f8kdirbylaw.htm
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SECURITIES
AND EXCHANGE COMMISSION
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Washington,
D.C. 20549
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FORM
8-K
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Current
Report
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Pursuant
to Section 13 or 15(d) of the
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Securities
Exchange Act of 1934
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Date
of Report (Date of earliest event reported): December 8, 2008 (December 2,
2008)
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Commission
File
Number
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Registrant,
State of Incorporation,
Address
and Telephone Number
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I.R.S.
Employer
Identification
Number
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001-32206
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GREAT
PLAINS ENERGY INCORPORATED
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43-1916803
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(A
Missouri Corporation)
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1201
Walnut Street
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Kansas
City, Missouri 64106
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(816)
556-2200
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NOT
APPLICABLE
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(Former
name or former address,
if
changed since last report)
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Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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[ ]
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange
Act
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(17
CFR 240.14d-2(b))
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01
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Entry
into a Material Definitive
Agreement
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Revised Indemnification
Agreements
On
December 2, 2008, the Board of Directors (the “Board”) of Great Plains Energy
Incorporated (“Great Plains Energy” or the “Company”) authorized a revised form
of indemnification agreement to be entered into with the directors and officers
of the Company and its public utility subsidiaries. The new form of
indemnification agreement modifies certain terms of the indemnification
agreements previously entered into between the Company and the directors and
officers of the Company and its public utility subsidiaries. The form of the
revised indemnification agreement is filed as Exhibit 10.1 to this Form 8-K and
incorporated by reference herein.
The
Company expects to enter into substantially similar indemnification agreements
with future directors and officers of the Company and its public utility
subsidiaries. The revisions include, in Section 7 of the form, an
explicit presumption that a director or officer who makes a demand for
indemnification under the agreement is entitled to such indemnification, and
requires the Company to establish by clear and convincing evidence that the
director or officer is not entitled to such indemnification. The revisions also
clarify and expand, in Section 1(b) of the form, the types of corporate
transactions that would be deemed to result in a change in control of the
Company.
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Item
5.02
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Departure
of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain
Officers
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Election of New
Director
On
December 2, 2008, the Board of Great Plains Energy, adopted a resolution
increasing the number of directors from ten to eleven, and elected Gary D.
Forsee to fill the position. Mr. Forsee was also appointed to the
Audit Committee and the Compensation and Development Committee of the
Board. There is no arrangement or understanding between Mr. Forsee
and any other persons pursuant to which Mr. Forsee was selected as a
director.
As a
Great Plains Energy director, Mr. Forsee will receive an annual retainer and
attendance fees for each Board, Board Committee and other meeting
attended. The annual retainer is currently $85,000, of which $50,000
is paid in Great Plains Energy common stock through the Great Plains Energy
Amended Long-Term Incentive Plan. Part or all of the common stock
payment may be converted, at the director’s election, into director deferred
share units and paid on a deferred basis. The attendance fee is
currently $1,000 per meeting. The receipt of part or all of the cash
retainer and attendance fees may be deferred through the Great Plains Energy
Nonqualified Deferred Compensation Plan. Great Plains Energy pays or
reimburses directors for travel, lodging and related expenses they incur in
attending Board and Committee meetings, which has in the past and may in the
future include the expenses incurred by directors’ spouses in accompanying
directors to one Board meeting per year. Great Plains Energy also
matches on a two-for-one basis up to $5,000 per year (which would result in up
to a $10,000 match) of charitable donations made by a director to 501(c)(3)
organizations that meet its strategic giving priorities and are located in its
generation and service communities.
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Item
5.03
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Amendments
to Articles of Incorporation or Bylaws; Change to Fiscal
Year
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On
December 2, 2008, the Board approved amendments to the Company’s By-laws, which
changes were effective immediately upon approval. The amendments
revise the advance notice provisions in Article II Section 13 and Article III
Section 20 of the By-laws, and revise various references in other sections of
the By-laws. Before the amendments, the advance notice provisions
regarding shareholder proposals for business to be conducted at shareholder
meetings were contained in Article II Section 13, and the advance notice
provisions regarding director nominations for directors were contained in
Article III Section 20. The amendments, among other things, modified
the advance notice provisions for director nominations and other business and
moved the provisions related to director nominations to Article II Section
13. The following description of the principal features of the
amendments do not cover all of the changes to the By-laws, and is qualified in
its entirety by reference to the full text of the By-laws, as amended, (with the
amendments marked) which is filed as Exhibit 3.2 to this Form 8-K and is
incorporated by reference herein.
The
amendments, among other matters:
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§
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Separate
the advance notice requirements for director nominations by shareholders
at an annual or special meeting of shareholders from the advance notice
requirements for other business proposed by shareholders to be brought
before an annual shareholders meeting. No change was made to
the advance notice time periods, except regarding director nominations by
shareholders at a special meeting, which is discussed
below.
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Require
the proposing shareholder to be (1) a shareholder of record as of the
record date for the meeting and at the time of giving advance notice, and
(2) entitled to vote at the meeting.
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Distinguish
the process shareholders must follow to request inclusion of proposals in
the Company’s proxy statement under federal proxy rules from the advance
notice requirements set forth in the By-laws.
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Provide
that no business may be conducted at special meetings of shareholders
except as brought before the meetings pursuant to the Company’s notice of
such meetings, and that shareholder nominations of persons for election to
the Board at special meetings may be made only if the Company’s notice of
meeting specifies election of directors. Shareholder notice of
director nomination for election at a special meeting must be delivered no
earlier than 120 days, and not later than 90 days, prior to the date of
the special meeting or not later than 10 days following the date on which
public notice is given of the date of the special meeting and the director
nominees proposed by the Board.
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§
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Expand
the disclosures a Proposing Person must provide when submitting a director
nomination and/or “other business” proposed for consideration at a
meeting. The term “Proposing Person” is defined to mean (i) the
shareholder providing the notice of the director nomination and/or “other
business” proposal, (ii) the beneficial owner of the shares, if different,
on whose behalf the director nomination and/or “other business” proposal
is made, (iii) any affiliate or associate of the shareholder or beneficial
owner, and (iv) any other person with whom the shareholder, beneficial
owner and any of their respective affiliates or associates is “Acting in
Concert” (as that term is defined in Article II Section 13(d)(1) of the
By-laws). The required disclosures include, among other things,
(i) certain details about all ownership interests in the Company by the
Proposing Person, including any hedging, derivative, short or other
economic interests and any rights to vote the Company’s shares, (ii) all
material relationships between and among the Proposing Person and each
proposed director nominee, and (iii) all arrangements or agreements
between the Proposing Person in connection with the nomination and/or
proposal.
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§
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Require
the shareholder’s proposed nominee for director to include with the
advance notice a questionnaire providing information about the proposed
nominee’s background and qualifications and the background of any other
person or entity on whose behalf the nomination is being made, as well as
a written representation and agreement regarding voting commitments,
compensation, reimbursement or indemnification arrangements, and
compliance with corporate governance and other policies and guidelines of
the Company.
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Require
the Proposing Person submitting a director nomination to also comply with
all applicable requirements of the Securities Exchange Act of 1934, as
amended.
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Require
the shareholder providing advance notice to update and supplement the
notice, as necessary, so that the information is true and correct as of
the record date for the meeting and as of the date of the meeting or any
adjournment or postponement thereof.
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§
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Correct
various references to the Articles of Incorporation of the
Company.
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Provide
that the location of the Company’s registered office and name of its
registered agent in the State of Missouri shall be as stated in the
Articles of Incorporation or as determined from time to time by the Board
and on file in appropriate public offices in the State of
Missouri.
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Item
9.01
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Financial
Statements and Exhibits
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(d) Exhibits
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3.1
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By-laws
of Great Plains Energy Incorporated, as amended December 2,
2008.
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3.2
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By-laws
of Great Plains Energy Incorporated, as amended December 2, 2008 (marked
to show the changes resulting from the amendment and restatement reported
in this Current Report on Form 8-K).
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10.1
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Form
of Indemnification Agreement with officers and
directors.
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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GREAT
PLAINS ENERGY INCORPORATED
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/s/
Terry Bassham
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Terry
Bassham
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Executive
Vice President- Finance & Strategic Development and Chief Financial
Officer
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Date: December
8, 2008
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Exhibit
Index
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Exhibit
No.
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Title
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3.1
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By-laws
of Great Plains Energy Incorporated, as amended December 2,
2008.
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3.2
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By-laws
of Great Plains Energy Incorporated, as amended December 2, 2008 (marked
to show the changes resulting from the amendment and restatement reported
in this Current Report on Form 8-K).
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10.1
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Form
of Indemnification Agreement with officers and
directors.
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ex3_1.htm
Exhibit
3.1
GREAT
PLAINS ENERGY INCORPORATED
BY-LAWS
AS
AMENDED DECEMBER 2, 2008
GREAT
PLAINS ENERGY INCORPORATED
BY-LAWS
ARTICLE
I
Offices
Section 1. The location of
the registered office and the name of the registered agent of the Company in the
State of Missouri shall be as stated in the Articles of Incorporation or as
determined from time to time by the Board of Directors and on file in the
appropriate public offices of the State of Missouri pursuant to applicable
provisions of law.
Section 2. The Company also
may have offices at such other places either within or without the State of
Missouri as the Board of Directors may from time to time determine or the
business of the Company may require.
ARTICLE
II
Shareholders
Section 1. All meetings of
the shareholders shall be held at such place within or without the State of
Missouri as may be selected by the Board of Directors or Executive Committee,
but if the Board of Directors or Executive Committee shall fail to designate a
place for said meeting to be held, then the same shall be held at the principal
place of business of the Company.
Section 2. An annual meeting
of the shareholders shall be held on the first Tuesday of May in each year, if
not a legal holiday, and if a legal holiday, then on the first succeeding day
which is not a legal holiday, at ten o'clock in the forenoon, for the purpose of
electing directors of the Company and transacting such other business as may
properly be brought before the meeting.
Section 3. Unless otherwise
expressly provided in the Articles of Incorporation of the Company with respect
to the Cumulative Preferred Stock, Cumulative No Par Preferred Stock or
Preference Stock, special meetings of the shareholders may only be called by the
Chairman of the Board, by the President or at the request in writing of a
majority of the Board of Directors. Special meetings of shareholders
of the Company may not be called by any other person or persons.
Section 4. Written or
printed notice of each meeting of the shareholders, annual or special, shall be
given in the manner provided in the corporation laws of the State of
Missouri. In case of a call for any special meeting, the notice shall
state the time, place and purpose of such meeting.
Any notice of a shareholders' meeting
sent by mail shall be deemed to be delivered when deposited in the United States
mail with postage thereon prepaid addressed to the shareholder at his address as
it appears on the records of the Company.
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In addition to the written or printed
notice provided for in the first paragraph of this Section, published notice of
each meeting of shareholders shall be given in such manner and for such period
of time as may be required by the laws of the State of Missouri at the time such
notice is required to be given.
Section 5. Attendance of a
shareholder at any meeting shall constitute a waiver of notice of such meeting
except where a shareholder attends a meeting for the express purpose of
objecting to the transaction of any business because the meeting is not lawfully
called or convened.
Section 6. At least ten days
before each meeting of the shareholders, a complete list of the shareholders
entitled to vote at such meeting, arranged in alphabetical order with the
address of and the number of shares held by each, shall be prepared by the
officer having charge of the transfer book for shares of the
Company. Such list, for a period of ten days prior to such meeting,
shall be kept on file at the registered office of the Company and shall be
subject to inspection by any shareholder at any time during usual business
hours. Such list shall also be produced and kept open at the time and
place of the meeting and shall be subject to the inspection of any shareholder
during the whole time of the meeting. The original share ledger or
transfer book, or a duplicate thereof kept in the State of Missouri, shall be
prima facie evidence as to who are the shareholders entitled to examine such
list or share ledger or transfer book or to vote at any meeting of
shareholders.
Failure to comply with the requirements
of this Section shall not affect the validity of any action taken at any such
meeting.
Section 7. Each outstanding
share entitled to vote under the provisions of the Articles of Incorporation of
the Company shall be entitled to one vote on each matter submitted at a meeting
of the shareholders. A shareholder may vote either in person or by
proxy executed in writing by the shareholder or by his duly authorized
attorney-in-fact. No proxy shall be valid after eleven months from
the date of its execution, unless otherwise provided in the proxy.
At any election of directors of the
Company, each holder of outstanding shares of any class entitled to vote thereat
shall have the right to cast as many votes in the aggregate as shall equal the
number of shares of such class held, multiplied by the number of directors to be
elected by holders of shares of such class, and may cast the whole number of
votes, either in person or by proxy, for one candidate, or distribute them among
two or more candidates as such holder shall elect.
Section 8. At any meeting of
shareholders, a majority of the outstanding shares entitled to vote represented
in person or by proxy shall constitute a quorum for the transaction of business,
except as otherwise provided by statute or by the Articles of Incorporation or
by these By-laws. The holders of a majority of the shares represented
in person or by proxy and entitled to vote at any meeting of the shareholders
shall have the right successively to adjourn the meeting to a specified date not
longer than ninety days after any such adjournment, whether or not a quorum be
present. The time and place to which any such adjournment is taken
shall be publicly announced at the meeting, and no notice need be given of any
such adjournment to shareholders not present at the
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meeting. At
any such adjourned meeting at which a quorum shall be present, any business may
be transacted which might have been transacted at the meeting as originally
called.
Section 9. The vote for
directors and the vote on any other question that has been properly brought
before the meeting in accordance with these By-laws shall be by
ballot. Each ballot cast by a shareholder must state the name of the
shareholder voting and the number of shares voted by him and if such ballot be
cast by a proxy, it must also state the name of such proxy. All
elections and all other questions shall be decided by plurality vote, unless the
question is one on which by express provision of the statutes or of the Articles
of Incorporation or of these By-laws a different vote is required, in which case
such express provision shall govern and control the decision of such
question.
Section 10. The Chairman of
the Board, or in his absence the President of the Company, shall convene all
meetings of the shareholders and shall act as chairman thereof. The
Board of Directors may appoint any shareholder to act as chairman of any meeting
of the shareholders in the absence of the Chairman of the Board and the
President, and in the case of the failure of the Board so to appoint a chairman,
the shareholders present at the meeting shall elect a chairman who shall be
either a shareholder or a proxy of a shareholder.
The Secretary of the Company shall act
as secretary of all meetings of shareholders. In the absence of the
Secretary at any meeting of shareholders, the presiding officer may appoint any
person to act as secretary of the meeting.
Section 11. At any meeting
of shareholders where a vote by ballot is taken for the election of directors or
on any proposition, the person presiding at such meeting shall appoint not less
than two persons, who are not directors, as inspectors to receive and canvass
the votes given at such meeting and certify the result to
him. Subject to any statutory requirements which may be applicable,
all questions touching upon the qualification of voters, the validity of
proxies, and the acceptance or rejection of votes shall be decided by the
inspectors. In case of a tie vote by the inspectors on any question,
the presiding officer shall decide the issue.
Section 12. Unless otherwise
provided by statute or by the Articles of Incorporation, any action required to
be taken by shareholders may be taken without a meeting if a consent 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 13. Notice of
Shareholder Business and Nominations.
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(a)
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Business
Brought Before a Meeting.
