ML20353A363
| ML20353A363 | |
| Person / Time | |
|---|---|
| Site: | Callaway  |
| Issue date: | 02/10/2017 |
| From: | Ameren Missouri, Union Electric Co |
| To: | Office of Nuclear Security and Incident Response |
| Shared Package | |
| ML20353A355 | List: |
| References | |
| ULNRC-06624 | |
| Download: ML20353A363 (24) | |
Text
Enclosure 7 to ULNRC-06624 AMEREN CORPORATION BY LAWS EFFECTIVE 02/10/2017
AMEREN CORPORATION BY-LAWS As Amended Effective February 10, 2017 ARTICLE I Shareholders Section 1 The annual meeting ofthe shareholders ofthe Company shall be held on the fourth Thursday ofApril in each year (or ifsaid day be a legal holiday, then on the next succeeding day not a legal holiday), at the registered office of the Company in the City of St. Louis, State of Missouri, or on such other date and at such other place within or without the state of Missouri as may be stated in the notice ofmeeting, for the purpose ofelecting directors and oftransacting such other business as may properly be brought before the meeting.
Section 2. (a) Special meetings of shareholders may only be called by (1) the Chief Executive Officer or, ifone has not been appointed, by the President, (ii) the Board ofDirectors of the Company (Board) pursuant to a resolution adopted by a majority ofthe total number of
(* directors that the Company would have ifthere were no vacancies, or (iii) the Secretary of the c_) Company (Secretary) pursuant to this Section.
(b) The Secretary shall call a special meeting ofshareholders at the written request(s)
(Request) ofholders ofrecord Owning at least 25% (Percentage) ofthe outstanding shares of the Companys common stock (Shares1), as disclosed in the most recent report filed with the Securities and Exchange Commission before the proposed special meeting. A Request shalt comply with Section 2, be signed and dated by each shareholder requesting the special meeting (including the shareholder(s) on whose behalf a request is being submitted, Requester) and be delivered to the Secretary at the principal executive office ofthe Company. A Request shall include (1) the specific purposes ofthe meeting, (ii) the information described in Section 8(a)(2) of this Article, (iii) an acknowledgment by the Requesters that such Request shall be deemed revoked if such Requesters do not Own at least the Percentage continuously until the meeting and (iv) documentary evidence that the Requester(s) Own at least the Percentage as of the date the Request is delivered. Requester(s) shall promptly provide information requested by the Company.
(c) A special meeting requested by shareholders shall be held on the date and time fixed by the Board in accordance with these By-Laws. At least one Requester must appear or send an authorized agent to present such business at the special meeting.
(d) A special meeting requested by shareholders shall not be held if (1) the requested business is not appropriate for shareholder action, (ii) the Request is received between 90 days before the first anniversary ofthe previous annual meeting and the next annual meeting, (iii) a shareholders meeting that included similar business was held less than 120 days before the
Secretary receives the Request, (iv) the Board calls for a shareholders meeting with similar business to be held within 90 days after the Secretary receives the Request, or (v) the Request was made in violation oflaw. The nomination, election or removal ofdirectors shall be deemed to be similar business with respect to all business involving the nomination, election or removal of directors, changing the size ofthe Board, filling vacancies and creating new directorships.
(e) To determine whether the Percentage has been met, multiple Requests will be considered together oniy ifeach Request identifies the same purposes and matters and such Requests have been delivered to the Secretary within sixty days ofthe earliest delivered Request.
A Request may be revoked by written notification to the Secfetary; ifthe Percentage is not met following such revocation, the Board may cancel the special meeting.
Section 3. Written or printed notice ofeach meeting ofshareholders stating the place, day and hour ofthe meeting and, In case ofa spccia1 meeting, the purpose or purposes for which the meeting is called, shall be delivered or given not less than ten nor more than seventy days before the date ofthe meeting, either personalty or by mail, to each shareholder ofrecord entitled to vote thereat, at his address as it appears, ifat all. on the records ofthe Company. Such further notice shall be given by mail, publication or otherwise as may be required by law. Meetings may be held without notice ifall the shareholders entitled to vote thereat are present or represented at the meeting, or ifnotice is waived by those not present or represented.
