherwise provided for by these By-laws, shall be
signed by such officer or officers or such other person or persons and
in such manner as the Board of Directors from time to time shall
designate. If no such designation is made, and unless and until the
Board otherwise provides, the Chairman of the Board, or the President
and the Secretary, or the Chairman of the Board or the President or
the Executive Vice President and the Treasurer, shall have power to
sign all such instruments for, and on behalf of and in the name of the
corporation, which are executed or made in the ordinary course of the
corporation's business.
Section 14. Duties of Officers May be Delegated. If any officer
of the corporation shall be absent or unable to act, or for any other
reason 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 then sitting Board concurs therein.
ARTICLE VI Shares of Stock
Section 1. Payment for Shares of Stock. The corporation shall not
issue shares of stock except for (i) money paid, (ii) labor done or
services actually received, or (iii) property actually received;
provided, however, that shares may also be issued (iv) in
consideration of the cancellation of valid bona fide antecedent debts,
(v) as stock dividends, (vi) pursuant to stock splits, reverse stock
splits, stock combinations, reclassifications of outstanding shares
into shares of another class or classes, exchanges of outstanding
shares for shares of another class or classes, or (vii) other bona
fide changes respecting outstanding shares. 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.
Section 2. Certificates for Shares of Stock. The certificates for
shares of stock of the corporation shall be numbered, shall be in such
form as may be prescribed by the Board of Directors in conformity with
law, and shall be entered in the stock books of the corporation as
they are issued, and such entries shall show the name and address of
the person, firm, partnership, corporation or association to whom each
certificate is issued. Each certificate shall have printed, typed or
written thereon the name of the person, firm, partnership,
corporation, or association to whom it is issued, and number of shares
represented thereby and shall be signed by the Chairman of the Board
or the President or a Vice President, and the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary of the
corporation and sealed with the seal of the corporation, which seal
may be facsimile, engraved or printed. If the corporation has a
registrar, a transfer agent, or a transfer clerk who actually signs
such certificates, the signature of any of the other officers above
mentioned may be facsimile, engraved, or printed. In case any such
officer who has signed or whose, facsimile signature has been placed
upon any such certificate shall have ceased to be such officer before
such certificate is issued, such certificate may nevertheless be
issued by the corporation with the same effect as if such officer were
an officer at the date of its issue.
Section 3. Lost or Destroyed Certificates. In case of the loss or
destruction of any certificate for shares of stock of the corporation,
upon due proof of the registered owner thereof or his representative,
by affidavit of such loss or otherwise, the Chairman of the Board or
the President and Secretary may issue a duplicate certificate or
replacement certificate in its place, upon the corporation being fully
indemnified therefor. Any such officer may request the posting of an
indemnity bond in favor of the corporation whenever and to the extent
that they deem appropriate as a precondition to the issuance of any
duplicate or replacement certificate.
Section 4. Transfers of Shares, Transfer Agent, Registrar.
Transfers of shares of stock shall be made on the stock record or
transfer books of the corporation only by the person named in the
stock certificate, or by his attorney lawfully constituted in writing,
and upon surrender of the certificate therefor. The stock record book
and other transfer records shall be in the possession of the Secretary
(or other person appointed and empowered by the Board to do so) or of
a transfer agent or clerk 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 (or other person appointed and empowered by the Board)
shall be the transfer agent or clerk of the corporation, without the
necessity of any formal action of the Board, and the Secretary or
other person shall perform all of the duties thereof.
Section 5. Closing of Transfer Books, Record Date. The Board of
Directors shall have the power to close the stock transfer books of
the corporation for a period not exceeding seventy days preceding the
date of any meeting of the shareholders, or the date for payment of
any dividend, or the date for the allotment of rights, or 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 as aforesaid, the Board of Directors may fix in advance a date
not exceeding seventy 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, the meeting or any adjournment thereof, or entitled to receive
payment of the dividends, or entitled to the allotment of rights, or
entitled to exercise the rights in respect of the 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 such notice of, and
to vote at, the meeting, and any adjournment thereof, or to receive
payment of the dividend, or to receive the allotment of rights, or to
exercise the rights, as the case may be, notwithstanding any transfer
of any shares on the books of the corporation after the date of
closing of the transfer books or the record date fixed as aforesaid.
