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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
October 1, 2001 (October 1, 2001)
GREAT PLAINS ENERGY INCORPORATED
(Exact name of registrant as specified in its charter)
*
(Commission file number)
MISSOURI 43-1916803
(State of other (I.R.S. Employer
jurisdiction of
incorporation or Identification No.)
organization)
1201 Walnut
Kansas City, Missouri 64106
(Address of principal executive offices)
(816) 556-2200
(Registrant's telephone number, including area
code)
NOT APPLICABLE
(Former name or former address, if changed since
last report)
*This report is being filed with the Securities and Exchange
Commission by Great Plains Energy Incorporated as a successor
issuer to Kansas City Power & Light Company by virtue of
paragraph (a) of Rule 12g-3 under the Securities and Exchange Act
of 1934, as amended. The Commission File Number of Kansas City
Power & Light Company is 1-707.
ITEM 5. OTHER EVENTS
(A) Kansas City Power and Light Company, a Missouri Corporation
("KCPL") has completed a corporate reorganization creating a
holding company structure. This structure was implemented through
an agreement and plan of merger among KCPL, Great Plains Energy
Incorporated, a Missouri Corporation ("GPE"), and KCPL Merger Sub
Incorporated, a Missouri Corporation ("Merger Sub") and wholly
owned subsidiary of GPE. As provided for in the plan of merger,
KCPL merged with Merger Sub. KCPL continues as the Surviving
Corporation and a wholly owned Subsidiary of GPE. Pursuant to
Section 351.448 of the General Corporation Law of the State of
Missouri, shareholder approval of the merger was not required.
The merger was consummated on October 1, 2001. Upon its
effectivity, GPE became the successor issuer and listed entity on
the New York Stock Exchange, replacing KCPL. The new GPE trading
symbol GXP replaces the old KCPL symbol KLT.
All outstanding KCPL shares will be honored on a share for
share basis as GPE shares. The same voting powers, designations,
preferences, rights, qualifications, restrictions, and
limitations as previously held will apply. GPE shares will
continue to be represented by the same stock certificates that
represented pre-merger KCPL shares. No actual (or physical)
exchange of stock certificates will occur.
As a result of the merger, each outstanding employee stock
option and warrant to purchase shares of KCPL's common stock
granted under any employee stock option or compensation plan or
arrangement or warrant agreement of KCPL was converted into an
option or warrant to purchase one share of GPE's common stock in
accordance with the provisions of such employee stock option or
compensation plan or arrangement or warrant agreement.
The articles of incorporation and by-laws of GPE are
substantially identical to the restated articles of incorporation
and by-laws of KCPL immediately prior to the merger.
(B) This report is being filed with the Securities and Exchange
Commission by Great Plains Energy Incorporated as a successor
issuer to Kansas City Power & Light Company by virtue of
paragraph (a) of Rule 12g-3 under the Securities Exchange Act of
1934, as amended. The Commission File Number of Kansas City
Power & Light Company is 1-707. This Form 8-K is being filed by
Great Plains Energy Incorporated as a successor issuer as
required by paragraph (f) of Rule 12g-3 under the Securities
Exchange Act of 1934, as amended.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibit
Number
2 Agreement and Plan of Merger Among Kansas City
Power & Light Company, Great Plains Energy
Incorporated and KCPL Merger Sub Incorporated
dated as of October 1, 2001.
3.1 Articles of Incorporation of Great Plains Energy
Incorporated.
3.2 By-laws of Great Plains Energy Incorporated.
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.
GREAT PLAINS ENERGY INCORPORATED
/s/Jeanie Sell Latz
Senior Vice President-Corporate
Services
Date: October 1, 2001
Exhibit 2
AGREEMENT AND PLAN OF MERGER
AMONG
KANSAS CITY POWER & LIGHT COMPANY,
GREAT PLAINS ENERGY INCORPORATED
AND
KCPL MERGER SUB INCORPORATED
DATED AS OF OCTOBER 1, 2001
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger
Agreement"), dated as of October 1, 2001, is among Kansas
City Power & Light Company, a Missouri corporation
("KCPL"), Great Plains Energy Incorporated, a Missouri
corporation ("GPE") and a direct, wholly owned subsidiary
of KCPL, and KCPL Merger Sub Incorporated, a Missouri
corporation ("Merger Sub") and a direct, wholly owned
subsidiary of GPE.
R E C I T A L S:
WHEREAS, KCPL had authorized capital stock
consisting of (i) 150,000,000 shares of common stock, no
par value ("KCPL Common Stock"), of which, as of the date
hereof, 61,908,726 shares are issued and outstanding and
10,916 shares were held in KCPL's treasury; (ii) 100,000
shares of 3.80% cumulative preferred stock, par value
$100 per share ("KCPL 3.80% Preferred"), of which 100,000
shares are outstanding on the date hereof; (iii) 100,000
shares of 4.50% cumulative preferred stock, par value
$100 per share ("KCPL 4.50% Preferred"), of which 100,000
shares are outstanding on the date hereof; (iv) 70,000
shares of 4.20% cumulative preferred stock, par value
$100 per share ("KCPL 4.20% Preferred"), of which 70,000
shares are outstanding on the date hereof; and (v)
120,000 shares of 4.35% cumulative preferred stock, par
value $100 per share ("KCPL 4.35% Preferred" and,
together with KCPL 3.80% Preferred, KCPL 4.50% Preferred
and KCPL 4.20% Preferred, but excluding KCPL 4%
Preferred, the "KCPL Preferred"), of which 120,000 shares
are outstanding on the date hereof; and
WHEREAS, GPE had authorized capital stock
consisting of (i) 150,000,000 shares of common stock, no
par value (the "GPE Common Stock"), of which 1,000 shares
are issued and outstanding and no shares are held in
treasury, and (ii) 100,000 shares of 3.80% cumulative
preferred stock, par value $100 per share (the "GPE 3.80%
Preferred"), of which no shares are outstanding; (iii)
100,000 shares of 4.50% cumulative preferred stock, par
value $100 per share (the "GPE 4.50% Preferred"), of
which no shares are outstanding; (iv) 70,000 shares of
4.20% cumulative preferred stock, par value $100 per
share (the "GPE 4.20% Preferred"), of which no shares are
outstanding; and (v) 120,000 shares of 4.35% cumulative
preferred stock, par value $100 per share (the "GPE 4.35%
Preferred" and, together with the GPE 3.80% Preferred,
the GPE 4.50% Preferred and the GPE 4.20% Preferred, the
"GPE Preferred"), of which no shares are outstanding; and
WHEREAS, as of the date hereof, Merger Sub has
an authorized capital stock consisting of 100 shares of
common stock, no par value (the "Merger
Sub Common Stock"), of which one share is issued and
outstanding on the date hereof and owned by GPE; and
WHEREAS, the designations, rights and
preferences, and the qualifications, limitations and
restrictions thereof, of the GPE Common Stock, the GPE
3.80% Preferred, the GPE 4.50% Preferred, the GPE 4.20%
Preferred and the GPE 4.35% Preferred, are the same as
those of KCPL Common Stock, KCPL 3.80% Preferred, KCPL
4.50% Preferred, KCPL 4.20% Preferred and KCPL 4.35%
Preferred, respectively; and
WHEREAS, the Articles of Incorporation of GPE
(the "GPE Charter") and the By-laws of GPE (the "GPE By-
laws") in effect immediately after the Effective Date (as
hereinafter defined) will contain provisions identical to
the Restated Articles of Consolidation of KCPL (the "KCPL
Charter") and By-laws of KCPL (the "KCPL By-laws") in
effect immediately before the Effective Date (other than
with respect to matters excepted by Section 351.448.1(4)
of the Missouri General and Business Corporation Law (the
"MGBCL")); and
WHEREAS, the directors and officers of KCPL
immediately prior to the Merger (as hereinafter defined)
will be the directors and officers of GPE as of the
Effective Date; and
WHEREAS, GPE and Merger Sub are newly formed
corporations organized for the purpose of participating
in the transactions herein contemplated; and
WHEREAS, KCPL desires to create a new holding
company structure by merging Merger Sub with and into
KCPL, with KCPL continuing as the surviving corporation
of such merger, and each outstanding share (or any
fraction thereof) of KCPL Common Stock, KCPL 3.80%
Preferred, KCPL 4.50% Preferred, KCPL 4.20% Preferred and
KCPL 4.35% Preferred, being converted in such merger into
a like number of shares of GPE Common Stock, the GPE
3.80% Preferred, the GPE 4.50% Preferred, the GPE 4.20%
Preferred and the GPE 4.35% Preferred, respectively, all
in accordance with the terms of this Merger Agreement
(the "Merger"); and
WHEREAS, the Boards of Directors of GPE and
KCPL have approved this Merger Agreement and the Merger
upon the terms and subject to the conditions set forth in
this Merger Agreement.
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NOW, THEREFORE, in consideration of the
premises and the covenants and agreements contained in
this Merger Agreement, and intending to be legally bound
hereby, KCPL, GPE and Merger Sub hereby agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1 THE MERGER. In accordance
with Section 351.448 of the MGBCL and subject to and upon
the terms and conditions of this Merger Agreement, Merger
Sub shall, on the Effective Date, be merged with and into
KCPL, the separate corporate existence of Merger Sub
shall cease and KCPL shall continue as the surviving
corporation of the Merger (the "Surviving Corporation").
SECTION 1.2 EFFECTIVE DATE. The parties
shall file articles of merger with respect to the Merger
(the "Articles of Merger"), executed in accordance with
the relevant provisions of the MGBCL, and with this
Merger Agreement attached thereto, with the Secretary of
State of the State of Missouri, and shall make all other
filings or recordings required under the MGBCL to
effectuate the Merger. The Merger shall become effective
upon issuance of the certificate of merger by the
Secretary of State of the State of Missouri (the date of
such filing shall hereinafter be referred to as the
"Effective Date").
SECTION 1.3 RESTATED ARTICLES OF INCORPORATION OF
SURVIVING CORPORATION. From and after the Effective Date,
KCPL's Restated Articles of Incorporation, as in
effect immediately prior to the Effective Date, shall
be the Restated Articles of Incorporation of the
Surviving Corporation, except with such changes as
are permitted by Section 351.448.1(7) of the MGBCL
(the "Surviving Corporation's Charter") until thereafter
amended as provided by law; provided, however, that,
from and after the Effective Date:
(a) Article Third thereof shall be amended
so as to read in its entirety as follows:
"The amount of authorized
capital stock of the Company is One
Thousand (1,000) shares of Common
Stock without par value.