$ection4. The holders ofrecord ofa majority ofthe shares ofthe capital stock of the Company issued and outstanding, entitled to vote thereat, present or represented by proxy, shall, except as otherwise provided by law, constitute a quorum at all meetings ofthe shareholders. If at any meeting there be no such quorum, such holders ofa majority ofthe shares so present or represented may successively adjourn the meeting to a specified date not longer than ninety days after such adjournment, without notice other than announcement at the meeting, until such quorum
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shall have been obtained, when any business may be transacted which might have been transacted at the meeting as originally notified. The chairman ofthe meeting or a majority ofshares so represented may adjourn the meeting from time to time, whether or not there is such a quorum.
Shares represented by a proxy whch directs that the shares abstain from voting or that a vote be withheld on a matter, shall be deemed to be represented at the meeting for quorum purposes.
Shares as to which voting instructions are given as to at least one ofthe matters to be voted on shall also be deemed to be so represented. lfthe proxy states how shares will be voted in the absence of instructions by the shareholder, such shares shall be deemed to be represented at the meeting.
Section 5. Meetings ofthe shareholders shall be presided over by the Chief Executive Officer or, ifhe is not present, or ifone has not been appointed, by the Chairman ofthe Board or by the President or, ifneither the Chairman nor the President is present, by such other officer of the Company as shall be selected for such purpose by the Board. The Secretary or, ifhe is not present, an Assistant Secretary of the Company or, if neither the Secretary nor an Assistant Secretary is present, a secretary pro tern to be designated by the presiding officer shall act as secretary of the meeting.
Section 6. At all meetings ofthe shareholders every holder ofrecord ofthe shares of the capital stock ofthe Company, entitled to vote thereat, may vote in person or by proxy. In all matters, including the election of directors, every decision of a majority of shares entitled to vote 2
on the subject matter and represented in person or by proxy at a meeting at which a quorum is present shall be valid as an act ofthe shareholders, unless a larger vote is required by law, the other I provisions ofthese amended By-Laws (these By-Laws), or the articles ofincorporation of the Company (such articles, as they may be amended and/or restated from time to time being referred to herein as the Articles of Incorporation). In tabulating the number ofvotes on such matters, (i) shares represented by a proxy which directs that the shares abstain from voting or that a vote be withheld on a matter shall be deemed to be represented at the meeting as to such matter, (ii) except as provided in (iii) below, shares represented by a proxy as to which voting instructions are not given as to one or more matters to be voted on shall not be deemed to be represented at the meeting for purposes ofthe vote as to such matter or matters, and (iii) a proxy which states how shares will be voted in the absence ofinstructions by the shareholder as to any matter shall be deemed to give voting instructions as to such matter.
ScctiQfl1 At all elections for directors the voting shall be by written ballot. Ifthe object of any meeting be to elect directors or to take a vote ofthe shareholders on any proposition of which notice shall have been given in the notice ofthe meeting, the person presiding at such meeting shall appoint not less than two persons, who are not directors, inspectors to receive and canvass the votes given at such meeting. Any inspector, before he shall enter on the duties ofhis office, shall take and subscribe an oath, in the manner provided by law, that he will execute the duties of Inspector at such meeting with strict impartiality and according to the best ofhis ability. The inspectors shall take charge ofthe polls and after the balloting shall make a certificate ofthe result of the vote taken.
SectionS.
Q (a) (1) Nominations ofpersons for election to the Board and the proposal ofbusiness to be considered by the shareholders may be made at an annual meeting ofshareholders (1) pursuant to the Companys notice ofmeeting, (ii) by or at the direction ofthe Board or (iii) by any shareholder ofthe Company who (a) was a shareholder ofrecord at the time ofgiving of notice provided for in this Section or in Section 9 ofthis Article, as applicable, (b) is entitled to vote at the meeting, and (c) complies with the notice procedures and meets the requirements set forth in this Section or in Section 9 ofthis Article, as applicable, as to such nomination or business; clause (iii) of this paragraph (a)(l) shall be the exclusive means for a shareholder to make nominations or submit other business (other than matters property brought under Rule l4a8 under the Exchange Act and included in the Companys notice ofmeeting) before an annual meeting of shareholders.