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(1) At
an annual meeting of shareholders, only such business shall be conducted that is
properly brought before the meeting. To be properly brought before an
annual meeting, business must be (i) specified in the Company's notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors (or any duly authorized committee thereof), (ii) brought before
the meeting by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (iii) otherwise properly
brought
before the meeting by a shareholder who: (A) was a shareholder of record at
the time of giving the notice provided for in this Section 13(a) and on the
record date for the determination of shareholders entitled to vote at the annual
meeting, (B) is entitled to vote at the meeting, and (C) complied with
all of the notice procedures set forth in this Section 13(a) as to such business
(except for proposals made in accordance with Rule 14a-8 under the Exchange Act
(as defined in Section 13(d), which are addressed in Section 13
(a)(5)). The foregoing clause (iii) shall be the exclusive means
for a shareholder to propose business to be brought before an annual meeting of
the shareholders. Shareholders seeking to nominate persons for
election to the Board of Directors must comply with the notice procedures set
forth in Section 13 (b) of these By-laws, and this Section 13 (a) shall not be
applicable to nominations except as expressly provided therein.
(2) Without
qualification, for business to be properly brought before an annual meeting by a
shareholder pursuant to clause (iii) of paragraph (a) (1) of this Section 13,
the shareholder must have given Timely Notice (as defined in Section
13 (d)) thereof in writing to the Secretary of the Company and any such proposed
business must constitute a proper matter for shareholder action. In no event
shall the public announcement of an adjournment or postponement of an annual
meeting commence a new time period (or extend any time period) for the giving of
a shareholder's notice as described above.
(3) Such
shareholder's notice shall set forth:
(i) (A) the
name and address of the shareholder providing the notice, as they appear on the
Company's books, and of the other Proposing Persons (as defined in Section 13
(d)), (B) the class or series and number of shares of the Company that are,
directly or indirectly, owned of record, and the class and number of shares
beneficially owned (as defined in Rule 13d-3 under the Exchange Act) by each
Proposing Person, except that any such Proposing Person shall be deemed to
beneficially own any shares of any class or series of the Company as to which
such Proposing Person has a right to acquire beneficial ownership at any time in
the future, and (C) a representation that each Proposing Person will notify the
Company in writing of the class and number of shares owned of record, and of the
class and number of shares owned beneficially, in each case, as of the record
date for the meeting;
(ii) as
to each Proposing Person: (A) any Derivative Instruments (as defined in
Section 13(d)) that are, directly or indirectly, owned or held by such Proposing
Person; (B) any proxy (other than a revocable proxy given in response to a
public proxy solicitation made pursuant to, and in accordance with, the Exchange
Act), agreement, arrangement, understanding or relationship pursuant to which
such Proposing Person, directly or indirectly, has or shares a right to vote any
shares of any class or series of the Company; (C) any Short Interests (as
defined in Section 13(d)), that are held directly or indirectly by such
Proposing Person; (D) any rights to dividends on the shares of any class or
series of the Company owned beneficially by such Proposing Person that are
separated or
separable
from the underlying shares of the Company; (E) any
performance-
related
fees (other than an asset based fee) that such Proposing Person is entitled to
receive based on any increase or decrease in the price or value of shares of any
class or series of the Company, Derivative Instruments or Short Interests, if
any, including, without limitation, any such interests held by persons sharing
the same household as such Proposing Person; and (F) any plans or proposals that
the Proposing Person may have that relate to or may result in the acquisition or
disposition of securities of the Company, an extraordinary corporate transaction
(such as the sale of a material amount of assets of the Company or any of its
subsidiaries, a merger, reorganization or liquidation) involving the Company or
any of its subsidiaries, any change in the Board of Directors or management of
the Company (including any plans or proposals to change the number or term of
directors or to fill any existing vacancies on the Board of Directors), any
material change in the present capitalization or dividend policy of the Company,
any change in the Company’s Articles of Incorporation or By-laws, causing a
class of securities of the Company to be delisted from a national securities
exchange or any other material change in the Company’s business or corporate
structure or any action similar to those listed above;
(iii) as
to each matter proposed to be brought by any Proposing Person before the annual
meeting: (A) a brief description of the business desired to be brought
before the annual meeting, the reasons for conducting such business at the
meeting, and any material interest of such Proposing Person in such business and
(B) a reasonably detailed description of all agreements, arrangements,
understandings or relationships between or among any of the Proposing Persons
and/or any other persons or entities (including their names) in connection with
the proposal of such business by such Proposing Person; and
(iv) any
other information relating to any Proposing Person that would be required to be
disclosed in a proxy statement or other filing required to be made in connection
with solicitations of proxies for the proposal pursuant to Section 14 of
the Exchange Act.
(4) A
shareholder providing notice of business proposed to be brought before an annual
meeting shall further update and supplement such notice, if necessary, so that
the information provided or required to be provided in such notice pursuant to
this Section 13(a) shall be true and correct as of the record date for the
meeting and as of the date of the meeting or any adjournment or postponement
thereof, as the case may be, and such update and supplement shall be delivered
to or mailed and received by the Secretary at the principal executive offices of
the Company not later than five (5) business days after the later of the
record date for the meeting or the date notice of such record date is first
Publicly Disclosed (in the case of the update and supplement required to be made
as of the record date), and as promptly as practicable (in the case of any
update or supplement required to be made after the record date).
(5) This
Section 13(a) is expressly intended to apply to any business proposed to be
brought before an annual meeting, regardless of whether or not such proposal is
made by means of an independently financed proxy solicitation. In
addition to the foregoing provisions of this Section 13(a), each Proposing
Person shall also comply with all applicable requirements of the Exchange Act
with respect to the matters set forth in this Section 13(a). This
Section 13 shall not be deemed to affect (i) the rights of shareholders to
request inclusion of proposals in the Company's proxy statement pursuant to Rule
14a-8 under the Exchange Act and, if required by such rule to be included in the
Company's proxy statement, to include a description of such proposal in the
notice of meeting and to be submitted for a shareholder vote at the applicable
meeting, or (ii) the rights of the holders of any series of Preferred Stock
if and to the extent provided under law, the Articles of Incorporation or these
By-laws.
(6) Notwithstanding
satisfaction of the provisions of this Section 13(a), the proposed business
described in the notice may be deemed not to be properly brought before the
meeting if, pursuant to the Articles of Incorporation, the By-laws, state law or
any rule or regulation of the Securities and Exchange Commission, it was offered
as a shareholder proposal and was omitted, or had it been so offered, it could
have been omitted, from the notice of, and proxy material for, the meeting (or
any supplement thereto) authorized by the Board of Directors.
(7) In
the event Timely Notice is given pursuant to Section 13(a)(2) and the business
described therein is not disqualified pursuant to this Section 13(a), such
business may be presented by, and only by, the shareholder who shall have given
the notice required by this Section 13(a), or a representative of such
shareholder who is qualified under the law of the State of Missouri to present
the proposal on the shareholder's behalf at the meeting.
(8) Notwithstanding
anything in these By-laws to the contrary: (i) no business shall be
conducted at any annual meeting except in accordance with the procedures set
forth in this Section 13(a) or, subject to Section 13(a)(1) or Section 13(a)(5),
as permitted under Rule 14a-8 under the Exchange Act (other than the nomination
of a person for election as a director, which is governed by Section 13(b)), and
(ii) unless otherwise required by law, if a Proposing Person intending to
propose business at an annual meeting pursuant to Section 13(a)(1)(iii) does not
provide the information required under Section 13(a)(2)-(4) within the periods
specified therein, or the shareholder who shall have given the notice required
by Section 13(a) (or a qualified representative of the shareholder) does not
appear at the meeting to present the proposed business, such business shall not
be transacted, notwithstanding that proxies in respect of such business may have
been received by the Company. The chairman of the annual meeting
shall, if the facts warrant, determine and declare to the meeting that business
was not properly brought before the meeting in accordance with the provisions of
this Section 13(a) and any such business not properly brought before the meeting
shall not be transacted. The requirements of this Section 13(a) are
included to provide the Company notice of a shareholder's intention to bring
business before an annual meeting and shall in no event be construed as
imposing
upon any
shareholder the requirement to seek approval from the Company as a condition
precedent to bringing any such business before an annual meeting.
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(b)
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Nominations
of Directors
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(1) Nominations
of persons for election to the Board of Directors at an annual meeting or
special meeting (but only if the Board of Directors has first determined that
directors are to be elected at such special meeting) may be made at such meeting
(i) by or at the direction of the Board of Directors (or a duly authorized
committee thereof), or (ii) by any shareholder who: (A) was
a shareholder of record at the time of giving the notice provided for in this
Section 13(b) and on the record for determination of shareholders entitled to
vote at the meeting; (B) is entitled to vote at the meeting; and
(C) complied with the notice procedures set forth in this Section 13(b) as
to such nomination. Section 13(b)(1)(ii) of these By-laws shall be
the exclusive means for a shareholder to propose any nomination of a person or
persons for election to the Board of Directors to be considered by the
shareholders at an annual meeting or special meeting.
(2) Without
qualification, for nominations to be made at an annual meeting by a shareholder,
the shareholder must (i) provide Timely Notice (as defined in Section 13(d)
in writing and in proper form to the Secretary of the Company and
(ii) provide any updates or supplements to such notice at the times and in
the forms required by this Section 13(b). Without qualification, if
the Board of Directors has first determined that directors are to be elected at
a special meeting, then for nominations to be made at a special meeting by a
shareholder, the shareholder must (i) provide notice thereof in writing and
in proper form to the Secretary of the Company at the principal executive
offices of the Company not earlier than the one hundred twentieth
(120th) day prior to such special meeting and not later than the ninetieth
(90th) day prior to such special meeting or, if later, the tenth (10th) day
following the day on which the date of such special meeting was first Publicly
Disclosed and (ii) provide any updates or supplements to such notice at the
times and in the forms required by this Section 13(b). In no event
shall any adjournment or postponement of an annual meeting or special meeting,
or the announcement thereof, commence a new time period for the giving of a
shareholder notice as described above.
(3) To
be in proper form for purposes of this Section 13(b), a shareholder's notice to
the Secretary pursuant to this Section 13(b) must set forth:
(i) (A) the
name and address of Proposing Person providing the notice, as they appear on the
Company's books, and of the other Proposing Persons, (B) any Material
Ownership Interests (as defined in Section 13(d)) of each Proposing Person, as
well as the information set forth in Section 13(a)(3)(ii), clause (F) regarding
each Proposing Person and (C) any other information relating to such Proposing
Person that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitation of proxies for the
election of directors in a contested election pursuant to Section 14 of the
Exchange Act; and
(ii) as
to each person whom the shareholder proposes to nominate for election as a
director, (A) all information with respect to such proposed nominee that
would be required to be set forth in a shareholder's notice pursuant to this
Section 13(b) if such proposed nominee were a Proposing Person; (B) all
information relating to such proposed nominee that is required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors in a contested election
pursuant to Section 14 of the Exchange Act (including such proposed
nominee's written consent to being named in the proxy statement as a nominee, if
applicable, and to serving as a director if elected), (C) a description of
all direct and indirect compensation and other material monetary agreements,
arrangements and understandings during the past three years, and any other
material relationships, between or among any Proposing Person, on the one hand,
and each proposed nominee, and his or her respective affiliates and associates,
and any other persons Acting in Concert with such nominee, affiliates,
associates and other person, on the other hand, including, without limitation,
all information that would be required to be disclosed pursuant to Item 404
under Regulation S-K if the Proposing Person were the "registrant" for purposes
of such rule and the proposed nominee were a director or executive officer of
such registrant, and a representation that each Proposing Person will notify the
Company in writing of any such relationships, arrangements, agreements or
understandings as of the record date for the meeting, promptly following the
later of such record date or the date the notice of such record date is first
Publicly Disclosed; and (D) a completed and signed questionnaire,
representation and agreement as provided in Section 13(b)(7).
(4) The
Company may require any proposed nominee to furnish such other information as
may reasonably be required by the Company to determine the eligibility of such
proposed nominee to serve as an independent director of the Company or that
could be material to a reasonable shareholder's understanding of the
independence or lack of independence of such nominee.
(5) A
shareholder providing notice of any nomination proposed to be made at a meeting
shall further update and supplement such notice, if necessary, so that the
information provided or required to be provided in such notice pursuant to this
Section 13(b) shall be true and correct as of the record date for the meeting
and as of the date of the meeting or any adjournment or postponement thereof, as
the case may be, and such update and supplement shall be delivered to or mailed
and received by the Secretary at the principal executive offices of the Company
not later than five (5) business days after the later of the record date
for the meeting or the date notice of such record date is first Publicly
Disclosed (in the case of the update and supplement required to be made as of
the record date), and as promptly as practicable in the case of any update or
supplement required to be made after the record date.
(6) Notwithstanding
anything in the Timely Notice requirement in the first sentence of Section
13(b)(2) to the contrary, in the event that the number of directors
to
be
elected to the Board of Directors is increased and there is no public
announcement by the Company naming all of the nominees for director or
specifying the size of the increased Board of Directors at least one hundred
(100) days prior to the first anniversary of the preceding year's annual meeting
of shareholders, a shareholder's notice required by this Section 13(b) shall
also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to or mailed and
received by the Secretary at the principal executive offices of the Company not
later than the close of business on the tenth (10th) day following the day on
which such nominees or increased size was first Publicly Disclosed by the
Company.
(7) To
be eligible to be a stockholder proposed nominee for election as a director of
the Company, a person must deliver (in accordance with the time periods
prescribed by delivery of notice under this Section 13(b) to the Secretary at
the principal executive offices of the Company a written questionnaire with
respect to the background and qualification of such person and the background of
any other person or entity on whose behalf the nomination is being made (which
questionnaire shall be provided by the Secretary upon written request) and a
written representation and agreement (in form provided by the Secretary upon
written request) that such person (i) is not and will not become a party to
(A) any Voting Commitment (as defined in Section 13(d) that has not been
disclosed to the Company or (B) any Voting Commitment that could limit or
interfere with such person's ability to comply, if elected as a director of the
Company, with such person's fiduciary duties under applicable law, (ii) is
not, and will not become a party to, any agreement, arrangement or understanding
with any person or entity other than the Company with respect to any direct or
indirect compensation, reimbursement or indemnification in connection with
service or action as a director that has not been disclosed therein, and
(iii) in such person's individual capacity, if elected as a director of the
Company, will comply with applicable Publicly Disclosed corporate governance,
conflict of interest, confidentiality and stock ownership and trading policies
and guidelines of the Company.
(8) In
addition to the foregoing provisions of this Section 13(b), each Proposing
Person shall also comply with all applicable requirements of the Exchange Act
with respect to the matters set forth in this Section 13.
(9) Only
such persons who are nominated in accordance with the procedures set forth in
this Section 13(b) shall be eligible to serve as directors. Except as
otherwise provided by law, the Articles of Incorporation or these By-laws, the
chairman of the meeting shall have the power and duty to determine whether a
nomination was made in accordance with the procedures set forth in this Section
13(b) and, if any proposed nomination is not in compliance with this Section
13(b), to declare that such defective nomination shall be disregarded,
notwithstanding that proxies in respect of such nomination may have been
received by the Company.