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a. Dividends. Subject to the
limitations in this ARTICLE THIRD set
forth, dividends may be paid on the
Common Stock out of any funds legally
available for the purpose, when and
as declared by the Board of
Directors.
b. Liquidation Rights. In the
event of any liquidation or
dissolution of the Company, after
there shall have been paid to or set
aside for the holders of outstanding
shares having superior liquidation
preferences to Common Stock the full
preferential amounts to which they
are respectively entitled, the
holders of outstanding shares of
Common Stock shall be entitled to
receive pro rata, according to the
number of shares held by each, the
remaining assets of the Company
available for distribution.
c. Voting Rights. Except as
set forth in this ARTICLE THIRD or as
by statute otherwise mandatorily
provided, the holders of the Common
Stock shall exclusively possess full
voting powers for the election of
Directors and for all other purposes.
d. No Preemptive Rights. No
holders of outstanding shares of
Common Stock shall have any
preemptive right to subscribe for or
acquire any shares of stock or any
securities of any kind hereafter
issued by the Company.
e. Consideration for Shares.
Subject to applicable law, the shares
of the Company, now or hereafter
authorized, may be issued for such
consideration as may be fixed from
time to time by the Board of
Directors. Subject to applicable law
and to the provisions of this ARTICLE
THIRD, shares of the Company issued
and thereafter acquired the Company
may be disposed of by the Company for
such consideration as may be fixed
from time to time by the Board of
Directors.
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f. Crediting Consideration to
Capital. The entire consideration
hereafter received upon the issuance
of shares of Common Stock without par
value shall be credited to capital,
and this requirement may not be
eliminated or amended without the
affirmative vote of consent of the
holders of two-thirds of the
outstanding Common Stock.
(b) A new Article Fourteenth shall be added
thereto which shall be and read in its entirety as follows:
"ARTICLE FOURTEENTH. Any act or
transaction by or involving the Company
that requires for its adoption pursuant to
Chapter 351 of the Missouri General and
Business Corporation Law or these Restated
Articles of Incorporation the approval of
the shareholders of the Company shall,
pursuant to Section 351.448 of the
Missouri General and Business Corporation
Law, require, in addition, the approval of
the shareholders of Great Plains Energy
Incorporated, a Missouri corporation, or
any successor thereto by merger, by the
same vote as is required pursuant to
Chapter 351 of the Missouri General and
Business Corporation Law or the Restated
Articles of Incorporation of the Company."
SECTION 1.4 BY-LAWS OF SURVIVING
CORPORATION. From and after the Effective Date, the By-
laws of KCPL, as in effect immediately prior to the
Effective Date, shall constitute the By-laws of the
Surviving Corporation until thereafter amended as
provided therein or by applicable law.
SECTION 1.5 DIRECTORS OF SURVIVING
CORPORATION. The directors of KCPL in office
immediately prior to the Effective Date shall be the
initial directors of the Surviving Corporation and will
hold office from the Effective Date until their
successors are duly elected or appointed and qualified in
the manner provided in the Surviving Corporation's By-
laws, or as otherwise provided by law.
SECTION 1.6 OFFICERS OF SURVIVING
CORPORATION. The officers of KCPL in office immediately
prior to the Effective Date shall be the officers of the
Surviving Corporation until the earlier of their
resignation or removal or until their successors are duly
elected or appointed and qualified in the manner provided
in the Surviving Corporation's By-laws, or as otherwise
provided by law.
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SECTION 1.7 ADDITIONAL ACTIONS. Subject to
the terms of this Merger Agreement, the parties hereto
shall take all such reasonable and lawful action as may
be necessary or appropriate in order to effectuate the
Merger. If, at any time after the Effective Date, the
Surviving Corporation shall consider or be advised that
any deeds, bills of sale, assignments, assurances or any
other actions or things are necessary or desirable to
vest, perfect or confirm, of record or otherwise, in the
Surviving Corporation its right, title or interest in, to
or under any of the rights, properties or assets of
either of Merger Sub or KCPL acquired or to be acquired
by the Surviving Corporation as a result of, or in
connection with, the Merger or otherwise to carry out
this Merger Agreement, the officers and directors of the
Surviving Corporation shall be authorized to execute and
deliver, in the name and on behalf of each of Merger Sub
and KCPL, all such deeds, bills of sale, assignments and
assurances and to take and do, in the name and on behalf
of each of Merger Sub and KCPL or otherwise, all such
other actions and things as may be necessary or desirable
to vest, perfect or confirm any and all right, title and
interest in, to and under such rights, properties or
assets in the Surviving Corporation or otherwise to carry
out this Merger Agreement.
SECTION 1.8 CONVERSION OF SECURITIES. On
the Effective Date, by virtue of the Merger and without
any action on the part of GPE, Merger Sub, KCPL or the
holder of any of the following securities:
(a) CONVERSION OF KCPL COMMON STOCK. Each
share of KCPL Common Stock issued and outstanding
immediately prior to the Effective Date shall be
converted into and thereafter represent one duly
issued, fully paid and nonassessable share of GPE
Common Stock.
(b) CONVERSION OF KCPL COMMON STOCK IN
TREASURY. Each share of KCPL Common Stock issued but
held by KCPL in its treasury immediately prior to
the Effective Date shall be converted into and
thereafter represent one duly issued, fully paid and
non-assessable share of GPE Common Stock held in
such entity's treasury after the Effective Date.
(c) CONVERSION OF KCPL 3.80% PREFERRED.
Each share of KCPL 3.80% Preferred issued and
outstanding immediately prior to the Effective Date
shall be converted into and thereafter represent one
duly issued, fully paid and nonassessable share of
GPE 3.80% Preferred.
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(d) CONVERSION OF KCPL 4.50% PREFERRED.
Each share of KCPL 4.50% Preferred issued and
outstanding immediately prior to the Effective Date
shall be converted into and thereafter represent one
duly issued, fully paid and nonassessable share of
GPE 4.50% Preferred.
(e) CONVERSION OF KCPL 4.20% PREFERRED.
Each share of KCPL 4.20% Preferred issued and
outstanding immediately prior to the Effective Date
shall be converted into and thereafter represent one
duly issued, fully paid and nonassessable share of
GPE 4.20% Preferred.
(f) CONVERSION OF KCPL 4.35% PREFERRED.
Each share of KCPL 4.35% Preferred issued and
outstanding immediately prior to the Effective Date
shall be converted into and thereafter represent one
duly issued, fully paid and nonassessable share of
GPE 4.35% Preferred.
(g) CONVERSION OF CAPITAL STOCK OF MERGER
SUB. Each share of Merger Sub Common Stock issued
and outstanding immediately prior to the Effective
Date shall be converted into and thereafter
represent one duly issued, fully paid and
nonassessable share of common stock, no par value,
of the Surviving Corporation.
(h) CANCELLATION OF CAPITAL STOCK OF GPE.
Each share of GPE Common Stock that is owned by KCPL
immediately prior to the Merger shall automatically
be cancelled and retired and shall cease to exist.
(i) RIGHTS OF CERTIFICATE HOLDERS. From
and after the Effective Date, holders of
certificates formerly evidencing KCPL Common Stock
or KCPL Preferred shall cease to have any rights as
shareholders of KCPL, except as provided by law;
provided, however, that such holders shall have the
rights set forth in Section 1.10 herein.
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SECTION 1.9 STOCK OPTIONS AND EQUITY-BASED
AWARDS. (a) On the Effective Date, automatically and
without any action on the part of KCPL, GPE, Merger Sub
or the holders of any options to acquire shares of KCPL
Common Stock (the "KCPL Stock Options"), or the holders
of any other equity-based award of KCPL, (i) GPE will
assume each KCPL Stock Option and each other equity-based
award of KCPL which is outstanding immediately prior to
the Effective Date, (ii) each such KCPL Stock Option will
become an option to purchase a number of shares of GPE
Common Stock equal to the number of shares of KCPL Common
Stock issuable upon the exercise of such KCPL Stock
Option, and otherwise upon the same terms and conditions
as such KCPL Stock Option and (iii) each such other
equity-based award of KCPL will become a similar equity-
based award with respect to a number of shares of GPE
Common Stock equal to the number of shares of KCPL Common
Stock subject to such equity-based award, and otherwise
upon the same terms and conditions as such equity-based
award.
(b) Upon the consummation of the Merger, GPE
shall assume sponsorship of and all obligations of KCPL
under the Dividend Reinvestment and Direct Stock Purchase
Plan and all employee benefit plans of KCPL, including
but not limited to KCPL's Long-Term Incentive Plan, Long-
and Short-Term Incentive Compensation Plan, Supplemental
Executive Retirement Plan and Nonqualified Deferred
Compensation Plan, and all retirement, medical, dental,
long-term disability, short-term disability, life
insurance, flexible spending account and any other such
benefit plans and programs of KCPL.
SECTION 1.10 SURRENDER OF CERTIFICATES.
(a) Until thereafter surrendered for transfer or exchange
in the ordinary course, each outstanding stock
certificate that, immediately prior to the Effective
Date, evidenced KCPL Common Stock shall be deemed and
treated for all corporate purposes to evidence the
ownership of the number of shares of GPE Common Stock
into which such shares of KCPL Common Stock were
converted pursuant to the provisions of Section 1.8 (a)
and (b) herein.
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(b) Until thereafter surrendered for transfer
or exchange in the ordinary course, each outstanding
stock certificate that, immediately prior to the
Effective Date, evidenced KCPL 3.80% Preferred, KCPL
4.50% Preferred, KCPL 4.20% Preferred or KCPL 4.35%
Preferred, as the case may be, shall be deemed and
treated for all corporate purposes to evidence the
ownership of the number of shares of the GPE 3.80%
Preferred, GPE 4.50% Preferred, GPE 4.20% Preferred or
GPE 4.35% Preferred, as the case may be, into which such
shares of KCPL Preferred were converted pursuant to the
provisions of Sections 1.8 (c), (d), (e) or (f) herein,
as the case may be.
ARTICLE II
ACTIONS TO BE TAKEN IN
CONNECTION WITH THE MERGER
SECTION 2.1 LISTING OF CERTAIN GPE CAPITAL
STOCK. KCPL shall use its reasonable efforts to cause the
GPE Common Stock, GPE 3.80% Preferred, GPE 4.50% Preferred
and GPE 4.35% Preferred to be issued pursuant to the Merger
to be approved for listing on the New York Stock Exchange
(the "NYSE") prior to the Effective Date, subject to official
notice of issuance.