(2) (1) Without qualification, for nominations or other business to be properly brought before an annual meeting by a shareholder pursuant to this Section, the shareholder must have given timely notice thereofin writing to the Secretary and such other business must otherwise be a proper matter for shareholder action. To be timely, a shareholders notice shall be delivered to the Secretary at the principal executive offices ofthe Company not later than the close of business on the 60th day nor earlier than the close ofbusiness on the 90th day prior to the first anniversary ofthe preceding years annual meeting except in the case ofcandidates recommended by shareholders ofmore than 5% ofthe Companys outstanding shares ofcommon stock (the Shares) who may also submit recommendations for nominations to the Nominating and Corporate Governance Committee in accordance with the procedures in clause (ii) of this paragraph (a)(2); provided, however, that in the event that the date ofthe annual meeting is more 3
than 30 days before or more than 60 days after such anniversary date, notice by the shareholder to be timely must be so delivered not earlier than the close ofbusiness on the 90th day prior to such annual meeting and not later than the close ofbusiness on the later ofthe 60th day prior to such annual meeting or, ifthc first public announcement ofthe date ofsuch annual meeting is less than 70 days prior to the date ofsuch annual meeting, the 10th day following the day on which public announcement ofthe date of such meeting is first made by the Company. in no event shall the public announcement ofan adjournment ofan annual meeting commence a new time period for the giving ofa shareholders notice as described above. To be in proper form, such shareholders notice (whether given pursuant to this paragraph (a)(2) or paragraph (b) ofthis Secthrn) shall set forth (a) as to each person, ifany, whom the shareholder proposes to nominate for election or re-election as a director, (1) all information relating to such person that is required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal andor for the election ofdirectors in a contested election pursuant to Section 14 ofthe Exchange Act and the rules and regulations promulgated thereunder (including such persons written consent to being named in the proxy statement as a nominee and to serving as a director ifelected) and (ii) a description ofall direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and benefIcial owner, if any, and their respective affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation all information that would be required to be disclosed pursuant to Item 404 promulgated under Regulation S-K ifthe shareholder making the nomination and any beneficial owner on whose behalfthe nomination is made, if any, of any affiliate or associate thereofor person acting in concert therewith, were the registrant for purposes ofsuch provision and the nominee were a director or executive officer ofsuch registrant; (b) as to any business other than the nomination of a director or directors that the shareholder proposes to bring before the meeting (i) a briefdescription ofthe business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business ofsuch shareholder and the beneficial owner, ifany, on whose behalf the proposal is made and (ii) a description ofall agreements, arrangements and understandings between such shareholder and beneficial owner, ifany, and any other person or persons (including their names) in connection with the proposal ofsuch business by such shareholder; and (c) as to the shareholder giving the notice and the beneficial owner, ifany, on whose behaifthe nomination or proposal is made (1) the name and address ofsuch shareholder, as they appear on the Companys books, and of such beneficial owner. (ii) (A) the class or series and number of shares of the Company which are, directly or indirectly, owned beneficially and of record by such shareholder and such beneficial owner, (B) any option, warrant, convertible security, stock appreciation right.
or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series ofshares ofthe Company or with a value derived in whole or in part from the value ofany class or series ofshares ofthe Company, whether or not such instrument of right shall be subject to settlement in the underlying class or series ofcapital stock of the Company or otherwise (a Derivative Instrument) directly or indirectly owned beneficially by such shareholder and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value ofshares ofthe Company, (C) any proxy, contract, arrangement, understanding, or relationship pursuant to which such shareholder has a right to vote any shares ofany security ofthe Company, (D) any short interest in any security ofthe Company 4
(for purposes ofthese By-Laws a person shall be deemed to have a short interest in a security if such person directly or indirectly, through any contract, arrangement, understanding, relationship
( .