(c) Special
Meetings of Shareholders. Only such business shall be conducted at a special
meeting of shareholders as shall have been brought before the meeting pursuant
to the Company's notice of meeting. Nominations of persons for election to the
Board of Directors may
(d) Definitions. For
purposes of Section 13, of these By-laws, the following terms have the meanings
specified or referred to below:
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(1)
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"Acting
in Concert" means a person will be deemed "Acting in Concert" with another
person for purposes of these By-laws if such person knowingly acts
(whether or not pursuant to an express agreement, arrangement or
understanding) in concert with, or towards a common goal relating to the
management, governance or control of the Company in parallel with, such
other person where (A) each person is conscious of the other person's
conduct or intent and this awareness is an element in their
decision-making processes and (B) at least one additional factor
suggests that such persons intend to act in concert or in parallel, which
such additional factors may include, without limitation, exchanging
information (whether publicly or privately), attending meetings,
conducting discussions, or making or soliciting invitations to act in
concert or in parallel; provided, that a person shall not be deemed to be
Acting in Concert with any other person solely as a result of the
solicitation or receipt of revocable proxies from such other person in
connection with a public proxy solicitation pursuant to, and in accordance
with, the Exchange Act. A person that is Acting in Concert with
another person shall also be deemed to be Acting in Concert with any third
party who is also Acting in Concert with the other
person.
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(2)
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"Derivative
Instruments" shall mean (i) any option, warrant, convertible
security, stock appreciation right, or similar right with an exercise,
conversion or exchange privilege or settlement payment or mechanism at a
price related to any class or series of shares of the Company or with a
value derived in whole or in part from the price or value or volatility of
any class or series of shares of the Company, or (ii) any derivative,
swap or other transaction, right or instrument or series of transactions,
rights or instruments engaged in, directly or indirectly, by
any
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Proposing
Person the purpose or effect of which is to give such Proposing Person economic
risks or rights similar to ownership of shares of any class or series of the
Company, including, due to the fact that the value of such derivative, swap or
other transaction, right or instrument is determined by reference to the price
or value or volatility of any shares of any class or series of the Company, or
which derivative, swap or other transaction, right or instrument provides,
directly or indirectly, the opportunity to profit from any increase or decrease
in the price or value or volatility of any shares of any class or series of the
Company, in each case whether or not such derivative, swap, security,
instrument, right or other transaction or instrument, (A) conveys any
voting rights in such shares to any Proposing Person, or is required to be,
or is capable of being, settled through delivery of such shares, or (B) any
Proposing Person may have entered into other transactions or arrangements that
hedge or mitigate the economic effect of such derivative, swap, security,
instrument or other right or transaction related to any of the
foregoing.
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(3)
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"Exchange
Act" shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated
thereunder.
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(4)
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"Material
Ownership Interests" shall mean the disclosures to be made pursuant to
Section 13(a)(3)(i), clauses (B) and (C), and pursuant to Section
13(a)(3)(ii), clauses (A) through
(E).
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(5)
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"Proposing
Person" shall mean (i) the shareholder providing the notice of
business proposed to be brought before an annual meeting or the
shareholder providing notice of the nomination of a director,
(ii) such beneficial owner, if different, on whose behalf the
business proposed to be brought before the annual meeting, or on whose
behalf the notice of the nomination of the director, is made,
(iii) any affiliate or associate of such shareholder or beneficial
owner (the terms "affiliate" and "associate" are defined in Rule 12b-2
under the Exchange Act), and (iv) any other person with whom such
shareholder or beneficial owner (or any of their respective affiliates or
associates) is Acting in Concert.
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(6)
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"Publicly
Disclosed" shall mean disclosure in a press release reported by a national
news service or in a document publicly filed by the Company with the
Securities and Exchange Commission pursuant to Section 13, 14 or
15(d) of the Exchange Act.
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(7)
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"Short
Interests" shall mean any agreement, arrangement, understanding or
relationship, including any repurchase or similar so-called "stock
borrowing" agreement or arrangement, engaged in, directly or indirectly,
by any Proposing Person, the purpose or effect of which is to mitigate
loss to, reduce the economic risk of shares of any class or series of the
Company by, manage the risk of share price changes for, or increase or
decrease the voting power of, such
Proposing
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Person
with respect to the shares of any class or series of the Company, or which
provides, directly or indirectly, the opportunity to profit from any decrease in
the price or value of the shares of any class or series of the
Company.
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(8)
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"Timely
Notice" shall mean a shareholder's notice to the Secretary of the Company
not less than sixty (60) days nor more than ninety (90) days prior to the
date of the annual meeting of shareholders; provided, however, that
in the event that less than seventy (70) days' notice or prior Public
Disclosure of the date of the meeting is given to shareholders, notice by
the shareholder to be timely must be so received not later than the close
of business on the tenth (10th) day following the day on which such notice
of the date of the annual meeting was mailed or such public disclosure of
the date of the annual meeting was made, whichever first
occurs.
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(9)
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"Voting
Commitment" shall mean any agreement, arrangement or understanding with
any person or entity as to how such nominee, if elected as a director of
the Company, will act or vote on any issue or
question.
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ARTICLE
III
Board of
Directors
Section 1. The property,
business and affairs of the Company shall be managed and controlled by a Board
of Directors which may exercise all such powers of the Company and do all such
lawful acts and things as are not by statute or by the Articles of Incorporation
or by these By-laws directed or required to be exercised or done by the
shareholders.
Section 2. The Board of
Directors shall consist of not less than 9 nor more than 13 directors, the exact
number to be set from time-to-time by a resolution adopted by the affirmative
vote of the majority of the whole Board. Each director shall be
elected at the annual meeting of the shareholders to serve until the next annual
meeting of the shareholders and until his successor shall be elected and
qualified.
Section 3. In case of the
death or resignation of one or more of the directors of the Company, a majority
of the remaining directors, though less than a quorum, may fill the vacancy or
vacancies until the successor or successors are elected at a meeting of the
shareholders. A director may resign at any time and the acceptance of
his resignation shall not be required in order to make it
effective.
Section 4. The Board of
Directors may hold its meetings either within or without the State of Missouri
at such place as shall be specified in the notice of such meeting.
Section 5. Regular meetings
of the Board of Directors shall be held as the Board of Directors by resolution
shall from time to time determine. The Secretary or an Assistant
Secretary shall give at least five days' notice of the time and place of each
such meeting to each director in the
manner
provided in Section 9 of this Article III. The notice need not
specify the business to be transacted.
Section 6. Special meetings
of the Board of Directors shall be held whenever called by the Chairman of the
Board, the President or three members of the Board and shall be held at such
place as shall be specified in the notice of such meeting. Notice of
such special meeting stating the place, date and hour of the meeting shall be
given to each director either by mail not less than forty-eight (48) hours
before the date of the meeting, or personally or by telephone, telecopy,
telegram, telex or similar means of communication on twenty-four (24) hours'
notice, or on such shorter notice as the person or persons calling such meeting
may deem necessary or appropriate in the circumstances.
Section 7. A majority of the
full Board of Directors as prescribed in these By-laws shall constitute a quorum
for the transaction of business. The act of the majority of the
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors. If a quorum shall not be present at any
meeting of the directors, the directors present may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present. Members of the Board of Directors or of any
committee designated by the Board of Directors may participate in a meeting of
the Board or committee by means of conference telephone or similar
communications equipment whereby all persons participating in the meeting can
hear each other, and participation in a meeting in this manner shall constitute
presence in person at the meeting.
Section 8. The Board of
Directors, by the affirmative vote of a majority of the directors then in
office, and irrespective of any personal interest of any of its members, shall
have authority to establish reasonable compensation for
directors. Compensation for nonemployee directors may include both a
stated annual retainer and a fixed fee for attendance at each regular or special
meeting of the Board. Nonemployee members of special or standing
committees of the Board may be allowed a fixed fee for attending committee
meetings. Any director may serve the Company in any other capacity
and receive compensation therefor. Each director may be reimbursed
for his expenses, if any, in attending regular and special meetings of the Board
and committee meetings.
Section 9. Whenever under
the provisions of the statutes or of the Articles of Incorporation or of these
By-laws, notice is required to be given to any director, it shall not be
construed to require personal notice, but such notice may be given by telephone,
telecopy, telegram, telex or similar means of communication addressed to such
director at such address as appears on the books of the Company, or by mail by
depositing the same in a post office or letter box in a postpaid, sealed wrapper
addressed to such director at such address as appears on the books of the
Company. Such notice shall be deemed to be given at the time when the
same shall be thus telephoned, telecopied, telegraphed or mailed.
Attendance of a director at any meeting
shall constitute a waiver of notice of such meeting except where a director
attends a meeting for the express purpose of objecting to the transaction of any
business because the meeting is not lawfully called or convened.
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Section 10. The Board of Directors may
by resolution provide for an Executive Committee of said Board, which shall
serve at the pleasure of the Board of Directors and, during the intervals
between the meetings of said Board, shall possess and may exercise any or all of
the powers of the Board of Directors in the management of the business and
affairs of the Company, except with respect to any matters which, by resolution
of the Board of Directors, may from time to time be reserved for action by said
Board.
Section 11. The Executive Committee, if
established by the Board, shall consist of the Chief Executive Officer of the
Company and two or more additional directors, who shall be elected by the Board
of Directors to serve at the pleasure of said Board until the first meeting of
the Board of Directors following the next annual meeting of shareholders and
until their successors shall have been elected. Vacancies in the
Committee shall be filled by the Board of Directors.
Section 12. Meetings of the Executive
Committee shall be held whenever called by the chairman or by a majority of the
members of the committee, and shall be held at such time and place as shall be
specified in the notice of such meeting. The Secretary or an
Assistant Secretary shall give at least one day's notice of the time, place and
purpose of each such meeting to each committee member in the manner provided in
Section 9 of this Article III, provided, that if the meeting is to be held
outside of Kansas City, Missouri, at least three days' notice thereof shall be
given.
Section 13. At all meetings
of the Executive Committee, a majority of the committee members shall constitute
a quorum and the unanimous act of all the members of the committee present at a
meeting where a quorum is present shall be the act of the Executive
Committee. All action by the Executive Committee shall be reported to
the Board of Directors at its meeting next succeeding such action.
Section 14. In addition to
the Executive Committee provided for by these By-laws, the Board of Directors,
by resolution adopted by a majority of the whole Board of Directors, (i) shall
designate, as standing committees, an Audit Committee, a Compensation and
Development Committee and a Governance Committee, and (ii) may designate one or
more special committees, each consisting of two or more
directors. Each standing or special committee shall have and may
exercise so far as may be permitted by law and to the extent provided in such
resolution or resolutions or in these By-laws, the responsibilities of the
business and affairs of the Company. The Board of Directors may, at
its discretion, appoint qualified directors as alternate members of a standing
or special committee to serve in the temporary absence or disability of any
member of a committee. Except where the context requires otherwise,
references in these By-laws to the Board of Directors shall be deemed to include
the Executive Committee, a standing committee or a special committee of the
Board of Directors duly authorized and empowered to act in the
premises.
Section 15. Each standing or
special committee shall record and keep a record of all its acts and proceedings
and report the same from time to time to the Board of Directors.
Section 16. Regular meetings
of any standing or special committee, of which no notice shall be necessary,
shall be held at such times and in such places as shall be fixed by majority of
the committee. Special meetings of a committee shall be held at the
request of any member of the committee. Notice of each special
meeting of a committee shall be given not later than one day prior to the date
on which the special meeting is to be held. Notice of any special
meeting need not be given to any member of a committee, if waived by him in
writing or by telegraph before or after the meeting; and any meeting of a
committee shall be a legal meeting without notice thereof having been given, if
all the members of the committee shall be present.
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Section 17. A majority of
any committee shall constitute a quorum for the transaction of business, and the
act of a majority of those present, by telephone conference call or otherwise,
at any meeting at which a quorum is present shall be the act of the
committee. Members of any committee shall act only as a committee and
the individual members shall have no power as such.
Section 18. The members or
alternates of any standing or special committee shall serve at the pleasure of
the Board of Directors.
Section 19. If all the
directors severally or collectively shall consent in writing to any action which
is required to be or may be taken by the directors, such consents shall have the
same force and effect as a unanimous vote of the directors at a meeting duly
held. The Secretary shall file such consents with the minutes of the
meetings of the Board of Directors.
ARTICLE
IV
Officers
Section 1. The officers of
the Company shall include a Chairman of the Board, a President, one or more Vice
Presidents, a Secretary, one or more Assistant Secretaries, a Treasurer and one
or more Assistant Treasurers, all of whom shall be appointed by the Board of
Directors. Any one person may hold two or more offices except that
the offices of President and Secretary may not be held by the same
person.
Section 2. The officers of
the Company shall be appointed annually by the Board of
Directors. The office of Chairman of the Board may or may not be
filled, as may be deemed advisable by the Board of Directors.
Section 3. The Board of
Directors may from time to time appoint such other officers as it shall deem
necessary or expedient, who shall hold their offices for such terms and shall
exercise such powers and perform such duties as the Board of Directors or the
Chief Executive Officer may from time to time determine.
Section 4. The officers of
the Company shall hold office until their successors shall be chosen and shall
qualify. Any officer appointed by the Board of Directors may be
removed at any time by the affirmative vote of a majority of the whole
board. If the office of any officer becomes vacant for any reason, or
if any new office shall be created, the vacancy may be filled by the Board of
Directors.
Section 5. The salaries of
all officers of the Company shall be fixed by the Board of
Directors.
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ARTICLE
V
Powers and Duties of
Officers
Section 1. The Board of
Directors shall designate the Chief Executive Officer of the Company, who may be
either the Chairman of the Board or the President. The Chief
Executive Officer shall have general and active management of and exercise
general supervision of the business and affairs of the Company, subject,
however, to the right of the Board of Directors, or the Executive Committee
acting in its stead, to delegate any specific power to any other officer or
officers of the Company, and the Chief Executive Officer shall see that all
orders and resolutions of the Board of Directors and the Executive Committee are
carried into effect. During such times when neither the Board of
Directors nor the Executive Committee is in session, the Chief Executive Officer
of the Company shall have and exercise full corporate authority and power to
manage the business and affairs of the Company (except for matters required by
law, the By-laws or the Articles of Incorporation to be exercised by the
shareholders or Board itself or as may otherwise be specified by orders or
resolutions of the Board) and the Chief Executive Officer shall take such
actions, including executing contracts or other documents, as he deems necessary
or appropriate in the ordinary course of the business and affairs of the
Company. The Vice Presidents and other authorized persons are
authorized to take actions which are (i) routinely required in the conduct
of the Company's business or affairs, including execution of contracts and other
documents incidental thereto, which are within their respective areas of
assigned responsibility, and (ii) within the ordinary course of the
Company's business or affairs as may be delegated to them respectively by the
Chief Executive Officer.
Section 2. The Chairman of
the Board shall preside at all meetings of the shareholders and at all meetings
of the Board of Directors, and shall perform such other duties as the Board of
Directors shall from time to time prescribe, including, if so designated by the
Board of Directors, the duties of Chief Executive Officer.
Section 3. The President, if
not designated Chief Executive Officer, shall perform such duties and exercise
such powers as shall be assigned to him from time to time by the Board of
Directors or the Chief Executive Officer. In the absence of the
Chairman of the Board, or if the position of Chairman of the Board be vacant,
the President shall preside at all meetings of the shareholders and at all
meetings of the Board of Directors.
Section 4. The Vice
Presidents shall perform such duties and exercise such powers as shall be
assigned to them from time to time by the Board of Directors or the Chief
Executive Officer.
Section 5. The Secretary
shall attend all meetings of the shareholders, the Board of Directors and the
Executive Committee, and shall keep the minutes of such meetings. He
shall give, or cause to be given, notice of all meetings of the shareholders,
the Board of Directors and the Executive Committee, and shall perform such other
duties as may be prescribed by the Board of Directors or the Chief Executive
Officer. He shall be the custodian of the seal of the Company and
shall affix the same to any instrument requiring it and, when so affixed, shall
attest it by his signature. He shall, in general, perform all duties
incident to the office of secretary.