SECTION 2.2 PROCUREMENT OF CUSIP NUMBERS. On or
prior to the Effective Date, GPE will use reasonable efforts
to procure a new CUSIP number for the GPE Common Stock, for
each series of GPE Preferred and for any other securities
which so require new CUSIP numbers in connection with the
Merger.
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SECTION 2.3 APPLICATION FOR REGULATORY
APPROVALS. Prior to the Effective Date, KCPL shall
apply for, and use reasonable efforts to obtain, the
following regulatory approvals and orders (the
"Regulatory Approvals") for the Merger: (1) all necessary
approvals from the Kansas Corporation Commission under
Chapter 66 of the Kansas Statutes Annotated; (2) all
necessary approvals from the Missouri Public Service
Commission under Chapter 393 of the Missouri Revised
Statutes; (3) all necessary approvals from the Federal
Energy Regulatory Commission under the Federal Power Act;
(4) all necessary approvals from the Nuclear Regulatory
Commission under the Atomic Energy Act; and (5) an order
from the Securities and Exchange Commission ("SEC"), in
form and substance reasonably acceptable to KCPL,
authorizing GPE and its subsidiaries to engage in such
transactions subject to SEC jurisdiction under the Public
Utility Holding Company Act of 1935 ("PUHCA") as KCPL
deems necessary for the normal operation of GPE' utility
holding company system following GPE's registration with
the SEC under Section 5 of PUHCA, including, but not
limited to, financing transactions subject to SEC
jurisdiction under Sections 6 and 7 of PUHCA and
acquisitions subject to SEC jurisdiction under Sections 9
and 10 of PUHCA.
ARTICLE III
CONDITIONS OF MERGER
SECTION 3.1 CONDITIONS PRECEDENT. The
obligations of the parties to this Merger Agreement to
consummate the Merger and the transactions contemplated
by this Merger Agreement shall be subject to fulfillment
or waiver by the parties hereto of each of the following
conditions:
(a) Prior to the Effective Date, the GPE Common
Stock, GPE 3.80% Preferred, GPE 4.50% Preferred and GPE
4.35% Preferred to be issued pursuant to the Merger shall
have been approved for listing, upon official notice of
issuance, by the NYSE.
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(b) On the Effective Date, Skadden, Arps,
Slate, Meagher & Flom LLP, special tax counsel to KCPL,
shall render an opinion to the Board of Directors of
KCPL, in form and substance reasonably satisfactory to
KCPL, on the basis of certain facts, representations and
assumptions set forth in such opinion, to the effect that
for federal income tax purposes (i) the Merger will
qualify as an exchange described in Section 351 of the
Internal Revenue Code of 1986, as amended; (ii) no gain
or loss will be recognized by the shareholders of KCPL
upon receipt of the GPE Common Stock, GPE 3.80%
Preferred, GPE 4.50% Preferred, GPE 4.20% Preferred or
GPE 4.35% Preferred as the case may be, in exchange for
their shares of KCPL Common Stock, KCPL 3.80% Preferred,
KCPL 4.50% Preferred, KCPL 4.20% Preferred or KCPL
Preferred 4.35%, as the case may be, pursuant to the
Merger; (iii) the tax basis of the shares of GPE Common
Stock, GPE 3.80% Preferred, GPE 4.50% Preferred, GPE
4.20% Preferred or GPE 4.35% Preferred, as the case may
be, to be received by KCPL's shareholders pursuant to the
Merger Agreement will be the same as their tax basis in
KCPL Common Stock, KCPL 3.80% Preferred, KCPL 4.50%
Preferred, KCPL 4.20% Preferred or KCPL 4.35% Preferred,
as the case may be, converted or exchanged therefor; and
(iv) the holding period of the GPE Common Stock, GPE
3.80% Preferred, GPE 4.50% Preferred, GPE 4.20% Preferred
or GPE 4.35% Preferred, as the case may be, to be
received by each of KCPL's shareholders pursuant to the
Merger Agreement will include the holding period of KCPL
Common Stock, KCPL 3.80% Preferred, KCPL 4.50% Preferred,
KCPL 4.20% Preferred or KCPL 4.35% Preferred, as the case
may be, converted or exchanged therefor, provided that
such KCPL Common Stock, KCPL 3.80% Preferred, KCPL 4.50%
Preferred, KCPL 4.20% Preferred or KCPL 4.35% Preferred,
as the case may be, is held as a capital asset in the
hands of such shareholder at the time of the Merger. In
rendering the opinion, such counsel may require and rely
upon representations contained in certificates of
officers of GPE and KCPL.
(c) Prior to the Effective Date, no order,
statute, rule, regulation, executive order, injunction,
stay, decree, judgment or restraining order shall have
been enacted, entered, promulgated or enforced by any
court or governmental or regulatory authority or
instrumentality which prohibits or makes illegal the
consummation of the Merger or the transactions
contemplated hereby.
(d) The KCPL and GPE shall have taken all
necessary corporate action to ensure that, immediately
prior to the Effective Date, the GPE Charter (including
with respect to authorized capital stock) and the GPE By-
laws shall contain provisions identical to KCPL Charter
and KCPL By-laws, respectively, in effect immediately
prior to the Effective Date (other than with respect to
matters excepted by Section 351.448.1(4) of the MGBCL).
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(e) Prior to the Effective Date, the
Regulatory Approvals shall have been obtained, in form
and substance satisfactory to the parties, and shall be
final and nonappealable.
ARTICLE IV
TERMINATION AND AMENDMENT
SECTION 4.1 TERMINATION. This Merger
Agreement may be terminated and the Merger contemplated
hereby may be abandoned at any time prior to the
Effective Date by action of the Board of Directors of
KCPL, GPE or Merger Sub if it is determined that for any
reason the completion of the transactions provided for
herein would be inadvisable or not in the best interest
of such corporation or its shareholders. In the event of
such termination and abandonment, this Merger Agreement
shall become void and neither KCPL, GPE or Merger Sub nor
their respective shareholders, directors or officers
shall have any liability with respect to such termination
and abandonment.
SECTION 4.2 AMENDMENT. This Merger Agreement
may be supplemented, amended or modified by the mutual
consent of the Boards of Directors of the parties to this
Merger Agreement.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1 GOVERNING LAW. THIS MERGER AGREE
MENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF MISSOURI, REGARDLESS OF
THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE
PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 5.2 BINDING EFFECT AND
ASSIGNMENT. This Merger Agreement shall be binding upon
and inure to the benefit of the parties and to their
respective successors and assigns.
SECTION 5.3 THIRD PARTY BENEFICIARIES.
This Merger Agreement is not intended and shall not be
construed to confer upon any person,
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other than the parties hereto and their respective
successors and assigns, any rights or remedies hereunder.
SECTION 5.4 COUNTERPARTS. This Merger
Agreement may be executed in one or more counterparts,
each of which when executed shall be deemed to be an
original but all of which shall constitute one and the
same agreement.
SECTION 5.5 ENTIRE MERGER AGREEMENT.
This Merger Agreement, including the documents and
instruments referred to herein, constitutes the entire
agreement and supersedes all other prior agreements and
undertakings, both written and oral, among the parties,
or any of them, with respect to the subject matter
hereof.
13
IN WITNESS WHEREOF, GPE, Merger Sub and KCPL
have caused this Merger Agreement to be executed as of
the date first written above by their respective officers
thereunto duly authorized.
KANSAS CITY POWER & LIGHT COMPANY
By: /s/Andrea F. Bielsker
Andrea F. Bielsker
Vice President of Finance, Chief
Financial Officer and Treasurer
GREAT PLAINS ENERGY INCORPORATED
By: /s/Bernard J. Beaudoin
Bernard J. Beaudoin
President
KCPL MERGER SUB INCORPORATED
By: /s/Bernard J. Beaudoin
Bernard J. Beaudoin
President
14
Exhibit 3.i
ARTICLES OF INCORPORATION
OF
GREAT PLAINS ENERGY INCORPORATED
The undersigned natural person(s) of the age of eighteen
years or more for the purpose of forming a corporation under the
General and Business Corporation Law of Missouri adopts the
following Articles of Incorporation:
ARTICLE ONE
The name of this corporation shall be GREAT PLAINS ENERGY
INCORPORATED.
ARTICLE TWO
The address, including street and number, if any, of the
corporation's initial registered office in this state is 1201
Walnut, Kansas City, Jackson County, Missouri 64106, but it
shall have power to transact business anywhere in Missouri, and
also in several states of the United States if and when so
desired under the respective laws thereof regarding foreign
corporations. The name of its initial agent at such address is
Jeanie Sell Latz.
ARTICLE THREE
The amount of authorized capital stock of the Company is One
Hundred Sixty-Two Million Nine Hundred Sixty-Two Thousand
(162,962,000) shares divided into classes as follows:
Three Hundred Ninety Thousand (390,000) shares of
Cumulative Preferred Stock, of the par value of One
Hundred Dollars ($100) each.
One Million Five Hundred Seventy-Two Thousand
(1,572,000) shares of Cumulative No Par Preferred Stock
without par value.
Eleven Million (11,000,000) shares of Preference Stock
without par value.
One Hundred Fifty Million (150,000,000) shares of
Common Stock without par value.
The preferences, qualifications, limitations, restrictions,
and special or relative rights of the Cumulative Preferred Stock,
the Cumulative No Par Preferred Stock, the Preference Stock and
the Common Stock shall be as follows:
1
CUMULATIVE PREFERRED STOCK AND
CUMULATIVE NO PAR PREFERRED STOCK
(i) Series and Variations Between Series of Cumulative
Preferred Stock. The Cumulative Preferred Stock may be divided
into and issued in series. The Board of Directors is hereby
expressly authorized to cause such shares to be issued from time
to time in series, and, by resolution adopted prior to the issue
of shares of a particular series, to fix and determine the
following with respect to such series, as to which matters the
shares of a particular series may vary from those of any or all
other series:
(a) The distinctive serial designation of the
shares of such series;
(b) The dividend rate thereof;
(c) The redemption price or prices and the terms
of redemption (except as fixed in this Division
A);
(d) The terms and amount of any sinking fund for
the purchase or redemption thereof; and
(e) The terms and conditions, if any, under which
said shares may be converted.
Except as the shares of a particular series of Cumulative
Preferred Stock may vary from those of any or all other series in
the foregoing respects, all of the shares of the Cumulative
Preferred Stock, regardless of series, shall in all respects be
equal and shall have the preferences, rights, privileges and
restrictions herein fixed.