If the Board of Directors does not close the transfer books or set a
record date for the determination of the shareholders entitled to
notice of, and to vote at, the meeting, and any adjournment of the
meeting, the record date shall be the date that is twenty days
previous to the meeting; except that, if prior to the meeting written
waivers of notice of the meeting are signed and delivered to the
corporation by all of the shareholders of record at the time the
meeting is convened, only the shareholders who are shareholders of
record at the time the meeting is convened shall be entitled to vote
at the meeting and at any adjournment of the meeting. If the Board of
Directors does not set a record date with respect to any dividend,
allotment of rights, or exercise of rights in respect of the change,
conversion, or exchange of shares, the record date for such purpose
shall be the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
Section 6. Fractional Share Interests or Scrip. The corporation
may issue fractions of a share and it may issue a certificate for a
fractional share, or by action of the Board of Directors, the
corporation may issue in lieu thereof scrip or other evidence of
ownership which shall entitle the holder to receive a certificate for
a full share upon the surrender of such scrip or other evidence of
ownership aggregating a full share. A certificate for a fractional
share shall (but scrip or other evidence of ownership shall not,
unless otherwise provided by resolution of the Board of Directors)
entitle the holder to all of the rights of a shareholder, including
without limitation the right to exercise any voting right, or to
receive dividends thereon or to participate in any of the assets of
the corporation in the event of liquidation. The Board of Directors
may cause such scrip or evidence of ownership (other than a
certificate for a fractional share) to be issued subject to the
condition that it shall become void if not exchanged for share
certificates before a specified date, or subject to the condition that
the shares for which such scrip or evidence of ownership is
exchangeable may be sold by the corporation and the proceeds thereof
distributed to the holders of such scrip or evidence of ownership, or
subject to any other condition which the Board of Directors may deem
advisable.
ARTICLE VII Indemnification
Section 1. Third Party Actions. The corporation shall indemnify
any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (other than
an action by or in the right of the corporation) by reason of the fact
that he is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director or officer
of another corporation, partnership, joint venture, trust, or other
enterprise, against expenses, including attorney fees, judgments,
fines, and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit, or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit, or
proceeding by judgment, order, settlement, conviction, or upon a plea
of nolo contenders or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful.
Section 2. Actions By or in the Rights of the Corporation. The
corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed
action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a
director or officer of the corporation, or is or was serving at the
request of the corporation, as a director or officer of another
corporation, partnership, joint venture, trust, or other enterprise
against expenses, including attorney fees and amounts paid in
settlement, actually and reasonably incurred by him in connection with
the defense or settlement of the action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation, except that no
indemnification shall be made in respect of any claim, issue, or
matter as to which such person shall have been adjudged to be liable
for negligence or misconduct in the performance of his duty to the
corporation unless and only to the extent that the court in which such
action or suit was brought determines upon application that, despite
the adjudication of liability and in view of all the circumstances of
the case, the person is fairly and reasonably entitled to indemnity
for such expenses as the court shall deem proper.
Section 3. Indemnity if Successful. To the extent that a
director, officer, employee, or agent of the corporation has been
successful on the merits or otherwise in defense of any action, suit,
or proceeding referred to in Sections I and 2 of this Article, or in
defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorney fees) actually and reasonably
incurred by him in connection with the action, suit, or proceeding.
Section 4. Standard of Conduct. Any indemnification under
Sections 1 and 2 of this Article (unless ordered by a court) shall be
made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standard
of conduct set forth in this Article. The determination shall be made
(i) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit, or
proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (iii) by the
shareholders by majority vote of the shares eligible to vote for
directors and actually voted, where shares held by the individual
about whom such indemnification is at issue shall not be eligible to
vote.
Section 5. Expenses. Expenses incurred in defending a civil or
criminal action, suit, or proceeding may be paid by the corporation in
advance of the final disposition of the action, suit, or proceeding as
authorized by the Board of Directors in the specific case upon receipt
of an undertaking by or on behalf of the director or officer to repay
such amount unless it shall ultimately be determined that he is
entitled to be indemnified by the corporation as authorized in this
Article.
Section 6. Non-exclusivity. The indemnification provided by this
Article shall not be deemed exclusive of any other rights to which
those seeking indemnification may be entitled under the Articles of
Incorporation, these By-laws, or any agreement, vote of the
shareholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another capacity
while holding such office, and shall continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of
the heirs, personal representatives, and administrators of such a
person.
Section 7. Further Indemnity Permissible. The corporation shall
have the power to give further indemnity, in addition to the indemnity
authorized or contemplated under the various sections of this Article,
including Section 6 thereof, to any person who is or was a director,
officer, employee, or agent, or to any person who is or was serving at
the request of the corporation as a director, officer, employee, or
agent of another corporation, partnership, joint venture, trust, or
other enterprise, provided such further indemnity is either (i)
authorized, directed, or provided for in the Articles of Incorporation
of the corporation or a duly adopted amendment thereof or (ii)
authorized, directed, or provided for in these By-laws or in any
agreement of the corporation which has been adopted by the
shareholders of the corporation, and provided further that no such
indemnity shall indemnify any person from or on account of such
person's conduct which has been finally adjudged to have been
knowingly fraudulent, deliberately dishonest, or willful misconduct.