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Section 6. The Assistant
Secretaries shall perform such of the duties and exercise such of the powers of
the Secretary as shall be assigned to them from time to time by the Board of
Directors or the Chief Executive Officer or the Secretary, and shall perform
such other duties as the Board of Directors or the Chief Executive Officer shall
from time to time prescribe.
Section 7. The Treasurer
shall have the custody of all moneys and securities of the
Company. He is authorized to collect and receive all moneys due the
Company and to receipt therefor, and to endorse in the name of the Company and
on its behalf when necessary or proper all checks, drafts, vouchers or other
instruments for the payment of money to the Company and to deposit the same to
the credit of the Company in such depositaries as may be designated by the Board
of Directors. He is authorized to pay interest on obligations and
dividends on stocks of the Company when due and payable. He shall,
when necessary or proper, disburse the funds of the Company, taking proper
vouchers for such disbursements. He shall render to the Board of
Directors and the Chief Executive Officer, whenever they may require it, an
account of all his transactions as Treasurer and of the financial condition of
the Company. He shall perform such other duties as may be prescribed
by the Board of Directors or the Chief Executive Officer. He shall,
in general, perform all duties incident to the office of treasurer.
Section 8. The Assistant
Treasurers shall perform such of the duties and exercise such of the powers of
the Treasurer as shall be assigned to them from time to time by the Board of
Directors or the Chief Executive Officer or the Treasurer, and shall perform
such other duties as the Board of Directors or the Chief Executive Officer shall
from time to time prescribe.
Section 9. The Board of
Directors may, by resolution, require any officer to give the Company a bond
(which shall be renewed every six years) in such sum and with such surety or
sureties as shall be satisfactory to the Board for the faithful performance of
the duties of his office and for the restoration to the Company, in 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 and belonging to the Company.
Section 10. In the case of
absence or disability or refusal to act of any officer of the Company, other
than the Chairman of the Board, the Chief Executive Officer may delegate the
powers and duties of such officer to any other officer or other person unless
otherwise ordered by the Board of Directors.
Section 11. The Chairman of
the Board, the President, the Vice Presidents and any other person duly
authorized by resolution of the Board of Directors shall severally have power to
execute on behalf of the Company any deed, bond, indenture, certificate, note,
contract or other instrument authorized or approved by the Board of
Directors.
Section 12. Unless otherwise
ordered by the Board of Directors, the Chairman of the Board, the President or
any Vice President of the Company (a) shall have full power and
authority
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to
attend and to act and vote, in the name and on behalf of this Company, at any
meeting of shareholders of any corporation in which this Company may hold stock,
and at any such meeting shall possess and may exercise any and all of the rights
and powers incident to the ownership of such stock, and (b) shall have full
power and authority to execute, in the name and on behalf of this Company,
proxies authorizing any suitable person or persons to act and to vote at any
meeting of shareholders of any corporation in which this Company may hold stock,
and at any such meeting the person or persons so designated shall possess and
may exercise any and all of the rights and powers incident to the ownership of
such stock.
ARTICLE
VI
Certificates of
Stock
Section 1. The Board of
Directors shall provide for the issue, transfer and registration of the
certificates representing the shares of capital stock of the Company, and shall
appoint the necessary officers, transfer agents and registrars for that
purpose.
Section 2. Until otherwise
ordered by the Board of Directors, stock certificates shall be signed by the
President or a Vice President and by the Secretary or an Assistant Secretary or
the Treasurer or an Assistant Treasurer, and sealed with the seal of the
Company. Such seal may be facsimile, engraved or
printed. In case any officer or officers who shall have signed, or
whose facsimile signature or signatures shall have been used on, any stock
certificate or certificates shall cease to be such officer or officers of the
Company, whether because of death, resignation or otherwise, before such
certificate or certificates shall have been delivered by the Company, such
certificate or certificates may nevertheless be issued by the Company with the
same effect as if the person or persons who signed such certificate or
certificates or whose facsimile signature or signatures shall have been used
thereon had not ceased to be such officer or officers of the
Company.
Section 3. Transfers of
stock shall be made on the books of the Company only by the person in whose name
such stock is registered or by his attorney lawfully constituted in writing, and
unless otherwise authorized by the Board of Directors only on surrender and
cancellation of the certificate transferred. No stock certificate
shall be issued to a transferee until the transfer has been made on the books of
the Company.
Section 4. The Company shall
be entitled to treat the person in whose name any share of stock is registered
as the owner thereof, for all purposes, and shall not be bound to recognize any
equitable or other claim to or interest in such share on the part of any other
person, whether or not it shall have notice thereof, except as otherwise
expressly provided by the laws of Missouri.
Section 5. In case of the
loss or destruction of any certificate for shares of the Company, a new
certificate may be issued in lieu thereof under such regulations and conditions
as the Board of Directors may from time to time prescribe.
18
Section
6. (a) Notwithstanding anything to the contrary in this Article VI,
unless the Articles of Incorporation or another provision in these Bylaws
provide otherwise, the Board of Directors may authorize the issue of some or all
of the shares of any or all of its classes or series without
certificates. The authorization does not affect shares already
represented by certificates until such certificates are surrendered to the
Company.
(b) Every
holder of uncertificated shares is entitled to receive a statement of holdings
as evidence of share ownership.
(c) After
the issue or transfer of shares without certificates, the Company shall, if
required by law or agreement, provide to such holders of the applicable
uncertificated shares a statement that the Company will furnish each such
shareholder information pertaining to classes of shares or different series
within a class, the designations, relative rights, preferences and limitations
applicable to each class and the variations in rights, preferences and
limitations determined for each such series.
ARTICLE
VII
Closing of Transfer
Books
The Board of Directors shall have power
to close the stock transfer books of the Company for a period not exceeding
seventy days preceding the date of any meeting of 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, any such meeting, and any adjournment thereof, or entitled to receive
payment of any such dividend, or to any such allotment of rights, or to exercise
the rights in respect of any such change, conversion or exchange of shares, and
in such case such shareholders and only such shareholders as shall be
shareholders of record on the date of closing the transfer books or on the
record date so fixed shall be entitled to notice of, and to vote at, such
meeting and any adjournment thereof, or to receive payment of such dividend, or
to receive such allotment of rights, or to exercise such rights, as the case may
be, notwithstanding any transfer of any shares on the books of the Company after
such date of closing of the transfer books or such record date fixed as
aforesaid.
ARTICLE
VIII
Inspection of
Books
Section 1. A shareholder
shall have the right to inspect books of the Company only to the extent such
right may be conferred by law, by the Articles of Incorporation, by the By-laws
or by resolution of the Board of Directors.
19
Section 2. Any shareholder
desiring to examine books of the Company shall present a demand to that effect
in writing to the Chief Executive Officer or the Secretary or the Treasurer of
the Company. Such demand shall state:
(a) the
particular books which he desires to examine;
(b) the
purpose for which he desires to make the examination;
(c) the
date on which the examination is desired;
(d) the
probable duration of time the examination will require; and
(e) the
names of the persons who will be present at the examination.
Within
three days after receipt of such demand, the Chief Executive Officer or the
Secretary or the Treasurer shall, if the shareholder's purpose be lawful, notify
the shareholder making the demand of the time and place the examination may be
made.
Section 3. The right to
inspect books of the Company may be exercised only at such times as the
Company's registered office is normally open for business and may be limited to
four hours on any one day.
Section 4. The Company shall
not be liable for expenses incurred in connection with any inspection of its
books.
ARTICLE
IX
Corporate
Seal
The corporate seal of the Company shall
have inscribed thereon the name of the Company and the words "Corporate Seal",
"Missouri" and "2001".
ARTICLE
X
Fiscal
Year
Section 1. The fiscal year
of the Company shall be the calendar year.
Section 2. As soon as
practicable after the close of each fiscal year, the Board of Directors shall
cause a report of the business and affairs of the Company to be made to the
shareholders.
20
ARTICLE
XI
Waiver of
Notice
Whenever by statute or by the Articles
of Incorporation or by these By-laws any notice whatever is required to be
given, a waiver thereof in writing signed by the person or persons entitled to
such notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice.
ARTICLE
XII
Amendments
The Board of Directors may make, alter,
amend or repeal By-laws of the Company by a majority vote of the whole Board of
Directors at any regular meeting of the Board or at any special meeting of the
Board if notice thereof has been given in the notice of such special
meeting. Nothing in this Article shall be construed to limit the
power of the shareholders to make, alter, amend or repeal By-laws of the Company
at any annual or special meeting of shareholders by a majority vote of the
shareholders present and entitled to vote at such meeting, provided a quorum is
present.
21
ex3_2.htm
Exhibit
3.2
GREAT
PLAINS ENERGY INCORPORATED
BY-LAWS
AS
AMENDED APRIL
1,DECEMBER 2, 2008
GREAT
PLAINS ENERGY INCORPORATED
BY-LAWS
ARTICLE
I
Offices
Section
1. The location of the
registered office and the name of the
registered agent of the Company in the State of Missouri shall be at 1201 Walnut, in Kansas
City, Jackson County, Missourias stated in
the Articles of Incorporation or as determined from time to time by the Board of
Directors and on file in the appropriate public offices of the State of Missouri
pursuant to applicable provisions of law.
Section
2. The Company also may have offices at such other places either
within or without the State of Missouri as the Board of Directors may from time
to time determine or the business of the Company may require.
ARTICLE
II
Shareholders
Section
1. All meetings of the shareholders shall be held at such place
within or without the State of Missouri as may be selected by the Board of
Directors or Executive Committee, but if the Board of Directors or Executive
Committee shall fail to designate a place for said meeting to be held, then the
same shall be held at the principal place of business of the
Company.
Section
2. An annual meeting of the shareholders shall be held on the first
Tuesday of May in each year, if not a legal holiday, and if a legal holiday,
then on the first succeeding day which is not a legal holiday, at ten o'clock in
the forenoon, for the purpose of electing directors of the Company and
transacting such other business as may properly be brought before the
meeting.
Section
3. Unless otherwise expressly provided in the Restated Articles
of ConsolidationIncorporation of the Company with respect to the
Cumulative Preferred Stock, Cumulative No Par Preferred Stock or Preference
Stock, special meetings of the shareholders may only be called by the Chairman
of the Board, by the President or at the request in writing of a majority of the
Board of Directors. Special meetings of shareholders of the Company
may not be called by any other person or persons.
Section
4. Written or printed notice of each meeting of the shareholders,
annual or special, shall be given in the manner provided in the corporation laws
of the State of Missouri. In case of a call for any special meeting,
the notice shall state the time, place and purpose of such
meeting.
Any
notice of a shareholders' meeting sent by mail shall be deemed to be delivered
when deposited in the United States mail with postage thereon prepaid addressed
to the shareholder at his address as it appears on the records of the
Company.
In
addition to the written or printed notice provided for in the first paragraph of
this Section, published notice of each meeting of shareholders shall be given in
such manner and for such period of time as may be required by the laws of the
State of Missouri at the time such notice is required to be given.
Section
5. Attendance of a shareholder at any meeting shall constitute a
waiver of notice of such meeting except where a shareholder attends a meeting
for the express purpose of objecting to the transaction of any business because
the meeting is not lawfully called or convened.
Section
6. At least ten days before each meeting of the shareholders, a
complete list of the shareholders entitled to vote at such meeting, arranged in
alphabetical order with the address of and the number of shares held by each,
shall be prepared by the officer having charge of the transfer book for shares
of the Company. Such list, for a period of ten days prior to such
meeting, shall be kept on file at the registered office of the Company and shall
be subject to inspection by any shareholder at any time during usual business
hours. Such list shall also be produced and kept open at the time and
place of the meeting and shall be subject to the inspection of any shareholder
during the whole time of the meeting. The original share ledger or
transfer book, or a duplicate thereof kept in the State of Missouri, shall be
prima facie evidence as to who are the shareholders entitled to examine such
list or share ledger or transfer book or to vote at any meeting of
shareholders.
Failure
to comply with the requirements of this Section shall not affect the validity of
any action taken at any such meeting.
Section
7. Each outstanding share entitled to vote under the provisions of
the aArticles of consolidationIncorporation of the Company shall be entitled to
one vote on each matter submitted at a meeting of the shareholders. A
shareholder may vote either in person or by proxy executed in writing by the
shareholder or by his duly authorized attorney-in-fact. No proxy
shall be valid after eleven months from the date of its execution, unless
otherwise provided in the proxy.
At
any election of directors of the Company, each holder of outstanding shares of
any class entitled to vote thereat shall have the right to cast as many votes in
the aggregate as shall equal the number of shares of such class held, multiplied
by the number of directors to be elected by holders of shares of such class, and
may cast the whole number of votes, either in person or by proxy, for one
candidate, or distribute them among two or more candidates as such holder shall
elect.
Section
8. At any meeting of shareholders, a majority of the outstanding
shares entitled to vote represented in person or by proxy shall constitute a
quorum for the transaction of
business,
except as otherwise provided by statute or by the aArticles of consolidationIncorporation or by these By-laws. The
holders of a majority of the shares represented in person or by proxy and
entitled to vote at any meeting of the shareholders shall have the right
successively to adjourn the meeting to a specified date not longer than ninety
days after any such adjournment, whether or not a quorum be
present. The time and place to which any such adjournment is taken
shall be publicly announced at the meeting, and no notice need be given of any
such adjournment to shareholders not present at the meeting. At any
such adjourned meeting at which a quorum shall be present, any business may be
transacted which might have been transacted at the meeting as originally
called.
Section
9. The vote for directors and the vote on any other question that has
been properly brought before the meeting in accordance with these By-laws shall
be by ballot. Each ballot cast by a shareholder must state the name
of the shareholder voting and the number of shares voted by him and if such
ballot be cast by a proxy, it must also state the name of such
proxy. All elections and all other questions shall be decided by
plurality vote, unless the question is one on which by express provision of the
statutes or of the aArticles of consolidationIncorporation or of these By-laws a different
vote is required, in which case such express provision shall govern and control
the decision of such question.
Section
10. The Chairman of the Board, or in his absence the President of the
Company, shall convene all meetings of the shareholders and shall act as
chairman thereof. The Board of Directors may appoint any shareholder
to act as chairman of any meeting of the shareholders in the absence of the
Chairman of the Board and the President, and in the case of the failure of the
Board so to appoint a chairman, the shareholders present at the meeting shall
elect a chairman who shall be either a shareholder or a proxy of a
shareholder.
The
Secretary of the Company shall act as secretary of all meetings of
shareholders. In the absence of the Secretary at any meeting of
shareholders, the presiding officer may appoint any person to act as secretary
of the meeting.
Section
11. At any meeting of shareholders where a vote by ballot is taken
for the election of directors or on any proposition, the person presiding at
such meeting shall appoint not less than two persons, who are not directors, as
inspectors to receive and canvass the votes given at such meeting and certify
the result to him. Subject to any statutory requirements which may be
applicable, all questions touching upon the qualification of voters, the
validity of proxies, and the acceptance or rejection of votes shall be decided
by the inspectors. In case of a tie vote by the inspectors on any
question, the presiding officer shall decide the issue.
Section
12. Unless otherwise provided by statute or by the aArticles of consolidationIncorporation, any action required to be taken by
shareholders may be taken without a meeting if a consent 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
13. No
business may be transacted at an annual meeting of shareholders, other than
business that is either (aNotice of
Shareholder Business and Nominations.
(a) Business Brought Before a Meeting.