(ii) Series and Variations Between Series of Cumulative No
Par Preferred Stock. The Cumulative No Par Preferred Stock may
be divided into and issued in series. The Board of Directors is
hereby expressly authorized to cause such shares to be issued
from time to time in series, and, by resolution adopted prior to
the issue of shares of a particular series, to fix and determine
the following with respect to such series, as to which matters
the shares of a particular series may vary from those of any or
all other series:
(a) The distinctive serial designation of the
shares of such series;
(b) The dividend rate thereof;
(c) The redemption price or prices and the terms
of redemption (except as fixed in this Division
A);
2
(d) The terms and amount of any sinking fund for
the purchase or redemption thereof;
(e) The terms and conditions, if any, under which
said shares may be converted;
(f) The rights of the shares of the series in the
event of involuntary dissolution or liquidation
of the Company;
(g) The consideration to be paid for the shares
of such series, and the portion of such
consideration to be designated as stated value
or capital; and
(h) Any other powers, preferences and relative,
participating, optional or other special rights,
and qualifications, limitations or restrictions
thereof, of the shares of such series, as the
Board of Directors may deem advisable and as shall
not be inconsistent with the provisions of these
Articles of Incorporation.
Except as the shares of a particular series of Cumulative No
Par Preferred Stock may vary from those of any or all other
series in the foregoing respects, all of the shares of the
Cumulative No Par Preferred Stock, regardless of series, shall in
all respects be equal and shall have the preferences, rights,
privileges and restrictions herein fixed.
(iii) Dividends. The holders of shares of each series of
Cumulative Preferred Stock and Cumulative No Par Preferred Stock
shall be entitled to receive, as and when declared payable by the
Board of Directors from funds legally available for the payment
thereof, preferential dividends in lawful money of the United
States of America at the rate per annum fixed and determined as
herein authorized for the shares of such series, but no more,
payable quarterly on the first day of each of the months of
December, March, June and September (the quarterly dividend
payment dates) in each year with respect to the quarterly period
ending on the day prior to each such respective dividend payment
date. Such dividends shall be cumulative with respect to each
share from and including the quarterly dividend payment date next
preceding the date of issue thereof unless (a) the date of issue
be a quarterly dividend payment date, in which case dividends
shall be cumulative from and including the date of issue,
(b) issued during an interval between a record date for the
payment of a quarterly dividend on shares of such series and the
payment date for such dividend, in which case dividends shall be
cumulative from and including such payment date, or (c) the Board
of Directors shall determine that the first dividend with respect
to shares of a particular series issued during an interval
between quarterly dividend payment dates shall be cumulative from
and including a date during such interval, in which event
3
dividends shall be cumulative from and including such date. No
dividends shall be declared on shares of any series of Cumulative
Preferred Stock or Cumulative No Par Preferred Stock in respect
of accumulations for any quarterly dividend period or portion
thereof unless dividends shall likewise be or have been declared
with respect to accumulations on all then outstanding shares of
each other series of Cumulative Preferred Stock and Cumulative No
Par Preferred Stock for the same period or portion thereof; and
the ratios of the dividends declared to dividends accumulated
with respect to any quarterly dividend period on the shares of
each series outstanding shall be identical. Accumulations of
dividends shall not bear interest.
So long as any shares of Cumulative Preferred Stock or
Cumulative No Par Preferred Stock remain outstanding, no dividend
shall be paid or declared, or other distribution made, on shares
of junior stock, nor shall any shares of junior stock be
purchased, redeemed, retired or otherwise acquired for a
consideration (a) unless preferential dividends on outstanding
shares of Cumulative Preferred Stock and Cumulative No Par
Preferred Stock for the current and all past quarterly dividend
periods shall have been paid, or declared and set apart for
payment, provided, however, that the restrictions of this
subparagraph (a) shall not apply to the declaration and payment
of dividends on shares of junior stock if payable solely in
shares of junior stock, nor to the acquisition of any shares of
junior stock through application of proceeds of any shares of
junior stock sold at or about the time of such acquisition, nor
shall such restrictions prevent the transfer of any amount from
surplus to stated capital; and (b) except to the extent of earned
surplus, provided, however, that the restrictions in this
subparagraph (b) shall not apply to any of the acts described in
the proviso set forth in subparagraph (a) above and shall not
apply either to the acquisition of any shares of junior stock
issued after December 1, 1946, to the extent of the proceeds
received for the issue of such shares, or to the payment of any
dividend within 60 days after the date of declaration thereof, if
at said date of declaration said dividend conforms with the
provisions of this subparagraph (b).
(iv) Liquidation Preferences. In the event of voluntary
dissolution or liquidation of the Company, the holders of
outstanding shares of each series of Cumulative Preferred Stock
and Cumulative No Par Preferred Stock shall be entitled to
receive out of the assets of the Company an amount per share
equal to that which such holders would have been entitled to
receive had shares held by them been redeemed (otherwise than
through operation of a sinking fund) on the date fixed for
payment, but no more. In the event of involuntary dissolution or
liquidation of the Company, (a) the holders of shares of
Cumulative Preferred Stock of each series outstanding shall be
entitled to receive out of the assets of the Company $100 per
share, plus preferential dividends at the rate fixed and
4
determined for such series as herein authorized, accrued, and
unpaid to the date fixed for payment, but no more; and (b) the
holders of shares of Cumulative No Par Preferred Stock of each
series shall be entitled to receive out of the assets of the
Company the amount per share fixed and determined for such series
as herein authorized, plus preferential dividends at the rate
fixed and determined for such series as herein authorized,
accrued and unpaid to the date fixed for payment, but no more.
Until payment to the holders of outstanding shares of Cumulative
Preferred Stock and Cumulative No Par Preferred Stock as
aforesaid, or until moneys or other assets sufficient for such
payment shall have been set apart for payment by the Company,
separate and apart from its other funds and assets for the
account of such holders, so as to be and continue to be available
for payment to such holders, no payment or distribution shall be
made to holders of shares of junior stock in connection with or
upon such dissolution or liquidation. If upon any such
dissolution or liquidation the assets of the Company available
for payment and distribution to shareholders are insufficient to
make payment in full, as hereinabove provided, to the holders of
shares of Cumulative Preferred Stock and Cumulative No Par
Preferred Stock, payment shall be made to such holders ratably in
accordance with the payment each such holder would have been
entitled to receive as hereinabove provided.
Neither a consolidation nor merger of the Company with or
into any other corporation, nor a merger of any other corporation
into the Company, nor the purchase or redemption of all or any
part of the outstanding shares of any class or classes of stock
of the Company, nor the sale or transfer of the property and
business of the Company as or substantially as an entirety shall
be construed to be a dissolution or liquidation of the Company
within the meaning of the foregoing provisions.
(v) Redemption and Repurchase. The Company may, at its
option expressed by vote of the Board of Directors, at any time
or from time to time redeem the whole or any part of the
Cumulative Preferred Stock, or of any series thereof, or
Cumulative No Par Preferred Stock, or any series thereof, at the
redemption price or prices at the time in effect, any such
redemption to be on such redemption date and at such place in the
City of Kansas City, State of Missouri, or in the City, County
and State of New York, as shall likewise be determined by vote of
the Board of Directors. Notice of any proposed redemption of
shares of Cumulative Preferred Stock or Cumulative No Par
Preferred Stock shall be given by the Company by mailing a copy
of such notice, not more than 60 or less than 30 days prior to
the redemption date, to the holders of record of the shares to be
redeemed, at their respective addresses then appearing on the
books of the Company; and by publishing such notice at least once
in each week for four successive weeks in a newspaper customarily
published at least on each business day, other than Sundays and
holidays, which is printed in the English language and published
5
and of general circulation in the Borough of Manhattan, City and
State of New York, and in such a newspaper so printed which is
published and of general circulation in the City of Kansas City,
State of Missouri. Publication of such notice shall be commenced
not more than 60 days, and shall be concluded no less than 30
days, prior to the redemption date, but such notice need not
necessarily be published on the same day of each week or in the
same newspaper. In case less than all of the shares of any
series are to be redeemed, the shares so to be redeemed shall be
determined by lot in such manner as may be prescribed by the
Board of Directors, and the certificates evidencing such shares
shall be specified by number in the notice of such redemption.
On the redemption date the Company shall, and at any time within
60 days prior to such redemption date may, deposit in trust, for
the account of the holders of shares of Cumulative Preferred
Stock or Cumulative No Par Preferred Stock to be redeemed, funds
necessary for such redemption with a bank or trust company in
good standing, organized under the laws of the United States of
America or of the State of Missouri or of the State of New York,
doing business in the City of Kansas City, Missouri, or in the
City, County and State of New York and having combined capital,
surplus and undivided profits of at least $5,000,000, which shall
be designated in such notice of redemption. Notice of redemption
having been duly given, or said bank or trust company having been
irrevocably authorized by the Company to give such notice, and
funds necessary for such redemption having been deposited, all as
aforesaid, all shares of Cumulative Preferred Stock or Cumulative
No Par Preferred Stock with respect to which such deposit shall
have been made shall forthwith, whether or not the date fixed for
such redemption shall have occurred or the certificates for such
shares shall have been surrendered for cancellation, be deemed no
longer to be outstanding for any purpose, and all rights with
respect to such shares shall thereupon cease and terminate,
excepting only the right of the holders of the certificates for
such shares to receive, out of the funds so deposited in trust,
on the redemption date (unless an earlier date is fixed by the
Board of Directors), the redemption funds, without interest, to
which they are entitled, and the right to exercise any privilege
of conversion not theretofore expiring, the Company to be
entitled to the return of any funds deposited for redemption of
shares converted pursuant to such privilege. At the expiration
of six years after the redemption date such trust shall
terminate. Any such moneys then remaining on deposit, together
with any interest thereon which may be allowed by the bank or
trust company with which the deposit shall have been made, shall
be paid by it to the Company, free of trust, and thereafter the
holders of the certificates for such shares shall have no claim
against such bank or trust company but only claims as unsecured
creditors against the Company for the amounts payable upon
redemption thereof, without interest. Interest, if any, allowed
by the bank or trust company as aforesaid shall belong to the
Company.
6
Subject to applicable law, the Company may from time to time
purchase or otherwise acquire outstanding shares of Cumulative
Preferred Stock or Cumulative No Par Preferred Stock at a price
per share not exceeding the amount (inclusive of any accrued
dividends) then payable in the event of redemption thereof
otherwise than through operation of a sinking fund, if any.