Nothing in this Section 7 shall be deemed to limit the power of the
corporation under Section 6 of this Article to enact By-laws or to
enter into agreements without shareholder adoption of the same.
Section 8. Insurance. The corporation shall have power to
purchase and maintain insurance on behalf of any person who is or was
a director, officer, employee, or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status
as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of this
Article.
Section 9. Corporation. For the purpose of this Article,
references to "the corporation" include all constituent corporations
absorbed in a consolidation or merger as well as the resulting or
surviving corporation so that any person who is or was a director or
officer of such a constituent corporation or is or was serving at the
request of such constituent corporation as a director or officer of
another corporation, partnership, joint venture, trust, or other
enterprise shall stand in the same position under the provisions of
this Article with respect to the resulting or surviving corporation as
he would if he had served the resulting or surviving corporation in
the same capacity.
Section 10. Other Definitions. For purposes of this Article, the
term "other enterprise" shall include without limitation employee
benefit plans; the term "fines" shall include without limitation any
excise taxes assessed on a person with respect to an employee benefit
plan; and the term "serving at the request of the corporation" shall
include without limitation any service as a director, officer,
employee, or agent of the corporation which imposes duties on, or
involves services by, such director, officer, employee, or agent with
respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner "not opposed to the best interests of the
corporation" as referred to in this Article.
Section 11. Indemnity for Agents and Employees. The corporation
may, by resolution duly adopted by a majority of the disinterested
members of the Board of Directors, grant such indemnity rights and
reimbursement for such expenses as it determines to be appropriate to
any person who was or is a party to any threatened, pending, or
completed action or suit, whether civil, criminal, administrative, or
investigative, including any action by or in the right of the
corporation, by reason of the fact that such person is or was an agent
or employee of the corporation, or is or was serving as an agent or
employee, at the request of the corporation, of another corporation,
partnership, joint venture, trust, or other enterprise. Any such
grant of indemnification shall be only to the extent so provided in
the resolution granting indemnification, but shall, in no event, be
greater than the rights of indemnification and reimbursement of
expenses granted to directors and officers of this corporation.
ARTICLE VIII General Provisions
Section 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:
The determination of what part of the consideration received for
shares of the corporation shall be capital;
Increasing capital;
Transferring surplus to capital;
The consideration to be received by the corporation for its
shares; and
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.
Section 2. Dividends. Ordinary dividends upon the shares of the
corporation, subject to the provisions of the Articles of
incorporation and applicable law, may be declared by the Board of
Directors at any regular or special meeting. Dividends may be paid in
cash, in property, or in shares of its stock.
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.
Section 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 directors from time to
time, in their reasonable discretion, think proper as a reserve fund
or funds, to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such
other purposes as the Board of Directors shall determine in the best
interests of the corporation, and the Board may abolish any such
reserve in the manner in which it was created.
Section 4. Fiscal Year. The Board of Directors shall have the
paramount power to fix, and from time to time, to change, the fiscal
year of the corporation. In the absence of action by the Board of
Directors, however, the fiscal year of the corporation shall be
determined and signified by the filing of the Corporation's first
federal income tax return, and shall so continue until such time, if
any, as the fiscal year shall be changed by the Board of Directors.
Section 5. Notices. Except as otherwise specifically provided
herein with respect to notice to shareholders or otherwise, or as
otherwise required by law, all notices required to be given by any
provision of these By-laws shall be in writing and shall be deemed to
have been given: (i) when received if delivered in person; (ii) on the
date of acknowledgment or confirmation of receipt if sent by telex,
facsimile, or other electronic transmission; (iii) one day after
delivery, properly addressed and fees prepaid, to a reputable courier
for same day or overnight delivery; or (iv) two days after being
deposited, properly addressed and postage prepaid, in the United
States mail.
Section 6. Amendments to By-laws. Except as specifically
provided otherwise herein, the By-laws of the corporation may from
time to time be repealed, amended or altered, or new and/or restated
By-laws may be adopted, in either of the following ways:
By such vote of the shareholders entitled to vote at any annual
or special meeting thereof as may be required by the Articles of
Incorporation, and if there is no such specific requirement, then by
the vote of a majority of said shareholders; or
By resolution adopted by the Board of Directors if such power
shall have been vested in the Board of Directors by the Articles of
Incorporation; provided, however, that such power shall be exercisable
only by such number or percentage of the Directors as is required by
the Articles of Incorporation, and if there is no such specific
requirement, then by a majority of the Board of Directors.
Notwithstanding the foregoing, the Board of Directors shall not have
the power to suspend, repeal, amend or otherwise alter the By-laws or
portion thereof enacted by the shareholders if at the time of such
enactment or thereafter the shareholders shall so expressly provide.