(1) At an annual meeting of shareholders, only
such business shall be conducted
that is properly brought before the
meeting. To be properly brought before an annual meeting, business
must be (i) specified in the Company's
notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors (or any duly authorized committee thereof),
(b) otherwise
properly brought before the annualii)
brought before the meeting by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (iii) otherwise properly brought before the meeting by a
shareholder who: (A) was a shareholder of record at the time of giving the
notice provided for in this Section 13(a) and on the record date for the determination of
shareholders entitled to vote at the annual
meeting, (B) is entitled to vote at the meeting, and (C) complied with all of
the notice procedures set forth in this
Section 13(a) as to such business (except
for proposals made in accordance with Rule 14a-8 under the Exchange Act (as
defined in Section 13(d), which are addressed in Section 13
(a)(5)). The foregoing clause (iii) shall be the exclusive means for
a shareholder to propose business to be brought before an annual meeting of the
shareholders. Shareholders seeking to nominate persons for election
to the Board of Directors must comply with the notice procedures set forth in
Section 13 (b) of these By-laws, and this Section 13 (a) shall not be applicable
to nominations except as expressly provided therein.
(2) Without qualification, for business to be properly
brought before an annual meeting by a shareholder pursuant to clause (iii) of
paragraph (a) (1) of this Section 13, the shareholder must have given Timely
Notice (as defined in Section 13 (d)) thereof in writing to the
Secretary of the Company and any such proposed business must constitute a proper
matter for shareholder action. In no event shall the public announcement of an
adjournment or postponement of an annual meeting commence a new time period (or
extend any time period) for the giving of a shareholder's notice as described
above.
(3) Such shareholder's notice shall set
forth:
(i) (A) the name and address of the shareholder providing
the notice, as they appear on the Company's books, and of the other Proposing
Persons (as defined in Section 13 (d)), (B)
the class or series and number of shares of the Company that are, directly or indirectly, owned of
record, and the class and number of shares beneficially owned (as defined in
Rule 13d-3 under the Exchange Act) by each Proposing Person, except that any
such Proposing Person shall be deemed to beneficially own any shares of any
class or series of the Company as to which such Proposing Person has a right to
acquire beneficial ownership at any time in the future, and (C) a representation
that each Proposing Person will notify the Company in writing of the class and
number of shares owned of record, and of the class and number of shares owned
beneficially, in each case, as of the record date for the
meeting;
(ii) as to each Proposing Person: (A) any Derivative
Instruments (as defined in Section 13(d)) that are, directly or indirectly,
owned or held by such
Proposing Person; (B) any proxy (other than a revocable
proxy given in response to a public proxy solicitation made pursuant to, and in
accordance with, the Exchange Act), agreement, arrangement, understanding or
relationship pursuant to which such Proposing Person, directly or indirectly,
has or shares a right to vote any shares of any class or series of the Company;
(C) any Short Interests (as defined in Section 13(d)), that are held directly or
indirectly by such Proposing Person; (D) any rights to dividends on the shares
of any class or series of the Company owned beneficially by such Proposing
Person that are separated or separable from the underlying shares of the
Company; (E) any performance-related fees (other than an asset based fee) that
such Proposing Person is entitled to receive based on any increase or decrease
in the price or value of shares of any class or series of the Company,
Derivative Instruments or Short Interests, if any, including, without
limitation, any such interests held by persons sharing the same household as
such Proposing Person; and (F) any plans or proposals that the Proposing Person
may have that relate to or may result in the acquisition or disposition of
securities of the Company, an extraordinary corporate transaction (such as the
sale of a material amount of assets of the Company or any of its subsidiaries, a
merger, reorganization or liquidation) involving the Company or any of its
subsidiaries, any change in the Board of Directors or management of the Company
(including any plans or proposals to change the number or term of directors or
to fill any existing vacancies on the Board of Directors), any material change
in the present capitalization or dividend policy of the Company, any change in
the Company’s Articles of Incorporation or By-laws, causing a class of
securities of the Company to be delisted from a national securities exchange or
any other material change in the Company’s business or corporate structure or
any action similar to those listed above;
(iii) as to each matter proposed to be brought by any
Proposing Person before the annual meeting: (A) a brief description of the business desired to be
brought before the annual meeting, the reasons for
conducting such business at the meeting,
and any material interest of such Proposing Person in such business and (B) a
reasonably detailed description of all agreements, arrangements, understandings
or relationships between or among any of the Proposing Persons and/or any other
persons or entities (including their names)
in connection with the proposal of such business by such Proposing Person; and
(iv) any other information relating to any Proposing Person
that would be required to be disclosed in a proxy statement or other filing
required to be made in connection with solicitations of proxies for the proposal
pursuant to Section 14 of the Exchange Act.
(4) A shareholder providing notice of business proposed to
be brought before an annual meeting shall further update and supplement such
notice, if necessary, so that the information provided or required to be
provided in such notice pursuant to this Section 13(a) shall be true and correct
as of the record date for the meeting and as of the date of the meeting or any
adjournment or postponement thereof, as the case may be, and
such update and supplement shall be delivered to or
mailed and received by the Secretary at the principal executive offices of the
Company not later than five (5) business days after the later of the record date
for the meeting or the date notice of such record date is first Publicly
Disclosed (in the case of the update and supplement required to be made as of
the record date), and as promptly as practicable (in the case of any update or
supplement required to be made after the record date).
(5) This Section 13(a) is expressly intended to apply to any
business proposed to be brought before an annual meeting, regardless of whether
or not such proposal is made by means of an independently financed proxy
solicitation. In addition to the foregoing provisions of this Section
13(a), each Proposing Person shall also comply with all applicable requirements
of the Exchange Act with respect to the matters set forth in this Section
13(a). This Section 13 shall not be deemed to affect (i) the rights
of shareholders to request inclusion of proposals in the Company's proxy
statement pursuant to Rule 14a-8 under the Exchange Act and, if required by such
rule to be included in the Company's proxy statement, to include a description
of such proposal in the notice of meeting and to be submitted for a shareholder
vote at the applicable meeting, or (ii) the rights of the holders of any series
of Preferred Stock if and to the extent provided under law, the Articles of
Incorporation or these By-laws.
(6) Notwithstanding satisfaction of the provisions of this
Section 13(a), the proposed business described in the notice may be deemed not
to be properly brought before the meeting if, pursuant to the Articles of
Incorporation, the By-laws, state law or any rule or regulation of the
Securities and Exchange Commission, it was offered as a shareholder proposal and
was omitted, or had it been so offered, it could have been omitted, from the
notice of, and proxy material for, the meeting (or any supplement thereto)
authorized by the Board of Directors.
(7) In the event Timely Notice is given pursuant to Section
13(a)(2) and the business described therein is not disqualified pursuant to this
Section 13(a), such business may be presented by, and only by, the shareholder
who shall have given the notice required by this Section 13(a), or a
representative of such shareholder who is qualified under the law of the State
of Missouri to present the proposal on the shareholder's behalf at the
meeting.
(8) Notwithstanding anything in these By-laws to the
contrary: (i) no business shall be conducted at any annual meeting except in
accordance with the procedures set forth in this Section 13(a) or, subject to
Section 13(a)(1) or Section 13(a)(5), as permitted under Rule 14a-8 under the
Exchange Act (other than the nomination of a person for election as a director,
which is governed by Section 13(b)), and (ii) unless otherwise required by law,
if a Proposing Person intending to propose business at an annual meeting
pursuant to Section 13(a)(1)(iii) does not provide the information required
under Section 13(a)(2)-(4) within the periods specified therein, or the
shareholder who shall have given the notice required by Section 13(a) (or a
qualified representative of the shareholder) does not appear at the meeting to
present the proposed business, such business shall not be transacted,
notwithstanding that proxies in respect of such business may have
been
received by the Company. The chairman of the
annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting in
accordance with the provisions of this Section 13(a) and any such business not
properly brought before the meeting shall not be transacted. The
requirements of this Section 13(a) are included to provide the Company notice of
a shareholder's intention to bring business before an annual meeting and shall
in no event be construed as imposing upon any shareholder the requirement to
seek approval from the Company as a condition precedent to bringing any such
business before an annual meeting.
|
|
(b)
|
Nominations of
Directors
|
(1) Nominations of persons for election to the Board of
Directors at an annual meeting or special meeting (but only if the Board of
Directors has first determined that directors are to be elected at such special
meeting) may be made at such meeting (i) by or at the direction of the Board of
Directors (or a duly authorized committee thereof), or (ii) by any shareholder
who: (A) was a shareholder of record at the time of giving the notice
provided for in this Section 13(b) and on the record for determination of
shareholders entitled to vote at the meeting; (B) is entitled to vote at the
meeting; and (C) complied with the notice procedures set forth in this Section
13(b) as to such nomination. Section 13(b)(1)(ii) of these By-laws
shall be the exclusive means for a shareholder to propose any nomination of a
person or persons for election to the Board of Directors to be considered by the
shareholders at an annual meeting or special meeting.
(2) Without qualification, for nominations to be made at an
annual meeting by a shareholder, the shareholder must (i) provide Timely Notice
(as defined in Section 13(d) in writing and in proper form to the Secretary of
the Company and (ii) provide any updates or supplements to such notice at the
times and in the forms required by this Section 13(b). Without
qualification, if the Board of Directors has first determined that directors are
to be elected at a special meeting, then for nominations to be made at a special
meeting by a shareholder, the shareholder must (i) provide notice thereof in
writing and in proper form to the Secretary of the Company at the principal
executive offices of the Company not earlier than the one hundred twentieth
(120th) day prior to such special meeting and not later than the ninetieth
(90th) day prior to such special meeting or, if later, the tenth (10th) day
following the day on which the date of such special meeting was first Publicly
Disclosed and (ii) provide any updates or supplements to such notice at the
times and in the forms required by this Section 13(b). In no event
shall any adjournment or postponement of an annual meeting or special meeting,
or the announcement thereof, commence a new time period for the giving of a
shareholder notice as described above.
(3) To be in proper form for purposes of this Section 13(b),
a shareholder's notice to the Secretary pursuant to this Section 13(b) must set
forth:
(i) (A) the name and address of Proposing Person providing
the notice, as they appear on the Company's books, and of the other
Proposing
Persons, (B) any Material Ownership Interests (as
defined in Section 13(d)) of each Proposing Person, as well as the information
set forth in Section 13(a)(3)(ii), clause (F) regarding each Proposing Person
and (C) any other information relating to such Proposing Person that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitation of proxies for the election of directors in
a contested election pursuant to Section 14 of the Exchange Act;
and
(ii) as to each person whom the shareholder proposes to
nominate for election as a director, (A) all information with respect to such
proposed nominee that would be required to be set forth in a shareholder's
notice pursuant to this Section 13(b) if such proposed nominee were a Proposing
Person; (B) all information relating to such proposed nominee that is required
to be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors in a
contested election pursuant to Section 14 of the Exchange Act (including such
proposed nominee's written consent to being named in the proxy statement as a
nominee, if applicable, and to serving as a director if elected), (C) a
description of all direct and indirect compensation and other material monetary
agreements, arrangements and understandings during the past three years, and any
other material relationships, between or among any Proposing Person, on the one
hand, and each proposed nominee, and his or her respective affiliates and
associates, and any other persons Acting in Concert with such nominee,
affiliates, associates and other person, on the other hand, including, without
limitation, all information that would be required to be disclosed pursuant to
Item 404 under Regulation S-K if the Proposing Person were the "registrant" for
purposes of such rule and the proposed nominee were a director or executive
officer of such registrant, and a representation that each Proposing Person will
notify the Company in writing of any such relationships, arrangements,
agreements or understandings as of the record date for the meeting, promptly
following the later of such record date or the date the notice of such record
date is first Publicly Disclosed; and (D) a completed and signed questionnaire,
representation and agreement as provided in Section
13(b)(7).
(4) The Company may require any proposed nominee to furnish
such other information as may reasonably be required by the Company to determine
the eligibility of such proposed nominee to serve as an independent director of
the Company or that could be material to a reasonable shareholder's
understanding of the independence or lack of independence of such
nominee.
(5) A shareholder providing notice of any nomination
proposed to be made at a meeting shall further update and supplement such
notice, if necessary, so that the information provided or required to be
provided in such notice pursuant to this Section 13(b) shall be true and correct
as of the record date for the meeting and as of the date of the meeting or any
adjournment or postponement thereof, as the case may be, and such update and
supplement shall be delivered to or mailed and received by the Secretary at
the
principal executive offices of the Company not later
than five (5) business days after the later of the record date for the meeting
or the date notice of such record date is first Publicly Disclosed (in the case
of the update and supplement required to be made as of the record date), and as
promptly as practicable in the case of any update or supplement required to be
made after the record date.
(6) Notwithstanding anything in the Timely Notice
requirement in the first sentence of Section 13(b)(2) to the contrary, in the
event that the number of directors to be elected to the Board of Directors is
increased and there is no public announcement by the Company naming all of the
nominees for director or specifying the size of the increased Board of Directors
at least one hundred (100) days prior to the first anniversary of the preceding
year's annual meeting of shareholders, a shareholder's notice required by this
Section 13(b) shall also be considered timely, but only with respect to nominees
for any new positions created by such increase, if it shall be delivered to or
mailed and received by the Secretary at the principal executive offices of the
Company not later than the close of business on the tenth (10th) day following
the day on which such nominees or increased size was first Publicly Disclosed by
the Company.
(7) To be eligible to be a stockholder proposed nominee for
election as a director of the Company, a person must deliver (in accordance with
the time periods prescribed by delivery of notice under this Section 13(b) to
the Secretary at the principal executive offices of the Company a written
questionnaire with respect to the background and qualification of such person
and the background of any other person or entity on whose behalf the nomination
is being made (which questionnaire shall be provided by the Secretary upon
written request) and a written representation and agreement (in form provided by
the Secretary upon written request) that such person (i) is not and will not
become a party to (A) any Voting Commitment (as defined in Section 13(d) that
has not been disclosed to the Company or (B) any Voting Commitment that could
limit or interfere with such person's ability to comply, if elected as a
director of the Company, with such person's fiduciary duties under applicable
law, (ii) is not, and will not become a party to, any agreement, arrangement or
understanding with any person or entity other than the Company with respect to
any direct or indirect compensation, reimbursement or indemnification in
connection with service or action as a director that has not been disclosed
therein, and (iii) in such person's individual capacity, if elected as a
director of the Company, will comply with applicable Publicly Disclosed
corporate governance, conflict of interest, confidentiality and stock ownership
and trading policies and guidelines of the Company.
(8) In addition to the foregoing provisions of this Section
13(b), each Proposing Person shall also comply with all applicable requirements
of the Exchange Act with respect to the matters set forth in this Section
13.
(9) Only such persons who are nominated in accordance with
the procedures set forth in this Section 13(b) shall be eligible to serve as
directors. Except as otherwise provided by law, the Articles of
Incorporation or these By-laws, the chairman of the meeting shall have the power
and duty to determine whether a nomination was made in
accordance with the procedures set forth in this Section
13(b) and, if any proposed nomination is not in compliance with this Section
13(b), to declare that such defective
nomination shall be disregarded,
notwithstanding that proxies in respect of such nomination may have been
received by the Company.