Any and all shares of Cumulative Preferred Stock and
Cumulative No Par Preferred Stock which shall at any time have
been redeemed or purchased through operation of any sinking fund
with respect thereto, or which shall have been converted into or
exchanged for shares of any other class or classes or other
securities of the Company pursuant to a right of conversion or
exchange reserved in such Cumulative Preferred Stock or
Cumulative No Par Preferred Stock, shall be canceled and shall
not be reissued, and the Company shall, from time to time, take
such corporate action as may be appropriate or necessary to
reduce the authorized number of shares of Cumulative Preferred
Stock or Cumulative No Par Preferred Stock accordingly.
(vi) Voting Rights. So long as any shares of Cumulative
Preferred Stock or Cumulative No Par Preferred Stock are
outstanding, the Company shall not, without the consent (given by
vote in person or by proxy at a meeting called for that purpose)
of the holders of at least two-thirds of the outstanding shares
of Cumulative Preferred Stock and at least two-thirds of the
outstanding shares of Cumulative No Par Preferred Stock, voting
separately as classes:
(a) Increase the amount of Cumulative Preferred
Stock or Cumulative No Par Preferred Stock at the
time authorized;
(b) Create or authorize any shares of senior or
parity stock, or create or authorize any
obligation or security convertible into any such
shares;
(c) Alter or change the preferences, priorities,
special rights or special powers of then
outstanding Cumulative Preferred Stock or Cumula
tive No Par Preferred Stock so as to affect the
holders thereof adversely, provided, however, if
any such alteration or change would adversely
affect the holders of one or more, but not all, of
the series of Cumulative Preferred Stock or
Cumulative No Par Preferred Stock at the time
outstanding, only the consent of holders of
two-thirds of the shares of each series so
affected shall be required; or
(d) Issue, sell or otherwise dispose of shares of
Cumulative Preferred Stock or Cumulative No Par
Preferred Stock or any shares of senior or parity
7
stock, or securities convertible into shares of
Cumulative Preferred Stock, Cumulative No Par
Preferred Stock or senior or parity stock, other
than in exchange for or in connection with the
retirement (by redemption or otherwise) of, not
less than a like number of shares of Cumulative
Preferred Stock, Cumulative No Par Preferred Stock
or senior or parity stock, or securities
convertible into not less than a like number of
such shares, as the case may be, at the time
outstanding, unless
Immediately after such proposed issue, sale
or other disposition, the aggregate of the capital
of the Company applicable to all shares of Common
Stock then to be outstanding (including premium on
all shares of Common Stock) plus earned surplus
and paid in or capital surplus, shall be at least
equal to the involuntary liquidation preference of
all shares of Cumulative Preferred Stock,
Cumulative No Par Preferred Stock and senior or
parity stock then to be outstanding, provided that
until such additional shares or securities, as the
case may be, or the equivalent thereof (in terms
of involuntary liquidating preference) in shares
of Cumulative Preferred Stock, Cumulative No Par
Preferred Stock or senior or parity stock, shall
have been retired, earned surplus of the Company
used to meet the requirements of this clause in
connection with the issuance of additional shares
of Cumulative Preferred Stock, Cumulative No Par
Preferred Stock or senior or parity stock or
securities convertible into either thereof shall
not, after the issue of such shares or securities,
be available for dividends or other distribution
Common Stock (other than dividends payable in
Common Stock), except in an amount equal to the
cash subsequently received by the Company as a
contribution to its Common Stock capital or as
consideration for the issuance of additional
shares of Common Stock; and
The gross income of the Company for a period
of 12 consecutive calendar months within the 15
calendar months immediately preceding the
issuance, sale or other disposition of such
shares, determined in accordance with such system
of accounts as may be prescribed by governmental
authorities having jurisdiction in the premises,
or, in the absence thereof, in accordance with
sound accounting practice (but in any event after
deducting the amount for said period charged by
the Company on its books to depreciation expense
and taxes) to be
8
available for the payment of interest, shall
have been equal to at least one and one-half times
the sum of (x) the interest charges for one year
on all interest bearing indebtedness of the
Company (plus all amortization of debt discount
and expense, and less all amortization of premium
on debt, applicable to the aforesaid 12 months'
period) and (y) the dividend requirements for one
year on all outstanding Cumulative Preferred
Stock, Cumulative No Par Preferred Stock and
senior and parity stock; and for the purpose of
both such computations the shares and any
indebtedness then proposed to be issued shall be
included, and any indebtedness and shares then
proposed to be retired shall be excluded, and in
determining such gross income the Board of
Directors shall make such adjustments, by way of
increase or decrease in such gross income, as
shall in its opinion be necessary to give effect,
for the entire 12 months for which such gross
income is determined, to any acquisition or dispo
sition of property, the income from which can be
separately ascertained.
So long as any Cumulative Preferred Stock or
any Cumulative No Par Preferred Stock is
outstanding, the Company shall not, without the
consent (given by vote in person or by proxy at a
meeting called for that purpose) of the holders of
at least a majority of the total number of
outstanding shares of Cumulative Preferred Stock
and Cumulative No Par Preferred Stock, voting as a
single class:
(e) Merge or consolidate with or into any other
corporation, provided that this provision shall
not apply to a purchase or other acquisition by
the Company of franchises or assets of another
corporation in any manner which does not involve a
statutory merger or consolidation; or
(f) Sell, lease, or exchange all or substantially
all of its property and assets, unless the fair
value of the net assets of the Company, after
completion of such transaction, shall at least
equal the then involuntary liquidation value of
Cumulative Preferred Stock of all series,
Cumulative No Par Preferred Stock of all series,
and all senior or parity stock, then outstanding;
or
(g) Intentionally omitted.
No consent of the holders of Cumulative
Preferred Stock or Cumulative No Par Preferred
9
Stock provided for in paragraph (e) or (f)
above shall be required with respect to any
consolidation, merger, sale, lease or exchange
ordered, approved or permitted by the Securities
and Exchange Commission under the Public Utility
Holding Company Act of 1935, or by any successor
commission or regulatory authority of the United
States having jurisdiction in the premises. No
consent hereinbefore in this subdivision (vi)
provided for shall be required in the case of the
holders of any shares of Cumulative Preferred
Stock or Cumulative No Par Preferred Stock which
are to be redeemed at or prior to the time when an
alteration or change is to take effect, or at or
prior to the time of authorization, issuance, sale
or other disposition of any additional Cumulative
Preferred Stock, Cumulative No Par Preferred Stock
or shares of senior or parity stock or convertible
securities, or a consolidation or merger is to
take effect, as the case may be.
If at any time dividends on any of the
outstanding shares of Cumulative Preferred Stock
or Cumulative No Par Preferred Stock shall be in
default in an amount equivalent to four or more
full quarterly dividends, the holders of
outstanding shares of Cumulative Preferred Stock
and Cumulative No Par Preferred Stock, voting as a
single class, shall be entitled to elect the
smallest number of Directors necessary to consti
tute a majority of the full Board of Directors,
which right shall continue in force and effect
until all arrears of dividends on outstanding
shares of Cumulative Preferred Stock and
Cumulative No Par Preferred Stock shall have been
declared and paid or deposited in trust with a
bank or trust company having the qualifications
set forth in subdivision (v) of this Division A
for payment on or before the next succeeding
dividend payment date. When all such arrears have
been declared and paid or deposited in trust for
payment as aforesaid, such right to elect a
majority of the Board of Directors shall cease and
terminate unless and until the equivalent of four
or more full quarterly dividends shall again be in
default on outstanding shares of Cumulative
Preferred Stock or Cumulative No Par Preferred
Stock. Such right to elect a majority of the
Board of Directors is subject to the following
terms and conditions:
(h) While holders of outstanding shares of Cumulative Preferred
Stock and Cumulative No Par Preferred
10
Stock remain entitled to elect a majority of the
Board of Directors as aforesaid, the payment of
dividends on such stock including dividends in
arrears, shall not be unreasonably withheld if the
financial condition of the Company permits payment
thereof;
(i) Such right to elect a majority of the Board
of Directors may be exercised at any annual
meeting of shareholders, or, within the
limitations herein provided, at a special meeting
of shareholders held for such purpose. Whenever
such right to elect a majority of the Board of
Directors shall vest, on request signed by any
holder of record of shares of Cumulative Preferred
Stock or Cumulative No Par Preferred Stock then
outstanding and delivered to the Company's
principal office not less than 120 days prior to
the date of the annual meeting next following the
date when such right vests, the President or a
Vice-President of the Company shall call a special
meeting of shareholders to be held within 30 days
after receipt of such request for the purpose of
electing a new Board of Directors of which holders
of outstanding shares of Cumulative Preferred
Stock and Cumulative No Par Preferred Stock shall
be entitled to elect the smallest number necessary
to constitute a majority and holders of
outstanding shares otherwise entitled to vote
shall be entitled to elect the remaining
Directors, in each case to serve until the next
annual meeting of shareholders or until their
successors shall be elected and shall qualify;
(j) Whenever, under the terms hereof, holders of
outstanding shares of Cumulative Preferred Stock
and Cumulative No Par Preferred Stock shall be
divested of the right to elect a majority of the
Board of Directors, upon request signed by any
holders of record of shares otherwise entitled to
vote and delivered to the Company at its principal
office not less than 120 days prior to the date
for the annual meeting next following the date of
such divesting, the President or a Vice-President
of the Company shall call a special meeting of the
holders of shares otherwise entitled to vote to be
held within 30 days after receipt of such request
for the purpose of electing a new Board of
Directors to serve until the next annual meeting
or until their respective successors shall be
elected and shall qualify;
11
(k) If, while holders of outstanding shares of
Cumulative Preferred Stock and Cumulative No Par
Preferred Stock are entitled to elect a majority
of the Directors, the holders of shares entitled
as a class to elect certain Directors shall fail
to elect the full number of Directors which they
are entitled to elect, either at an annual meeting
of shareholders or a special meeting thereof held
as in this subdivision (vi) provided, or at an
adjourned session of either thereof held within a
period of 90 days beginning with the date of such
meeting, then after the expiration of such period
holders of outstanding shares of Cumulative
Preferred Stock and Cumulative No Par Preferred
Stock and holders of outstanding shares otherwise
entitled to vote, voting as a single class, shall
be entitled to elect such number of Directors as
shall not have been elected during such period by
holders of outstanding shares of the class or
classes then entitled to elect the same, to serve
until the next annual meeting of shareholders or
until their successors shall be elected and shall
qualify. The term of office of all Directors in
office immediately prior to the date of such
annual or special meeting shall terminate as and
when a full Board of Directors shall have been
elected at such meeting or a later meeting of
shareholders for the election of Directors, or an
adjourned session of either thereof;
(l) At any annual or special meeting of the shareholders or
adjournment thereof, held for the purpose of electing Directors
while the holders of outstanding shares of Cumulative Preferred
Stock and Cumulative No Par Preferred Stock shall be entitled to
elect a majority of the Board of Directors, the presence in
person or by proxy of the holders of a majority of outstanding
shares of Cumulative Preferred Stock and Cumulative No Par
Preferred Stock, counting all such shares as a single class,
shall be necessary to constitute a quorum for the election by
such class of a majority of the Board of Directors and the
presence in person or by proxy of the holders of a majority of
outstanding shares of a class otherwise entitled to vote shall be
necessary to constitute a quorum of such class of shares for the
election of Directors which holders of such class of shares are
then entitled to elect. In case of a failure by the holders of
any class or classes to elect, at such meeting or an adjourned
session held within said period of 90 days, the number of
Directors which they are entitled to
12
elect at such meeting, such meeting shall be
deemed ipso facto to have been adjourned to recon
vene at 11:00 A.M., Central Standard Time, on the
fourth full business day next following the close
of such 90-day period, at which time, or at a
subsequent adjourned session of such meeting, such
number of Directors as shall not have been elected
during such period by holders of outstanding
shares of the class or classes then entitled to
elect the same, may be elected by holders of
outstanding shares of Cumulative Preferred Stock
and Cumulative No Par Preferred Stock and holders
of outstanding shares otherwise entitled to vote,
voting as a single class. Subject to the
preceding provisions of this subdivision (vi), a
majority of the holders of shares of any class or
classes at the time present in person or by proxy
shall have power to adjourn such meeting for the
election of Directors by holders of shares of such
class or classes from time to time without notice
other than announcement at the meeting;
(m) At any election of Directors 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 candi
date, or distribute them among two or more
candidates as such holder shall elect; and
(n) While the holders of outstanding shares of
Cumulative Preferred Stock and Cumulative No Par
Preferred Stock remain entitled to elect a
majority of the Board of Directors, any holder of
record of outstanding shares of Cumulative
Preferred Stock or Cumulative No Par Preferred
Stock shall have the right, during regular
business hours, in person or by a duly authorized
representative, to examine the Company's stock
records of Cumulative Preferred Stock and
Cumulative No Par Preferred Stock for the purpose
of communicating with other holders of shares of
such stock with respect to the exercise of such
right of election, and to make a list of such
holders.