(c) otherwise
properly Special Meetings of
Shareholders. Only such business shall be conducted at a special meeting of
shareholders as shall have been brought before the annual
meeting pursuant to the Company's notice of
meeting. Nominations of persons for election to the Board of Directors may be
made at a special meeting of shareholders at which directors are to be elected
pursuant to the Company's notice of meeting (1) by or at the direction of the
Board of Directors or (2) provided that the Board of Directors has determined
that directors shall be elected at such meeting, by any shareholder of
the Company (i)
who is a shareholder of record onat the date of the giving
oftime the notice provided for in
this Section 13 and
on the record date for the determination of shareholdersis delivered to the Secretary of the Company, who
is entitled to vote at such annualthe meeting and (ii)upon such election and who complies with the
notice procedure set forth in this Section 13.
(d) Definitions. For purposes of Section 13, of
these By-laws, the following terms have the meanings specified or referred to
below:
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(1)
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"Acting in Concert" means a person will be deemed "Acting in
Concert" with another person for purposes of these By-laws if such person
knowingly acts (whether or not pursuant to an express agreement,
arrangement or understanding) in concert with, or towards a common goal
relating to the management, governance or control of the Company in
parallel with, such other person where (A) each person is conscious of the
other person's conduct or intent and this awareness is an element in their
decision-making processes and (B) at least one additional factor suggests
that such persons intend to act in concert or in parallel, which such
additional factors may include, without limitation,
exchanging
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information (whether publicly or privately), attending
meetings, conducting discussions, or making or soliciting invitations to act in
concert or in parallel; provided, that a person shall not be deemed to be Acting
in Concert with any other person solely as a result of the solicitation or
receipt of revocable proxies from such other person in connection with a public
proxy solicitation pursuant to, and in accordance with, the Exchange
Act. A person that is Acting in Concert with another person shall
also be deemed to be Acting in Concert with any third party who is also Acting
in Concert with the other person.
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(2)
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"Derivative Instruments" shall mean (i) any
option, warrant, convertible security, stock appreciation right, or
similar right with an exercise, conversion or exchange privilege or
settlement payment or mechanism at a price related to any class or series
of shares of the Company or with a value derived in whole or in part from
the price or value or volatility of any class or series of shares of the
Company, or (ii) any derivative, swap or other transaction, right or
instrument or series of transactions, rights or instruments engaged in,
directly or indirectly, by any Proposing Person the purpose or effect of
which is to give such Proposing Person economic risks or rights similar to
ownership of shares of any class or series of the Company, including, due
to the fact that the value of such derivative, swap or other transaction,
right or instrument is determined by reference to the price or value or
volatility of any shares of any class or series of the Company, or which
derivative, swap or other transaction, right or instrument provides,
directly or indirectly, the opportunity to profit from any increase or
decrease in the price or value or volatility of any shares of any class or
series of the Company, in each case whether or not such derivative, swap,
security, instrument, right or other transaction or instrument, (A)
conveys any voting rights in such shares to any Proposing Person, or is
required to be, or is capable of being, settled through delivery of such
shares, or (B) any Proposing Person may have entered into other
transactions or arrangements that hedge or mitigate the economic effect of
such derivative, swap, security, instrument or other right or transaction
related to any of the
foregoing.
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(3)
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and
regulations promulgated
thereunder.
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(4)
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"Material Ownership Interests" shall mean the
disclosures to be made pursuant to Section 13(a)(3)(i), clauses (B) and
(C), and pursuant to Section 13(a)(3)(ii), clauses (A) through
(E).
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(5)
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"Proposing Person" shall mean (i) the shareholder
providing the notice of business proposed to be brought before an annual
meeting or the shareholder providing notice of the nomination of a
director, (ii) such beneficial owner, if different, on whose behalf the
business proposed to be brought before the annual meeting, or on whose
behalf the notice of the nomination of the director, is made, (iii) any
affiliate or associate of such shareholder or beneficial owner (the terms
"affiliate" and "associate" are defined in Rule 12b-2 under the Exchange
Act), and (iv) any
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other person with whom such shareholder or beneficial
owner (or any of their respective affiliates or associates) is Acting in
Concert.
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(6)
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"Publicly Disclosed" shall mean disclosure in a
press release reported by a national news service or in a document
publicly filed by the Company with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange
Act.
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(7)
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"Short Interests" shall mean any agreement,
arrangement, understanding or relationship, including any repurchase or
similar so-called "stock borrowing" agreement or arrangement, engaged in,
directly or indirectly, by any Proposing Person, the purpose or effect of
which is to mitigate loss to, reduce the economic risk of shares of any
class or series of the Company by, manage the risk of share price changes
for, or increase or decrease the voting power of, such Proposing Person
with respect to the shares of any class or series of the Company, or which
provides, directly or indirectly, the opportunity to profit from any
decrease in the price or value of the shares of any class or series of the
Company.
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(8)
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"Timely Notice" shall mean a shareholder's notice
to the Secretary of the Company not less than sixty (60) days nor
more than ninety (90) days prior to the date of the annual meeting of
shareholders; provided, however, that
in the event that less than seventy (70) days' notice or prior pPublic dDisclosure of the date of the meeting is
given to shareholders, notice by the shareholder to be timely must be so
received not later than the close of business on the tenth (10th) day
following the day on which such notice of the date of the annual meeting
was mailed or such public disclosure of the date of the annual meeting was
made, whichever first occurs.
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To be in proper written
form, a shareholder's notice to the Secretary must set forth as to each matter
such shareholder proposes to bring before the annual meeting (i) a brief description of
the business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (ii) the
name and record address of such shareholder, (iii) the class or series and
number of shares of capital stock of the
Company that are owned beneficially or of record by such shareholder, (iv) a
description of all arrangements or understandings between such shareholder and
any other person or persons (including their names)
in connection with the proposal of such business by such shareholder and any
material interest of such shareholder in such business and (v) a representation
that such shareholder intends to appear in person or by proxy at the annual
meeting to bring such business before the meeting.
No business shall be
conducted at
the annual meeting of shareholders except business brought before the annual
meeting in accordance with the procedures set forth in
this Section 13, provided, however, that, once business has
been properly brought before the annual meeting in accordance with such
procedures, nothing in this Section 13 shall be deemed to preclude discussion by
any shareholder of any such business. If the Chairman of an annual
meeting
determines that business
was not properly brought before the annual meeting in accordance with the
foregoing procedures, the Chairman shall declare to the meeting
that the
business was not properly brought before the meeting and such business shall not
be transacted.
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(9)
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"Voting Commitment" shall mean any agreement,
arrangement or understanding with any person or entity as to how such
nominee, if elected as a director of the Company, will act or vote on any
issue or question.
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ARTICLE
III
Board of
Directors
Section
1. The property, business and affairs of the Company shall be managed
and controlled by a Board of Directors which may exercise all such powers of the
Company and do all such lawful acts and things as are not by statute or by the
aArticles of consolidationIncorporation or by these By-laws directed or
required to be exercised or done by the shareholders.
Section
2. The Board of Directors shall consist of not less than 9 nor more
than 13 directors, the exact number to be set from time-to-time by a resolution
adopted by the affirmative vote of the majority of the whole
Board. Each director shall be elected at the annual meeting of the
shareholders to serve until the next annual meeting of the shareholders and
until his successor shall be elected and qualified.
Section
3. In case of the death or resignation of one or more of the
directors of the Company, a majority of the remaining directors, though less
than a quorum, may fill the vacancy or vacancies until the successor or
successors are elected at a meeting of the shareholders. A director
may resign at any time and the acceptance of his resignation shall not be
required in order to make it effective.
Section
4. The Board of Directors may hold its meetings either within or
without the State of Missouri at such place as shall be specified in the notice
of such meeting.
Section
5. Regular meetings of the Board of Directors shall be held as the
Board of Directors by resolution shall from time to time
determine. The Secretary or an Assistant Secretary shall give at
least five days' notice of the time and place of each such meeting to each
director in the manner provided in Section 9 of this Article III. The
notice need not specify the business to be transacted.
Section
6. Special meetings of the Board of Directors shall be held whenever
called by the Chairman of the Board, the President or three members of the Board
and shall be held at such place as shall be specified in the notice of such
meeting. Notice of such special meeting stating the place, date and
hour of the meeting shall be given to each director either by mail not less than
forty-eight (48) hours before the date of the meeting, or personally or by
telephone, telecopy, telegram, telex or similar means of communication on
twenty-four (24) hours' notice, or on such
shorter
notice as the person or persons calling such meeting may deem necessary or
appropriate in the circumstances.
Section
7. A majority of the full Board of Directors as prescribed in these
By-laws shall constitute a quorum for the transaction of
business. The act of the majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board of
Directors. If a quorum shall not be present at any meeting of the
directors, the directors present may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present. Members of the Board of Directors or of any committee
designated by the Board of Directors may participate in a meeting of the Board
or committee by means of conference telephone or similar communications
equipment whereby all persons participating in the meeting can hear each other,
and participation in a meeting in this manner shall constitute presence in
person at the meeting.
Section
8. The Board of Directors, by the affirmative vote of a majority of
the directors then in office, and irrespective of any personal interest of any
of its members, shall have authority to establish reasonable compensation for
directors. Compensation for nonemployee directors may include both a
stated annual retainer and a fixed fee for attendance at each regular or special
meeting of the Board. Nonemployee members of special or standing
committees of the Board may be allowed a fixed fee for attending committee
meetings. Any director may serve the Company in any other capacity
and receive compensation therefor. Each director may be reimbursed
for his expenses, if any, in attending regular and special meetings of the Board
and committee meetings.
Section
9. Whenever under the provisions of the statutes or of the aArticles of consolidationIncorporation or of these By-laws, notice is
required to be given to any director, it shall not be construed to require
personal notice, but such notice may be given by telephone, telecopy, telegram,
telex or similar means of communication addressed to such director at such
address as appears on the books of the Company, or by mail by depositing the
same in a post office or letter box in a postpaid, sealed wrapper addressed to
such director at such address as appears on the books of the
Company. Such notice shall be deemed to be given at the time when the
same shall be thus telephoned, telecopied, telegraphed or mailed.
Attendance
of a director at any meeting shall constitute a waiver of notice of such meeting
except where a director attends a meeting for the express purpose of objecting
to the transaction of any business because the meeting is not lawfully called or
convened.
Section
10. The Board of Directors may by resolution provide for an Executive Committee
of said Board, which shall serve at the pleasure of the Board of Directors and,
during the intervals between the meetings of said Board, shall possess and may
exercise any or all of the powers of the Board of Directors in the management of
the business and affairs of the corporationCompany, except with respect to any matters
which, by resolution of the Board of Directors, may from time to time be
reserved for action by said Board.
Section
11. The Executive Committee, if established by the Board, shall consist of the
Chief Executive Officer of the Company and two or more additional directors, who
shall be elected by the Board of Directors to serve at the pleasure of said
Board until the first meeting of the Board of Directors following the next
annual meeting of shareholders and until their successors shall have been
elected. Vacancies in the Committee shall be filled by the Board of
Directors.
Section
12. Meetings of the Executive Committee shall be held whenever called by the
chairman or by a majority of the members of the committee, and shall be held at
such time and place as shall be specified in the notice of such
meeting. The Secretary or an Assistant Secretary shall give at least
one day's notice of the time, place and purpose of each such meeting to each
committee member in the manner provided in Section 9 of this Article III,
provided, that if the meeting is to be held outside of Kansas City, Missouri, at
least three days' notice thereof shall be given.
Section
13. At all meetings of the Executive Committee, a majority of the
committee members shall constitute a quorum and the unanimous act of all the
members of the committee present at a meeting where a quorum is present shall be
the act of the Executive Committee. All action by the Executive
Committee shall be reported to the Board of Directors at its meeting next
succeeding such action.
Section
14. In addition to the Executive Committee provided for by these
By-laws, the Board of Directors, by resolution adopted by a majority of the
whole Board of Directors, (i) shall designate, as standing committees, an Audit
Committee, a Compensation and Development
Committee and a Governance Committee, and (ii) may designate one or more
special committees, each consisting of two or more directors. Each
standing or special committee shall have and may exercise so far as may be
permitted by law and to the extent provided in such resolution or resolutions or
in these By-laws, the responsibilities of the business and affairs of the corporationCompany. The Board of Directors may,
at its discretion, appoint qualified directors as alternate members of a
standing or special committee to serve in the temporary absence or disability of
any member of a committee. Except where the context requires
otherwise, references in these By-laws to the Board of Directors shall be deemed
to include the Executive Committee, a standing committee or a special committee
of the Board of Directors duly authorized and empowered to act in the
premises.
Section
15. Each standing or special committee shall record and keep a record
of all its acts and proceedings and report the same from time to time to the
Board of Directors.
Section
16. Regular meetings of any standing or special committee, of which
no notice shall be necessary, shall be held at such times and in such places as
shall be fixed by majority of the committee. Special meetings of a
committee shall be held at the request of any member of the
committee. Notice of each special meeting of a committee shall be
given not later than one day prior to the date on which the special meeting is
to be held. Notice of any special meeting need not be given to any
member of a committee, if waived by him in writing or by telegraph
before or
after the meeting; and any meeting of a committee shall be a legal meeting
without notice thereof having been given, if all the members of the committee
shall be present.
Section
17. A majority of any committee shall constitute a quorum for the
transaction of business, and the act of a majority of those present, by
telephone conference call or otherwise, at any meeting at which a quorum is
present shall be the act of the committee. Members of any committee
shall act only as a committee and the individual members shall have no power as
such.
Section
18. The members or alternates of any standing or special committee
shall serve at the pleasure of the Board of Directors.
Section
19. If all the directors severally or collectively shall consent in
writing to any action which is required to be or may be taken by the directors,
such consents shall have the same force and effect as a unanimous vote of the
directors at a meeting duly held. The Secretary shall file such
consents with the minutes of the meetings of the Board of
Directors.
Section
20. Only persons who are nominated in accordance with the following
procedures shall be eligible for election as directors of the Company, except as
may be otherwise provided in the Restated Articles of Consolidation of the
Company with respect to the right of holders of Preferred Stock to nominate and
elect a specified number of directors in certain
circumstances. Nominations of persons for election to the Board of
Directors may be made at any annual meeting of shareholders (a) by or at the
direction of the Board of Directors (or any duly authorized committee thereof)
or (b) by any shareholder of the Company (i) who is a shareholder of record on
the date of the giving of the notice provided for in this Section 20 and on the
record date for the determination of shareholders entitled to vote at such
annual meeting and (ii) who complies with the notice procedures set forth in
this Section 20.
In addition to any other
applicable requirements, for a nomination to be made by a shareholder, such
shareholder must have given timely notice thereof in proper written form to the
Secretary of the Company.
To be timely, a
shareholder's notice to the Secretary must be delivered to or mailed and
received at the principal executive offices of the Company not less than sixty
(60) days nor more than ninety (90) days prior to the date of the annual meeting
of shareholders; provided, however, that in the event that
less than seventy (70) days' notice or prior public disclosure of the date of
the meeting is given to shareholders, notice by the shareholder in order to be
timely must be so received not later than the close of business on the tenth
(10) day
following the day on which such notice of the date
of the annual meeting was mailed or such public disclosure of the date of the
annual meeting was made, whichever first occurs.
To be in proper written
form, a shareholder's notice to the Secretary must set forth (a) as to each
person whom the shareholder proposes to nominate for election as a director (i)
the name, age, business address and residence address of the person, (ii) the
principal occupation or employment of the person, (iii) the class or series and
number of shares of capital stock of the
Company that are owned
beneficially or of record by the person and (iv) any other information relating
to the person that would be required to be disclosed in a proxy statement or
other filings required to be made in connection with solicitations of proxies
for election of directors pursuant to Section 14 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"),
and the rules and regulations promulgated thereunder; and (b) as to the
shareholder giving the notice (i) the name and record of such shareholder, (ii)
the class or series and number of shares of capital stock of the Company that
are owned beneficially or of record by such shareholder, (iii) a description of
all arrangements or understandings between such shareholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made by such shareholder, (iv) a
representation that such shareholder intends to appear in person or by proxy at
the meeting to nominate the persons named in the notice and (v) any other
information relating to such shareholder that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated
thereunder. Such notice must be accompanied by a written consent of
each proposed nominee to being name as a nominee and to serve as a director if
elected.
No person shall be
eligible for election as a director of the Company unless nominated in
accordance with the procedures set forth in this Section 20. If the
Chairman of the annual meeting determines that a nomination was not made in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the nomination was defective and such defective
nomination shall be disregarded.
ARTICLE
IV
Officers
Section
1. The officers of the Company shall include a Chairman of the Board,
a President, one or more Vice Presidents, a Secretary, one or more Assistant
Secretaries, a Treasurer and one or more Assistant Treasurers, all of whom shall
be appointed by the Board of Directors. Any one person may hold two
or more offices except that the offices of President and Secretary may not be
held by the same person.
Section
2. The officers of the Company shall be appointed annually by the
Board of Directors. The office of Chairman of the Board may or may
not be filled, as may be deemed advisable by the Board of
Directors.
Section
3. The Board of Directors may from time to time appoint such other
officers as it shall deem necessary or expedient, who shall hold their offices
for such terms and shall exercise such powers and perform such duties as the
Board of Directors or the Chief Executive Officer may from time to time
determine.
Section
4. The officers of the Company shall hold office until their
successors shall be chosen and shall qualify. Any officer appointed
by the Board of Directors may be removed at
any time
by the affirmative vote of a majority of the whole board. If the
office of any officer becomes vacant for any reason, or if any new office shall
be created, the vacancy may be filled by the Board of Directors.
Section
5. The salaries of all officers of the Company shall be fixed by the
Board of Directors.
ARTICLE
V
Powers and Duties of
Officers
Section
1. The Board of Directors shall designate the Chief Executive Officer
of the Company, who may be either the Chairman of the Board or the
President. The Chief Executive Officer shall have general and active
management of and exercise general supervision of the business and affairs of
the Company, subject, however, to the right of the Board of Directors, or the
Executive Committee acting in its stead, to delegate any specific power to any
other officer or officers of the Company, and the Chief Executive Officer shall
see that all orders and resolutions of the Board of Directors and the Executive
Committee are carried into effect. During such times when neither the
Board of Directors nor the Executive Committee is in session, the Chief
Executive Officer of the Company shall have and exercise full corporate
authority and power to manage the business and affairs of the Company (except
for matters required by law, the By-laws or the aArticles of consolidationIncorporation to be exercised by the shareholders
or Board itself or as may otherwise be specified by orders or resolutions of the
Board) and the Chief Executive Officer shall take such actions, including
executing contracts or other documents, as he deems necessary or appropriate in
the ordinary course of the business and affairs of the Company. The
Vice Presidents and other authorized persons are authorized to take actions
which are (i) routinely required in the conduct of the Company's business or
affairs, including execution of contracts and other documents incidental
thereto, which are within their respective areas of assigned responsibility, and
(ii) within the ordinary course of the Company's business or affairs as may be
delegated to them respectively by the Chief Executive Officer.
Section
2. The Chairman of the Board shall preside at all meetings of the
shareholders and at all meetings of the Board of Directors, and shall perform
such other duties as the Board of Directors shall from time to time prescribe,
including, if so designated by the Board of Directors, the duties of Chief
Executive Officer.
Section
3. The President, if not designated Chief Executive Officer, shall
perform such duties and exercise such powers as shall be assigned to him from
time to time by the Board of Directors or the Chief Executive
Officer. In the absence of the Chairman of the Board, or if the
position of Chairman of the Board be vacant, the President shall preside at all
meetings of the shareholders and at all meetings of the Board of
Directors.
Section
4. The Vice Presidents shall perform such duties and exercise such
powers as shall be assigned to them from time to time by the Board of Directors
or the Chief Executive Officer.
Section
5. The Secretary shall attend all meetings of the shareholders, the
Board of Directors and the Executive Committee, and shall keep the minutes of
such meetings. He shall give, or cause to be given, notice of all
meetings of the shareholders, the Board of Directors and the Executive
Committee, and shall perform such other duties as may be prescribed by the Board
of Directors or the Chief Executive Officer. He shall be the
custodian of the seal of the Company and shall affix the same to any instrument
requiring it and, when so affixed, shall attest it by his
signature. He shall, in general, perform all duties incident to the
office of secretary.
Section
6. The Assistant Secretaries shall perform such of the duties and
exercise such of the powers of the Secretary as shall be assigned to them from
time to time by the Board of Directors or the Chief Executive Officer or the
Secretary, and shall perform such other duties as the Board of Directors or the
Chief Executive Officer shall from time to time prescribe.
Section
7. The Treasurer shall have the custody of all moneys and securities
of the Company. He is authorized to collect and receive all moneys
due the Company and to receipt therefor, and to endorse in the name of the
Company and on its behalf when necessary or proper all checks, drafts, vouchers
or other instruments for the payment of money to the Company and to deposit the
same to the credit of the Company in such depositaries as may be designated by
the Board of Directors. He is authorized to pay interest on
obligations and dividends on stocks of the Company when due and
payable. He shall, when necessary or proper, disburse the funds of
the Company, taking proper vouchers for such disbursements. He shall
render to the Board of Directors and the Chief Executive Officer, whenever they
may require it, an account of all his transactions as Treasurer and of the
financial condition of the Company. He shall perform such other
duties as may be prescribed by the Board of Directors or the Chief Executive
Officer. He shall, in general, perform all duties incident to the
office of treasurer.
Section
8. The Assistant Treasurers shall perform such of the duties and
exercise such of the powers of the Treasurer as shall be assigned to them from
time to time by the Board of Directors or the Chief Executive Officer or the
Treasurer, and shall perform such other duties as the Board of Directors or the
Chief Executive Officer shall from time to time prescribe.
Section
9. The Board of Directors may, by resolution, require any officer to
give the Company a bond (which shall be renewed every six years) in such sum and
with such surety or sureties as shall be satisfactory to the Board for the
faithful performance of the duties of his office and for the restoration to the
Company, in 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 and belonging to the Company.
Section
10. In the case of absence or disability or refusal to act of any
officer of the Company, other than the Chairman of the Board, the Chief
Executive Officer may delegate the
powers
and duties of such officer to any other officer or other person unless otherwise
ordered by the Board of Directors.
Section
11. The Chairman of the Board, the President, the Vice Presidents and
any other person duly authorized by resolution of the Board of Directors shall
severally have power to execute on behalf of the Company any deed, bond,
indenture, certificate, note, contract or other instrument authorized or
approved by the Board of Directors.
Section
12. Unless otherwise ordered by the Board of Directors, the Chairman
of the Board, the President or any Vice President of the Company (a) shall have
full power and authority to attend and to act and vote, in the name and on
behalf of this Company, at any meeting of shareholders of any corporation in
which this Company may hold stock, and at any such meeting shall possess and may
exercise any and all of the rights and powers incident to the ownership of such
stock, and (b) shall have full power and authority to execute, in the name and
on behalf of this Company, proxies authorizing any suitable person or persons to
act and to vote at any meeting of shareholders of any corporation in which this
Company may hold stock, and at any such meeting the person or persons so
designated shall possess and may exercise any and all of the rights and powers
incident to the ownership of such stock.
ARTICLE
VI
Certificates of
Stock
Section
1. The Board of Directors shall provide for the issue, transfer and
registration of the certificates representing the shares of capital stock of the
Company, and shall appoint the necessary officers, transfer agents and
registrars for that purpose.
Section
2. Until otherwise ordered by the Board of Directors, stock
certificates shall be signed by the President or a Vice President and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer,
and sealed with the seal of the Company. Such seal may be facsimile,
engraved or printed. In case any officer or officers who shall have
signed, or whose facsimile signature or signatures shall have been used on, any
stock certificate or certificates shall cease to be such officer or officers of
the Company, whether because of death, resignation or otherwise, before such
certificate or certificates shall have been delivered by the Company, such
certificate or certificates may nevertheless be issued by the Company with the
same effect as if the person or persons who signed such certificate or
certificates or whose facsimile signature or signatures shall have been used
thereon had not ceased to be such officer or officers of the
Company.
Section
3. Transfers of stock shall be made on the books of the Company only
by the person in whose name such stock is registered or by his attorney lawfully
constituted in writing, and unless otherwise authorized by the Board of
Directors only on surrender and cancellation of the certificate
transferred. No stock certificate shall be issued to a transferee
until the transfer has been made on the books of the Company.
Section
4. The Company shall be entitled to treat the person in whose name
any share of stock is registered as the owner thereof, for all purposes, and
shall not be bound to recognize any equitable or other claim to or interest in
such share on the part of any other person, whether or not it shall have notice
thereof, except as otherwise expressly provided by the laws of
Missouri.
Section
5. In case of the loss or destruction of any certificate for shares
of the Company, a new certificate may be issued in lieu thereof under such
regulations and conditions as the Board of Directors may from time to time
prescribe.
Section
6. (a) Notwithstanding anything to the contrary in this Article VI,
unless the Articles of Incorporation or another provision in these Bylaws
provide otherwise, the Board of Directors may authorize the issue of some or all
of the shares of any or all of its classes or series without
certificates. The authorization does not affect shares already
represented by certificates until such certificates are surrendered to the
Company.
(b) Every
holder of uncertificated shares is entitled to receive a statement of holdings
as evidence of share ownership.
(c) After
the issue or transfer of shares without certificates, the Company shall, if
required by law or agreement, provide to such holders of the applicable
uncertificated shares a statement that the Company will furnish each such
shareholder information pertaining to classes of shares or different series
within a class, the designations, relative rights, preferences and limitations
applicable to each class and the variations in rights, preferences and
limitations determined for each such series.
ARTICLE
VII
Closing of Transfer
Books
The
Board of Directors shall have power to close the stock transfer books of the
Company for a period not exceeding seventy days preceding the date of any
meeting of 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, any such meeting, and any
adjournment thereof, or entitled to receive payment of any such dividend, or to
any such allotment of rights, or to exercise the rights in respect of any such
change, conversion or exchange of shares, and in such case such shareholders and
only such shareholders as shall be shareholders of record on the date of closing
the transfer books or on the record date so fixed shall be entitled to notice
of, and to vote at, such meeting and any adjournment thereof, or to receive
payment of such dividend, or to receive such allotment of rights, or to exercise
such
rights,
as the case may be, notwithstanding any transfer of any shares on the books of
the Company after such date of closing of the transfer books or such record date
fixed as aforesaid.
ARTICLE
VIII
Inspection of
Books
Section
1. A shareholder shall have the right to inspect books of the Company
only to the extent such right may be conferred by law, by the aArticles of consolidationIncorporation, by the By-laws or by resolution of
the Board of Directors.
Section
2. Any shareholder desiring to examine books of the Company shall
present a demand to that effect in writing to the PresidentChief Executive Officer or the Secretary or the
Treasurer of the Company. Such demand shall state:
(a) the
particular books which he desires to examine;
(b) the
purpose for which he desires to make the examination;
(c) the
date on which the examination is desired;
(d) the
probable duration of time the examination will require; and
(e) the
names of the persons who will be present at the examination.
Within
three days after receipt of such demand, the PresidentChief Executive Officer or the Secretary or the
Treasurer shall, if the shareholder's purpose be lawful, notify the shareholder
making the demand of the time and place the examination may be
made.
Section
3. The right to inspect books of the Company may be exercised only at
such times as the Company's registered office is normally open for business and
may be limited to four hours on any one day.
Section
4. The Company shall not be liable for expenses incurred in
connection with any inspection of its books.
ARTICLE
IX
Corporate
Seal
The
corporate seal of the Company shall have inscribed thereon the name of the
Company and the words "Corporate Seal", "Missouri" and "19222001".
ARTICLE
X
Fiscal
Year
Section
1. The fiscal year of the Company shall be the calendar
year.
Section
2. As soon as practicable after the close of each fiscal year, the
Board of Directors shall cause a report of the business and affairs of the
Company to be made to the shareholders.
ARTICLE
XI
Waiver of
Notice
Whenever
by statute or by the aArticles of consolidationIncorporation or by these By-laws any notice
whatever is required to be given, a waiver thereof in writing signed by the
person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of such
notice.
ARTICLE
XII
Amendments
The
Board of Directors may make, alter, amend or repeal By-laws of the Company by a
majority vote of the whole Board of Directors at any regular meeting of the
Board or at any special meeting of the Board if notice thereof has been given in
the notice of such special meeting. Nothing in this Article shall be
construed to limit the power of the shareholders to make, alter, amend or repeal
By-laws of the Company at any annual or special meeting of shareholders by a
majority vote of the shareholders present and entitled to vote at such meeting,
provided a quorum is present.
ex10_1.htm
Exhibit
10.1
INDEMNIFICATION
AGREEMENT
This Agreement is made as of the _____
day of _____________, 200___, by and between Great Plains Energy Incorporated, a
Missouri corporation (the "Company"), and ____________________
("Indemnitee"), a Director or Officer of the Company.
WHEREAS, it is essential to the Company
to retain and attract as Directors and Officers the most capable persons
available;
WHEREAS, it is now and always has been
the express policy of the Company to indemnify its Directors and Officers so as
to provide them with the maximum possible protection permitted by
law;
WHEREAS, Indemnitee does not regard the
protection available under the Company's Articles of Incorporation and
by-laws as adequate in the present circumstances, and may not be willing to
serve as a Director or Officer without adequate protection, and the Company
desires Indemnitee to serve in such capacity;
NOW, THEREFORE, in consideration of the
premises and of Indemnitee serving the Company directly or, at its request,
another enterprise, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Certain
Definitions:
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(a)
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Beneficial
Owner: shall have the meaning set forth in Rule 13d-3 under the
Exchange Act.
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(b)
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Change in
Control: shall be deemed to have occurred
if:
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(1) any
Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company (not
including in the securities beneficially owned by
such Person any securities acquired directly from the Company or its
affiliates other than in connection with the acquisition by the
Company or its affiliates of a business)
representing 20% or more of either the then outstanding
shares of common stock of the Company or the combined voting
power of the Company's then outstanding securities;
or
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(2) the
following individuals cease for any reason to constitute a majority
of the number of directors then serving: individuals who, on the date
hereof, constitute the Board and any new director (other than a
director whose initial assumption of office is in connection
with an actual or threatened election contest, including but not
limited to a consent solicitation, relating to the election of
directors of the Company, as such terms are used in Rule 14a-11 of
Regulation 14A
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1
under the
Exchange Act) whose appointment or election by the Board or
nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds (2/3) of the directors then still
in office who either were directors on the date hereof or whose
appointment, election or nomination for election was
previously so approved; or
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(3) the
occurrence of, or the stockholders of the Company approve, a merger,
consolidation, reorganization or similar corporate transaction of the
Company, whether or not the Company is the surviving corporation in such
transaction, or the stockholders of the Company approve the issuance of
voting securities of the Company in connection with a merger,
consolidation, reorganization or similar corporate transaction of the
Company (or any direct or indirect subsidiary of the Company)
pursuant to applicable stock exchange requirements, other than (i) a
merger, consolidation, reorganization or similar corporate
transaction which would result in the voting securities of the
Company outstanding immediately prior to such merger, consolidation,
reorganization or similar corporate transaction continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity or any parent thereof), in
combination with the ownership of any trustee or other fiduciary
holding securities under an employee benefit plan of the
Company, at least 60% of the combined voting power of the voting
securities of the Company or such surviving entity or any parent
thereof outstanding immediately after such merger, consolidation,
reorganization or similar corporate transaction, or (ii) a merger,
consolidation, reorganization or similar corporate transaction
effected to implement a recapitalization of the Company (or
similar transaction) in which no Person is or becomes the
Beneficial Owner, directly or indirectly, of securities of the Company
(not including in the securities Beneficially Owned by such Person
any securities acquired directly from the Company or its
affiliates other than in connection with the acquisition by the
Company or its affiliates of a business) representing 20% or
more of either the then outstanding shares of common stock of
the Company or the combined voting power of the Company's then outstanding
securities; or
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(4)
the occurrence of, or the stockholders of the Company approve a plan
of, a complete liquidation or dissolution of the Company or an
agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets, other than a sale or
disposition by the Company of all or substantially all of the
Company's assets to an entity, at least 60% of the combined
voting power of the voting securities of which are owned by Persons in
substantially the same proportions as their ownership of the Company
immediately prior to such sale.