So long as any shares of Cumulative
Preferred Stock and Cumulative No Par Preferred
Stock are outstanding, the right of the Company,
except as otherwise authorized by the consent
(given by vote
13
in person or by proxy at a meeting called for
that purpose) of the holders of at least
two-thirds of the total number of outstanding
shares of Cumulative Preferred Stock and
Cumulative No Par Preferred Stock, voting as a
single class, to pay or declare any dividends on
its junior stock (other than dividends payable in
junior stock) or to make any distribution on, or
to purchase or otherwise acquire for value, any
shares of its junior stock (each and all of such
actions being hereafter embraced collectively in
the term "dividends on its junior stock" and each
thereof being regarded for purposes hereof as a
"dividend"), shall be subject to the following
limitations:
(o) If and so long as the junior stock equity (as
hereinafter defined) at the end of the calendar
month immediately preceding the date on which a
dividend on the junior stock is declared is, or as
a result of such dividend would become less than
20% of total capitalization (as hereinafter
defined), the Company shall not declare dividends
on any of its junior stock in an amount which,
together with all other dividends on its junior
stock declared within the year ending with but
including the date of such dividend declaration,
exceeds 50% of the net income of the Company
available for dividends on its junior stock for
the 12 consecutive calendar months immediately
preceding the month in which such dividend is
declared; and
(p) If and so long as the junior stock equity (as
hereinafter defined) at the end of the calendar
month immediately preceding the date on which a
dividend on its junior stock is declared is, or as
a result of such dividend would become less than
25%, but more than 20% of total capitalization (as
hereinafter defined), the Company shall not
declare such dividend on its junior stock in an
amount which, together with all other dividends on
its junior stock declared within the year ending
with but including the date of such dividend
declaration, exceeds 75% of the net income of the
Company available for dividends on its junior
stock for the 12 consecutive calendar months
immediately preceding the month in which such
dividend is declared; and
(q) Except to the extent permitted by the preceding sub
paragraphs (o) and (p) the Company may not pay
dividends on its junior stock which would reduce
14
the junior stock equity below 25% of total
capitalization. For the purposes of subparagraphs
(d), (o), (p) and (q) of this subdivision (vi):
The total capitalization of the Company shall
be deemed to consist of the sum of (x) the
principal amount of all outstanding indebtedness
of the Company represented by bonds, notes or
other evidences of indebtedness maturing by their
terms one year or more from the date of issue
thereof, (y) the aggregate amount of par or stated
capital represented by all issued and outstanding
capital stock of all classes of the Company having
preference as to dividends or upon liquidation
over its junior stock (including premiums on stock
of such classes), and (z) the junior stock equity
of the Company (as hereinafter defined).
The junior stock equity of the Company shall
be deemed to consist of the sum of the amount of
par or stated capital represented by all issued
and outstanding junior stock, including premiums
on junior stock, and the surplus (including
paid-in or capital surplus) of the Company.
The surplus accounts shall be adjusted to
eliminate the amount, if any, by which the total
(as shown by the Company's books) of amounts
expended by the Company after November 30, 1946,
and up to the end of the latest calendar month
ended prior to the proposed payment of dividends
on its junior stock for maintenance and repairs
to, and of provisions made by the Company during
such period for depreciation of, the mortgaged
property (as defined in the Company's Indenture of
Mortgage and Deed of Trust, dated as of
December 1, 1946) is less than the cumulative
maintenance and replacement requirement for the
period beginning December 1, 1946, and ending at
the end of the latest calendar month concluded
prior to said proposed payment, all as determined
and calculated as though one or more maintenance
and replacement certificates covering the entire
period had been filed pursuant to the Company's
Supplemental Indenture dated as of December 1,
1946, and otherwise in accordance with the
provisions of said Supplemental Indenture.
In computing gross income and net income
available for dividends on the Company's junior
stock for any particular 12 months, operating
expenses, among other things, shall include the
greater of (x) the provision for depreciation of
the
15
mortgaged property (as defined as aforesaid)
as recorded on the Company's books, or, (y) the
amount by which expenditures by the Company during
such period for maintenance and repairs of the
mortgaged property (as defined as aforesaid) as
shown by the Company's books is less than the
maintenance and replacement requirement for such
period, all as determined and calculated as though
a maintenance certificate for such period had been
filed pursuant to said Supplemental Indenture, and
otherwise in accordance with said Supplemental
Indenture.
In addition to the requirements set forth in
the two immediately preceding clauses, net income
available for dividends on the Company's junior
stock and surplus (including paid-in or capital
surplus) shall be determined in accordance with
such system of accounts as may be prescribed by
governmental authorities having jurisdiction in
the premises, or, in the absence thereof, in accor
dance with sound accounting practice.
Except as provided in this subdivision (vi) of this Division
A, and as by statute at the time mandatorily provided, holders of
outstanding shares of Cumulative Preferred Stock and Cumulative
No Par Preferred Stock shall not be entitled to vote; and except
as by statute at the time mandatorily provided, holders of shares
of Cumulative Preferred Stock and Cumulative No Par Preferred
Stock shall not be entitled to receive notice of any meeting of
shareholders at which they are not entitled to vote or consent.
(vii) No Preemptive Rights. No holder of outstanding
shares of Cumulative Preferred Stock or Cumulative No Par
Preferred Stock shall have any preemptive right to subscribe for
or acquire any shares of stock or other securities of any kind
hereafter issued by the Company.
B. PREFERENCE STOCK
(i) Series of Preference Stock. Shares of Preference Stock
may be issued from time to time in one or more series as provided
herein. Each such series shall be designated so as to
distinguish the shares thereof from the shares of all other
series, and shall have such voting powers, full or limited, or no
voting powers, and such designations, preferences and relative,
participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as shall be
stated and expressed in the Articles of Incorporation or any
amendment thereto or in the resolution or resolutions providing
for the issue of such stock adopted by the Board of Directors
pursuant to authority expressly vested in it by the provisions of
this Articles of Incorporation, subject however, to the prior
16
rights and preferences of the Cumulative Preferred Stock and the
Cumulative No Par Preferred Stock with respect to dividends,
liquidation, preferences, redemption and repurchase, and voting
rights as set forth in Division A of this ARTICLE THIRD. Any of
the voting powers, designations, preferences, rights and
qualifications, limitations or restrictions of any series of
Preference Stock may be made dependent upon facts ascertainable
outside these Articles of Incorporation or of any amendment
thereto, or outside the resolution or resolutions providing for
the issue of such stock adopted by the Board of Directors,
provided that the manner in which such facts shall operate upon
the voting powers, designations, preferences, rights and
qualifications, limitations or restrictions of such class of
stock is clearly and expressly set forth in these Articles of
Incorporation or in the resolution or resolutions providing for
the issue of such stock adopted by the Board of Directors. The
shares of Preference Stock of all series shall be of equal rank,
and all shares of any particular series of Preference Stock shall
be identical, except that, if the dividends, if any, thereon are
cumulative, the date or dates from which they shall be cumulative
may differ. The terms of any series of Preference Stock may vary
from the terms of any other series of Preference Stock to the
full extent now or hereafter permitted by the Missouri General
and Business Corporation Law, and the terms of each series shall
be fixed, prior to the issuance thereof, in the manner provided
for herein. Without limiting the generality of the foregoing,
shares of Preference Stock of different series may, subject to
any applicable provisions of law, vary with respect to the
following terms:
(a) The distinctive designation of such series
and the number of shares of such series;
(b) The rate or rates at which shares of such
series shall be entitled to receive dividends, the
conditions upon, and the times of payment of such
dividends, the relationship and preference, if
any, of such dividends to dividends payable on any
other class or classes or any other series of
stock, and whether such dividends shall be
cumulative or noncumulative, and, if cumulative,
the date or dates from which such dividends shall
be cumulative;
(c) The right, if any, to exchange or convert the
shares of such series into shares of any other
class or classes, or of any other series of the
same or any other class or classes of stock of the
Company, and if so convertible or exchangeable,
the conversion price or prices, or the rates of
exchange, and the adjustments, if any, at which
such conversion or exchange may be made;
17
(d) If shares of such series are subject to
redemption, the time or times and the price or
prices at which, at the terms and conditions on
which, such shares shall be redeemable;
(e) The preference of the shares of such series
as to both dividends and assets in the event of
any voluntary or involuntary liquidation or
dissolution or winding up or distribution of
assets of the Company;
(f) The obligation, if any, of the Company to
purchase, redeem or retire shares of such series
and/or maintain a fund for such purposes, and the
amount or amounts to be payable from time to time
for such purpose or into such fund, the number of
shares to be purchased, redeemed or retired, and
the other terms and conditions of any such
obligation;
(g) The voting rights, if any, full or limited,
to be given the shares of such series, including
without limiting the generality of the foregoing,
the right, if any, as a series or in conjunction
with other series or classes, to elect one or more
members of the Board of Directors either generally
or at certain specified times or under certain
circumstances, and restrictions, if any, on
particular corporate acts without a specified vote
or consent of holders of such shares (such as,
among others, restrictions on modifying the terms
of such series of Preference Stock, authorizing or
issuing additional shares of Preference Stock or
creating any additional shares of Preference Stock
or creating any class of stock ranking prior to or
on a parity with the Preference Stock as to
dividends or assets); and
(h) Any other preferences, and relative,
participating, optional or other special rights,
and qualifications, limitations or restrictions
thereof.