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Notwithstanding
the foregoing, no "Change in Control" shall be deemed to have
occurred if there is consummated any transaction or
series of integrated transactions immediately following which
the record holders of the common stock of the Company
immediately prior to such transaction or series of
transactions
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continue
to have substantially the
same proportionate ownership in an entity which owns all or
substantially all of the assets of the Company immediately
following such transaction or series of transactions.
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(c)
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Claim: any
threatened, pending or completed action, suit or proceeding, or any
inquiry or investigation, whether instituted by the
Company or any other party, that Indemnitee in good faith believes
might lead to the institution of any such action, suit or
proceeding, whether civil, criminal, administrative,
investigative or other.
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(d)
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Exchange
Act: shall mean the Securities Exchange Act of
l934, as amended from time to time.
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(e)
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Expenses: include
attorneys' fees and all other costs, expenses and obligations paid or
incurred in connection with investigating, defending, being a
witness in or participating in (including on appeal), or
preparing to defend, be a witness in or participate in any
Claim relating to any Indemnifiable
Event.
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(f)
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Indemnifiable
Event: any event or occurrence related to the fact
that Indemnitee is or was a director, officer, employee, agent
or fiduciary of the Company, or is or was serving at the request of
the Company as a director, officer, employee, trustee, agent or
fiduciary of another corporation, partnership, joint venture,
employee benefit plan, trust or other enterprise, or by reason of
anything done or not done by Indemnitee in any such
capacity.
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(g)
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Independent Legal
Counsel: an attorney or firm of attorneys, selected
in accordance with the provisions of Section 3, who shall not have
otherwise performed services for the Company or
Indemnitee within the last three years (other than with
respect to matters concerning the rights of Indemnitee
under this Agreement, or of other indemnitees under similar indemnity
agreements).
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(h)
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Person: shall
have the meaning given in Section 3(a)(9) of the Exchange Act, as
modified and used in Sections 13(d) and 14(d) thereof, except
that such term shall not include (i) the Company or any of its
affiliates (as defined in Rule 12b-2 promulgated under the Exchange
Act), (ii) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or
any of its affiliates, (iii) an underwriter temporarily
holding securities pursuant to an offering of such
securities, or (iv) a corporation owned, directly or
indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership
of stock of the Company.
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(i)
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Potential Change in
Control: shall be deemed to have occurred
if:
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(1) the
Company enters into an agreement, the consummation of which would
result in the occurrence of a Change in
Control;
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(2) the
Company or any Person publicly announces an intention to take or
to consider taking actions which, if consummated, would constitute a
Change in Control;
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(3) any
Person becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing 10%
or more of either the then outstanding shares of common stock of the
Company or the combined voting power of the Company's then
outstanding securities;
or
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(4) the
Board adopts a resolution to the effect that, for purposes of this
Agreement, a Potential Change in Control has
occurred.
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(j)
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Reviewing
Party: any appropriate person or body consisting of a
member or members of the Company's Board of Directors or any other
person or body appointed by the Board who is not a party to the
particular Claim for which Indemnitee is seeking
indemnification, or Independent Legal
Counsel.
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2. Basic Indemnification
Arrangement. (a) In the event Indemnitee was, is or
becomes a party to or witness or other participant in, or is threatened to be
made a party to or witness or other participant in, a Claim by reason of (or
arising in part out of) an Indemnifiable Event, the Company shall indemnify
Indemnitee to the fullest extent permitted by law as soon as practicable
but in any event no later than thirty days after written demand is presented to
the Company, against any and all Expenses, judgments, fines, penalties and
amounts paid in settlement (including all interest, assessments and other
charges paid or payable in connection with or in respect of such Expenses,
judgments, fines, penalties or amounts paid in settlement) of such
Claim. If so requested by Indemnitee, the Company shall advance
(within two business days of such request) any and all Expenses to
Indemnitee (an "Expense Advance").
(b) Notwithstanding the
foregoing, (i) the obligations of the Company under Section 2(a) shall be
subject to the condition that the Reviewing Party shall not have determined
(in a written opinion, in any case in which the Independent Legal Counsel
referred to in Section 3 hereof is involved) that Indemnitee would not be
permitted to be indemnified under applicable law, and (ii) the obligation
of the Company to make an Expense Advance pursuant to Section 2(a) shall be
subject to the condition that, if, when and to the extent that the
Reviewing Party determines that Indemnitee would not be permitted to be so
indemnified under applicable law, the Company shall be entitled to be reimbursed
by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts
theretofore paid; provided, however, that if Indemnitee has commenced or
thereafter commences legal proceedings in a court of competent jurisdiction to
secure a determination that Indemnitee should be indemnified under
applicable law, any determination made by the Reviewing Party that
Indemnitee would not be permitted to be indemnified under applicable law shall
not be binding and Indemnitee shall not be required to reimburse the Company for
any Expense Advance until a final judicial determination is made with respect
thereto (as to which all rights of appeal therefrom have been exhausted or
lapsed). If there has not been a Change in Control, the Reviewing
Party shall be selected by the Board of Directors, and if there has been
such a Change in Control (other than a Change in Control which
has been
approved by a majority of the Company's Board of Directors who were directors
immediately prior to such Change in Control), the Reviewing Party
shall be the Independent Legal Counsel referred to in Section 3
hereof. If there has been no determination by the Reviewing
Party or if the Reviewing Party determines that Indemnitee substantively would
not be permitted to be indemnified in whole or in part under applicable law,
Indemnitee shall have the right to commence litigation in any court in the
State of Missouri having subject matter jurisdiction thereof and
in which venue is proper seeking an initial determination by the court
or challenging any such determination by the Reviewing Party or any
aspect thereof, including the legal or factual bases therefor, and the
Company hereby consents to service of process and to appear in any such
proceeding. Any determination by the Reviewing Party otherwise shall be
conclusive and binding on the Company and Indemnitee.
(c) The
Company and Indemnitee agree that this indemnification arrangement is based upon
the statutory authorization in the Missouri General and Business Corporation
Law, §351.355, and in particular subparts 6 and 7 thereof, by virtue of the
provisions in Article Thirteenth of the Company’s Articles of Incorporation
dated February 26, 2001. No provision of this Agreement shall permit the
Company to indemnify Indemnitee from or on account of Indemnitee’s conduct which
is finally adjudged to have been knowingly fraudulent, deliberately dishonest or
willful misconduct.
3. Change in
Control. The Company agrees that if there is a Change in
Control of the Company (other than a Change in Control which has been
approved by a majority of the Company's Board of Directors who were
directors immediately prior to such Change in Control) then with respect to
all matters thereafter arising concerning the rights of Indemnitee to indemnity
payments and Expense Advances under this Agreement or any other agreement or
Company By-law now or hereafter in effect relating to Claims for Indemnifiable
Events, the Company shall seek legal advice only from Independent Legal Counsel
selected by Indemnitee and approved by the Company (which approval shall
not be unreasonably withheld). Such counsel, among other things,
shall render its written opinion to the Company and Indemnitee as to
whether and to what extent the Indemnitee would be permitted to be
indemnified under applicable law. The Company agrees to pay the
reasonable fees of the Independent Legal Counsel referred to above and to
fully indemnify such counsel against any and all expenses (including
attorneys' fees), claims, liabilities and damages arising out of or relating to
this Agreement or its engagement pursuant hereto.
4. Establishment of
Trust. In the event of a Potential Change in Control, the
Company shall, upon written request by Indemnitee, create a trust for the
benefit of Indemnitee and from time to time upon written request of Indemnitee
shall fund such trust in an amount sufficient to satisfy any and all Expenses
reasonably anticipated at the time of each such request to be incurred in
connection with investigating, preparing for and defending any Claim
relating to an Indemnifiable Event, and any and all judgments, fines, penalties
and settlement amounts of any and all Claims relating to an Indemnifiable Event
from time to time actually paid or claimed, reasonably anticipated or
proposed to be paid, provided that in no event shall more than $1 million be
required to be deposited in any trust created hereunder in excess of
amounts deposited in respect of reasonably anticipated Expenses. The
amount or amounts to be deposited in the
trust
pursuant to the foregoing funding obligation shall be determined by the
Reviewing Party, in any case in which the Independent Legal Counsel referred to
above is involved. The terms of the trust shall provide that upon a
Change in Control (i) the trust shall not be revoked or the principal thereof
invaded, without the written consent of the Indemnitee, (ii) the trustee
shall advance, within two business days of a request by the Indemnitee, any and
all Expenses to the Indemnitee (and the Indemnitee hereby agrees to
reimburse the trust under the circumstances under which the Indemnitee
would be required to reimburse the Company under Section 2(b) of this
Agreement), (iii) the trust shall continue to be funded by the Company in
accordance with the funding obligation set forth above, (iv) the trustee shall
promptly pay to Indemnitee all amounts for which Indemnitee shall be
entitled to indemnification pursuant to this Agreement or otherwise, and
(v) all unexpended funds in such trust shall revert to the Company upon a final
determination by the Reviewing Party or a court of competent jurisdiction,
as the case may be, that Indemnitee has been fully indemnified under the terms
of this Agreement. The trustee shall be chosen by
Indemnitee. Nothing in this Section 4 shall relieve the Company
of any of its obligations under this Agreement.
5. Indemnification for
Additional Expenses. The Company shall indemnify
Indemnitee against any and all expenses (including attorneys' fees) and, if
requested by Indemnitee, shall (within two business days of such request)
advance such expenses to Indemnitee, which are incurred by Indemnitee in
connection with any action brought by Indemnitee for (i) indemnification or
advance payment of Expenses by the Company under this Agreement or any other
agreement or Company By-law now or hereafter in effect relating to Claims
for Indemnifiable Events and/or (ii) recovery under any directors' and officers'
liability insurance policies maintained by the Company, regardless of whether
Indemnitee ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may
be.
6. Partial Indemnity,
Etc. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement of a
Claim but not, however, for all of the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is
entitled. Moreover, notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been successful on the merits or
otherwise in defense of any or all Claims relating in whole or in part to an
Indemnifiable Event or in defense of any issue or matter therein, including
dismissal without prejudice, Indemnitee shall be indemnified against all
Expenses incurred in connection therewith.
7. Presumption;
Burden of
Proof. Upon making any demand for indemnification under this
Agreement, Indemnitee shall be presumed to be entitled to such
indemnification. In connection with any determination by
the Reviewing Party or otherwise as to whether Indemnitee is entitled
to be indemnified hereunder the burden of proof shall be on the
Company to establish by clear and convincing evidence that Indemnitee
is not so entitled.
8. Effect of Certain
Proceedings, Etc. For purposes of this Agreement, the
termination of any claim, action, suit or proceeding, by judgment, order,
settlement (whether with
or
without court approval) or conviction, or upon a plea of nolo contendere, or its
equivalent, shall not create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by applicable
law. In addition, neither the failure of the Reviewing Party to have
made a determination as to whether Indemnitee has met any particular
standard of conduct or had any particular belief, nor an actual determination by
the Reviewing Party that Indemnitee has not met such standard of conduct or
did not have such belief, prior to the commencement of legal proceedings by
Indemnitee to secure a judicial determination that Indemnitee should be
indemnified under applicable law shall be a defense to Indemnitee's claim or
create a presumption that Indemnitee has not met any particular standard of
conduct or did not have any particular belief.
9. Nonexclusivity,
Etc. The rights of the Indemnitee hereunder shall be in
addition to any other rights Indemnitee may have under the Company's
By-laws or the Missouri General and Business Corporation Law or
otherwise. To the extent that a change in the Missouri
General and Business Corporation Law (whether by statute or judicial
decision) permits greater indemnification by agreement than
would be afforded currently under the Company's By-laws and this
Agreement, it is the intent of the parties hereto that Indemnitee
shall enjoy by this Agreement the greater benefits so afforded by such
change.
10. Liability
Insurance. To the extent the Company maintains an
insurance policy or policies providing directors' and officers' liability
insurance, Indemnitee shall be covered by such policy or policies, in
accordance with its or their terms, to the maximum extent of the coverage
available for any Company director or officer.
11. Period of
Limitations. No legal action shall be brought and no cause of
action shall be asserted by or in the right of the Company against
Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal
representatives after the expiration of two years from the date of accrual
of such cause of action, and any claim or cause of action of the Company shall
be extinguished and deemed released unless asserted by the timely filing of
a legal action within such two-year period; provided, however, that if any
shorter period of limitations is otherwise applicable to any such cause of
action such shorter period shall govern.
12. Amendments,
Etc. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both of the parties
hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
13. Subrogation. In
the event of payment under this Agreement, the Company shall be subrogated
to the extent of such payment to all of the rights of recovery of
Indemnitee, who shall execute all papers required and shall do everything that
may be necessary to secure such rights, including the execution of such
documents necessary to enable the Company effectively to bring suit to
enforce such rights.
14. No Duplication of
Payments. The Company shall not be liable under this Agreement
to make any payment in connection with any Claim made against Indemnitee to
the extent Indemnitee has otherwise actually received payment (under any
insurance policy, By-law or otherwise) of the amounts otherwise indemnifiable
hereunder. This Indemnification Agreement shall supersede
the Prior Agreement.
15. Binding Effect,
Etc. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their
respective successors, assigns, including any direct or indirect successor
by purchase, merger, consolidation or otherwise to all or substantially all of
the business and/or assets of the Company, spouses, heirs, executors and
personal and legal representatives. This Agreement shall continue in
effect regardless of whether Indemnitee continues to serve as an officer or
director of the Company or of any other enterprise at the Company's
request.
16. Severability. The
provisions of this Agreement shall be severable in the event that any of
the provisions hereof (including any provision within a single section,
paragraph or sentence) is held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable in any respect, and the validity
and enforceability of any such provision in every other respect and of the
remaining provisions hereof shall not be in any way impaired and shall remain
enforceable to the fullest extent permitted by law.
17. Governing
Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Missouri applicable to
contracts made and to be performed in such state without giving effect to the
principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement this _____ day of _____________,
200___.
GREAT PLAINS ENERGY
INCORPORATED
By
_______________________________
Name: [typed
name]
Title: Chairman
of Board and
Chief Executive Officer
INDEMNITEE:
______________________________
[typed name]
8