(ii) Authority for Issuance Granted to Board of Directors.
Authority is hereby expressly granted to and vested in the Board
of Directors at any time or from time to time to issue the
Preference Stock as Preference Stock of any series, and in
connection with the creation of each such series, so far as not
inconsistent with the provisions of this ARTICLE THREE applicable
to all series of Preference Stock, to fix, prior to the issuance
thereof, by resolution or resolutions providing for the issue of
shares thereof, the authorized number of shares of such series,
which number may be increased, unless otherwise provided by the
18
Board of Directors in creating such series, or decreased, but not
below the number of shares thereof then outstanding, from time to
time by like action of the Board of Directors, the voting powers
of such series and the designations, rights, preferences, and
relative, participating, optional or other special rights, if
any, and the qualifications, limitations or restrictions thereof,
if any, of such series.
C. COMMON STOCK
(i) Dividends. Subject to the limitations in this ARTICLE
THREE set forth, dividends may be paid on the Common Stock out of
any funds legally available for the purpose, when and as declared
by the Board of Directors.
(ii) Liquidation Rights. In the event of any liquidation or
dissolution of the Company, after there shall have been paid to
or set aside for the holders of outstanding shares having
superior liquidation preferences to Common Stock the full
preferential amounts to which they are respectively entitled, the
holders of outstanding shares of Common Stock shall be entitled
to receive pro rata, according to the number of shares held by
each, the remaining assets of the Company available for
distribution.
(iii) Voting Rights. Except as set forth in this
ARTICLE THIRD or as by statute otherwise mandatorily provided,
the holders of the Common Stock shall exclusively possess full
voting powers for the election of Directors and for all other
purposes.
D. GENERAL
(i) Consideration for Shares. Subject to applicable law,
the shares of the Company, now or hereafter authorized, may be
issued for such consideration as may be fixed from time to time
by the Board of Directors. Subject to applicable law and to the
provisions of this ARTICLE THREE, shares of the Company issued
and thereafter acquired by the Company may be disposed of by the
Company for such consideration as may be fixed from time to time
by the Board of Directors.
(ii) Crediting Consideration to Capital. The entire
consideration hereafter received upon the issuance of shares of
Common Stock without par value shall be credited to capital, and
this requirement may not be eliminated or amended without the
affirmative vote or consent of the holders of two-thirds of the
outstanding Common Stock.
E. CERTAIN DEFINITIONS
In this ARTICLE THREE, and in any resolution of the Board of
Directors adopted pursuant to this ARTICLE THIRD establishing a
19
series of Cumulative Preferred Stock, a series of Cumulative No
Par Preferred Stock or a series of Preference Stock, and fixing
the designation, description and terms thereof, the meanings
below assigned shall control:
"Senior stock" shall mean shares of stock of any
class ranking prior to shares of Cumulative Preferred
Stock or Cumulative No Par Preferred Stock as to
dividends or upon dissolution or liquidation;
"Parity stock" shall mean shares of stock of any
class ranking on a parity with, but not prior to,
shares of Cumulative Preferred Stock and Cumulative No
Par Preferred Stock as to dividends or upon dissolution
or liquidation;
"Junior stock" shall mean shares of stock of any
class ranking subordinate to shares of Cumulative
Preferred Stock or Cumulative No Par Preferred Stock as
to dividends and upon dissolution or liquidation; and
Preferential dividends accrued and unpaid on a
share of Cumulative Preferred Stock, Cumulative No Par
Preferred Stock or Preference Stock, to any particular
date shall mean an amount per share at the annual
dividend rate applicable to such share for the period
beginning with the date from and including which
dividends on such share are cumulative and concluding
on the day prior to such particular date, less the
aggregate of all dividends paid with respect to such
share during such period.
ARTICLE FOUR
No holder of outstanding shares of any class shall have any
preemptive right to subscribe for or acquire shares of stock or
any securities of any kind issued by the Corporation.
ARTICLE FIVE
The name and place of residence of each incorporator is as
follows:
Bernard J. Beaudoin
11439 West 105th Street
Overland Park, Kansas 66214
ARTICLE SIX
The number of Directors to constitute the first Board of
Directors shall is ten (10). Thereafter the number of directors
shall be fixed by, or in the manner provided by the By-laws .
20
Any changes in the number will be reported to the Secretary of
State within thirty calendar days of such change.
ARTICLE SEVEN
The duration of the corporation is perpetual.
ARTICLE EIGHT
The corporation is formed for the following purposes:
The acquisition, construction, maintenance and operation of
electric power and heating plant or plants and distribution
systems therefor; the purchase of electrical current and of steam
and of other heating mediums and forms of energy; distribution
and sale thereof; the doing of all things necessary or incident
to carrying on the business aforesaid in the State of Missouri
and elsewhere, and generally the doing of all other things the
law may authorize such a corporation so to do.
ARTICLE NINE
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 NINE
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.
ARTICLE TEN
At any meeting of shareholders, a majority of the out
standing shares entitled to vote represented in person or by
proxy shall constitute a quorum; provided, that less than such
quorum shall have the right successively to adjourn the meeting
to a specified date not longer than 90 days after such
adjournment, and no notice need be given of such adjournment to
shareholders not present at the meeting.
ARTICLE ELEVEN
These Articles of Incorporation may be amended in accordance
with and upon the vote prescribed by the laws of the State of
Missouri; provided, that in no event shall any such amendment be
adopted after the date of the adoption of this ARTICLE ELEVEN
without receiving the affirmative vote of at least a majority of
the outstanding shares of the Company entitled to vote.
21
ARTICLE TWELVE
In addition to any affirmative vote required by these
Articles of Incorporation or By-laws, the affirmative vote of the
holders of at least 80% of the outstanding shares of Common Stock
of the Company entitled to vote shall be required for the
approval or authorization of any Business Combination with an
Interested Shareholder; provided, however, that such 80% voting
requirement shall not be applicable if:
(a) the Business Combination shall have been
approved by a majority of the Continuing
Directors; or
(b) the cash or the Fair Market Value of the
property, securities or other consideration to be
received per share by holders of the Common Stock
in such Business Combination is not less than the
highest per share price paid by or on behalf of
the Interested Shareholder for any shares of
Common Stock during the five-year period preceding
the announcement of such Business Combination.
The following definitions shall apply for purposes of this
ARTICLE TWELVE:
(a) The term "Business Combination" shall mean:
(i) any merger or consolidation involving the
Company or a subsidiary of the Company with or
into an Interested Shareholder; (ii) any sale,
lease, exchange, transfer or other disposition (in
one transaction or a series) of any Substantial
Part of the assets of the Company or a subsidiary
of the Company to or with an Interested
Shareholder; (iii) the issuance of any securities
of the Company or a subsidiary of the Company to
an Interested Shareholder other than the issuance
on a pro rata basis to all holders of shares of
the same class pursuant to a stock split or stock
dividend; (iv) any recapitalization or
reclassification or other transaction that would
have the effect of increasing the proportionate
voting power of an Interested Shareholder; (v) any
liquidation, spinoff, splitup or dissolution of
the Company proposed by or on behalf of an
Interested Shareholder; or (vi) any agreement,
contract, arrangement or understanding providing
for any of the transactions described in this
definition of Business Combination;
(b) The term "Interested Shareholder" shall mean and
include (i) any individual, corporation,
partnership or other person or entity which,
together with its "Affiliates" or "Associates" (as
22
defined on March 1, 1986, in Rule 12b-2 of the
General Rules and Regulations under the Securities
Exchange Act of 1934) "beneficially owns" (as
defined on March 1, 1986, in Rule 13d-3 of the
General Rules and Regulations under the Securities
Exchange Act of 1934) in the aggregate 5% or more
of the outstanding shares of the Common Stock of
the Company, and (ii) any Affiliate or Associate
of any such Interested Shareholder;
(c) The term "Continuing Director" shall mean any
member of the Board of Directors of the Company
who is unaffiliated with the Interested
Shareholder and was a member of the Board of
Directors prior to the time that the Interested
Shareholder became an Interested Shareholder, and
any successor of a Continuing Director if the
successor is unaffiliated with the Interested
Shareholder and is recommended or elected to
succeed the Continuing Director by a majority of
Continuing Directors;
(d) The term "Fair Market Value" shall mean: (i)
in the case of stock, the highest closing sale
price during the 30-day period immediately
preceding the date in question of a share of such
stock on the Composite Tape for New York Stock
Exchange-Listed Stocks, or, if such stock is not
quoted on the Composite Tape, on the New York
Stock Exchange, or, if such stock is not listed on
such Exchange, on the principal United States
securities exchange registered under the
Securities and Exchange Act of 1934 on which such
stock is listed, or, if such stock is not listed
on any such exchange, the highest closing bid
quotation with respect to a share of such stock
during the 30-day period preceding the date in
question on the National Association of Securities
Dealers, Inc. Automated Quotations System or any
similar system then in use, or, if no such
quotations are available, the Fair Market Value on
the date in question of a share of such stock as
determined by a majority of the Continuing
Directors; and (ii) in the case of property other
than cash or stock, the Fair Market Value of such
property on the date in question as determined by
a majority of the Continuing Directors; and
(e) The term "Substantial Part" shall mean 10% or more of the
Fair Market Value of the total assets as reflected on the most
recent balance sheet existing at the time the shareholders of the
Company would be required to approve or authorize
23
the Business Combination involving the assets
constituting any such Substantial Part.
Notwithstanding ARTICLE ELEVEN or any other provisions of
these Articles of Incorporation or the By-laws of the Company
(and not withstanding the fact that a lesser percentage may be
specified by law), this ARTICLE TWELVE may not be altered,
amended or repealed except by the affirmative vote of the holders
of at least 80% or more of the outstanding shares of Common Stock
of the Company entitled to vote.
ARTICLE THIRTEEN
(a) Right to Indemnification. Each person who
was or is made a party or is threatened to be made
a party to any action, suit or proceeding, whether
civil, criminal, administrative or investigative,
by reason of the fact that he or she is or was a
Director or officer of the Company or is or was an
employee of the Company acting within the scope
and course of his or her employment or is or was
serving at the request of the Company as a
Director, officer, employee or agent of another
corporation or of a partnership, joint venture,
trust or other enterprise, including service with
respect to employee benefit plans, shall be
indemnified and held harmless by the Company to
the fullest extent authorized by The Missouri
General and Business Corporation Law, as the same
exists or may hereafter be amended, against all
expense, liability and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid to or to be paid in
settlement) actually and reasonably incurred by
such person in connection therewith. The Company
may in its discretion by action of its Board of
Directors provide indemnification to agents of the
Company as provided for in this ARTICLE THIRTEEN.
Such indemnification shall continue as to a person
who has ceased to be a Director, officer, employee
or agent and shall inure to the benefit of his or
her heirs, executors and administrators.
(b) Rights Not Exclusive. The indemnification and other rights
provided by this ARTICLE THIRTEEN shall not be deemed exclusive
of any other rights to which a person may be entitled under any
applicable law, By-laws of the Company, agreement, vote of
shareholders or disinterested Directors or otherwise, both as to
action in such person's official capacity and as to action in any
other capacity while holding the office of Director or officer,
and the Company is hereby expressly
24
authorized by the shareholders of the Company to
enter into agreements with its Directors and
officers which provide greater indemnification
rights than that generally provided by The
Missouri General and Business Corporation Law;
provided, however, that no such further indemnity
shall indemnify any person from or on account of
such Director's or officer's conduct which was
finally adjudged to have been knowingly
fraudulent, deliberately dishonest or willful
misconduct. Any such agreement providing for
further indemnity entered into pursuant to this
ARTICLE THIRTEEN after the date of approval of
this ARTICLE THIRTEEN by the Company's
shareholders need not be further approved by the
shareholders of the Company in order to be fully
effective and enforceable.
Insurance. The Company may purchase and
maintain insurance on behalf of any person who was
or is a Director, officer, employee or agent of
the Company, or was or is serving at the request
of the Company as a Director, officer, employee or
agent of another Company, partnership, joint
venture, trust or other enterprise against any
liability asserted against or incurred by such
person in any such capacity, or arising out of his
or her status as such, whether or not the Company
would have the power to indemnify such person
against such liability under the provisions of
this ARTICLE THIRTEEN.
Amendment. This ARTICLE THIRTEEN may be
hereafter amended or repealed; however, no
amendment or repeal shall reduce, terminate or
otherwise adversely affect the right of a person
entitled to obtain indemnification or an advance
of expenses with respect to an action, suit or
proceeding that pertains to or arises out of
actions or omissions that occur prior to the later
of (a) the effective date of such amendment or
repeal; (b) the expiration date of such person's
then current term of office with, or service for,
the Company (provided such person has a stated
term of office or service and completes such
term); or (c) the effective date such person
resigns his or her office or terminates his or her
service (provided such person has a stated term of
office or service but resigns prior to the
expiration of such term).
25
IN WITNESS WHEREOF, these Articles of Incorporation have
been signed on February 26, 2001.
By: /s/Bernard J. Beaudoin Bernard J. Beaudoin
Signature Printed Name
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
I, Jacquetta L. Hartman, a Notary Public, do hereby certify
that on February 26, 2001, personally appeared before me
Bernard J. Beaudoin, and being duly sworn by me, acknowledged
that he/she signed as his/her own free act and deed the foregoing
document in the capacity therein set forth and declared that the
statements therein contained are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the
day and year before written.
/s/Jacquetta L. Hartman
(Notarial Seal or Stamp) Notary Public: Jacquetta L. Hartman
My commission expires: April 8, 2004
My County of Commission: Ray
26
EXHIBIT 1
3.80% CUMULATIVE PREFERRED STOCK
(a) Establishment of Series and Designation Thereof. There
shall be and hereby is established a series of Cumulative
Preferred Stock, the distinctive serial designation of the shares
of which shall be, and such shares shall be known as, 3.80%
Cumulative Preferred Stock. Such series shall be a closed series
consisting of One Hundred Thousand (100,000) shares of the
Cumulative Preferred Stock.
(b) Rate of Dividend. The rate per annum for preferential
dividends on the shares of 3.80% Cumulative Preferred Stock shall
be $3.80, which shall be cumulative from and including the date
of issue thereof.
(c) Prices at which Redeemable. The shares of 3.80%
Cumulative Preferred Stock shall be redeemable at any time after
the issue thereof for $103.70 per share plus preferential
dividends at the rate aforesaid accrued and unpaid to the date of
redemption.
(d) No Sinking Fund. There shall be no sinking fund for
the purchase or redemption of shares of 3.80% Cumulative
Preferred Stock.
(e) No Conversion Privilege. The shares of 3.80%
Cumulative Preferred Stock shall not be convertible into other
shares or securities of the Company.
27
EXHIBIT 2
4.50% CUMULATIVE PREFERRED STOCK
(a) Establishment of Series and Designation thereof. There
shall be and hereby is established a second series of Cumulative
Preferred Stock, the distinctive serial designation of the shares
of which shall be, and the shares of which shall be known as,
4.50% Cumulative Preferred Stock. Such series shall be a closed
series consisting of 100,00 shares of the Cumulative Preferred
Stock.
(b) Rate of Dividend. The rate per annum for preferential
dividends on the shares of 4.50% Cumulative Preferred Stock shall
be $4.50 per share, which shall be cumulative from and including
the date of issue thereof.
(c) Prices at which Redeemable. The shares of 4.50%
Cumulative Preferred Stock shall be redeemable at any time after
the issue thereof for $101.00 per share plus preferential
dividends at the rate aforesaid accrued and unpaid to the date of
redemption.
(d) No Sinking Fund. There shall be no sinking fund for
the purchase or redemption of shares of 4.50% Cumulative
Preferred Stock.
(e) No Conversion Privilege. The shares of 4.50%
Cumulative Preferred Stock shall not be convertible into other
shares or securities of the Company.
28
EXHIBIT 3
4.20% CUMULATIVE PREFERRED STOCK
(a) Establishment of Series and Designation thereof. There
shall be and hereby is established a fourth series of Cumulative
Preferred Stock, the distinctive serial designation of the shares
of which shall be, and the shares of which shall be known as,
4.20% Cumulative Preferred Stock. Such series shall be a closed
series consisting of 70,000 shares of the Cumulative Preferred
Stock.
(b) Rate of Dividend. The rate per annum for preferential
dividends on the shares of 4.20% Cumulative Preferred Stock shall
be $4.20 per share, which shall be cumulative from and including
the date of issue thereof.
(c) Prices at which Redeemable. The shares of 4.20%
Cumulative Preferred Stock shall be redeemable at any time after
the issue thereof for $102.00 per share plus preferential
dividends at the rate aforesaid accrued and unpaid to the date of
redemption.
(d) No Sinking Fund. There shall be no sinking fund for
the purchase or redemption of shares of 4.20% Cumulative
Preferred Stock.
(e) No Conversion Privilege. The shares of 4.20%
Cumulative Preferred Stock shall not be convertible into other
shares or securities of the Company.
29
EXHIBIT 4
4.35% CUMULATIVE PREFERRED STOCK
(a) Establishment of Series and Designation thereof. There
shall be and hereby is established a fifth series of Cumulative
Preferred Stock, the distinctive serial designation of the shares
of which shall be, and the shares of which shall be known as,
4.35% Cumulative Preferred Stock. Such series shall be a closed
series consisting of 120,000 shares of the Cumulative Preferred
Stock.
(b) Rate of Dividend. The rate per annum for preferential
dividends on the shares of 4.35% Cumulative Preferred Stock shall
be $4.35 per share, which shall be cumulative from and including
the date of issue thereof.
(c) Prices at which Redeemable. The shares of 4.35%
Cumulative Preferred Stock shall be redeemable at any time after
the issue thereof for $101.00 per share plus preferential
dividends at the rate aforesaid accrued and unpaid to the date of
redemption.
(d) No Sinking Fund. There shall be no sinking fund for
the purchase or redemption of shares of 4.35% Cumulative
Preferred Stock.
(e) No Conversion Privilege. The shares of 4.35%
Cumulative Preferred Stock shall not be convertible into other
shares or securities of the Company.
30
Exhibit 3.ii
GREAT PLAINS ENERGY INCORPORATED
BY-LAWS
MARCH 13, 2001
GREAT PLAINS ENERGY INCORPORATED
BY-LAWS
ARTICLE I
OFFICES
Section 1. The registered office of the Company in the
State of Missouri shall be at 1201 Walnut, in Kansas City,
Jackson County, Missouri.
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 Consolidation 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.
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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 articles of consolidation 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.
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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 consolidation 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 articles of consolidation 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 consolidation, any action required to be taken by
shareholders may be taken without a
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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
(a) specified in the 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 annual meeting by or at the direction
of the Board of Directors (or any duly authorized committee
thereof) or (c) otherwise properly brought before the annual
meeting 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 13 and on the record date for the
determination of shareholders entitled to vote at such annual
meeting and (ii) who complies with the notice procedure set forth
in this Section 13.
In addition to any other applicable requirements, for
business to be properly brought before an annual meeting 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 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.
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
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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.
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 consolidation 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 ten
directors who shall be elected at the annual meeting of the
shareholders. Each director shall be elected to serve until the
next annual meeting of the shareholders and until his successor
shall be elected and qualified. Directors need not be
shareholders.
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.
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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 consolidation 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 corporation,
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
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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 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
corporation. 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.
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
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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.
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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 articles of consolidation 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.
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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
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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.
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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.
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.
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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 consolidation, 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
President 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 President 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 "1922".
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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 articles of consolidation 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.
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