I or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value ofthe subject security), (E) any rights to dividends on the shares ofthe Company owned beneficially by such shareholder that are separated or separable from the underlying shares of the Company, (F) any proportionate interest in shares ofthe Company or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such shareholder is a general partner or, directly or indirectly, beneficially owns an interest in a general partner and (G) any performance-related fees (other than an asset-based fee) that such shareholder is entitled to based on any increase or decrease in the value ofshares ofthe Company or Derivative Instruments, if any, as ofthe date of such notice, including without limitation any such interests held by members of such shareholders immediate family sharing the same household (which information in this clause (ii) shall be supplemented by such shareholder and beneficial owner, ifany, not later than I 0 days after the record date for the meeting to disclose such ownership as ofthe record date); and (iii) any other information relating to such shareholder and beneficial owner, if any, that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations ofproxies for, as applicable, the proposal and/or for the election ofdirectors in a contested election pursuant to Section 14 ofthe Exchange Act and the rules and regulations promulgated thereunder; and (d) a signed statement by the nominee agreeing that, ifelected, such nominee will (1) represent all Company shareholders in accordance with applicable law and these By-Laws, and (ii) comply with the Companys Corporate Compliance Policy and the Companys Policy Regarding Nominations of Directors. The Company may require any proposed nominee to furnish such other information as may reasonably be required by the Company to determine the eligibility of such proposed nominee to serve as an independent director of the Company or that c) could be material to a reasonable shareholders understanding ofthe independence, or lack thereof, ofsuch nominee.
(ii) Shareholders or a group ofshareholders who have Owned (as defined in Section 9 ofthis Article) more than 5% ofthe Companys outstanding shares ofcommon stock as of the most recent date for which such number is disclosed by the Company in an annual or quarterly report filed with the SEC under the Exchange Act prior to the date the recommendation was made for at least one year as ofthe date the recommendation was made may recommend nominees for director to the Nominating and Corporate Governance Committee, provided that written notice from the shareholder(s) must be received by the Secretary at the principal executive offices ofthe Company not later than 120 days prior to the anniversary ofthe date the Companys proxy statement was released to shareholders in connection with the previous years annual meeting; provided, however, that in the event that the date ofthe annual meeting has been changed by more than 30 days from the date ofthe preceding years annual meeting, notice by the shareholder must be received by the Secretary not later than the 10th day following the day on which public announcement ofthe date ofsuch meeting is first made by the Company. In no event shall the public announcement ofan adjournment ofan annual meeting commence a new time period for the giving of a shareholders notice as described above. To be in proper form, such shareholders notice shall set forth (a) as to each person whom the shareholder proposes to nominate for election or reelection as a director, (1) all information relating to such person that is required to be disclosed in solicitations ofproxies for election ofdirectors in an election contest, or is otherwise required, in each case pursuant to Section 14 ofthe Exchange Act and the rules and regulations promulgated thereunder (including (y) such persons written consent to being named
( ..
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in the proxy statement as a nominee and to sewing as a director ifelected and (z) the written consent ofthe shareholder(s) recommending the nominee to being identified in the Companys proxy statement) and (ii) a description ofall direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder(s) and beneficial owner(s), ifany, and their respective affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including. without limitation all information that would be required to be disclosed pursuant to Item 404 promulgated under Regulation S-K if the shareholder(s) making the nomination and any beneficial owner(s) on whose behalf the nomination is made, ifany, or any affiliate or associate thereofor person acting in concert therewith, were the registrant for purposes ofsuch provision and the nominee were a director or executive officer ofsuch registrant; (b) as to the shareholder(s) giving the notice and the beneficial owner(s), ifany, on whose behalfthe nomination or proposal is made tO the name and address of such shareholder(s), as they appear on the Companys books, and ofsuch beneficial owner(s),
(ii)(A) the class or series and number ofshares ofthe Company which are, directly or indirectly owned beneficially and of record by such shareholder(s) and such beneficial owner(s) and information with respect to the holding period for such shares, (3) Deriva(ive Instruments directly or indirectly owned beneficially by such shareholder(s) and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value ofshares of the Company, (C) any proxy, contract, arrangement, understanding, or relationship pursuant to which such shareholder(s) has a right to vote any shares of any security of the Company, (D) any short interest in any security ofthe Company (for purposes oftliese By-Laws a person shall be deemed to have a short interest in a security ifsuch person directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value ofthe subject security), (E) any rights to dividends on the shares of the Company owned beneficially by such shareholder(s) that are separated or separable from the underlying shares of the Company, (F) any proportionate interest in shares of the Company or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such shareholder(s) is a general partner or, directly or indirectly, beneficially owns an interest in a general partner and (G) any performance-related fees (other than an asset-based fee) that such shareholder(s) is entitled to based on any increase or decrease in the value ofshares ofthe Company or Derivative Instruments, ifany, as ofthe date ofsuch notice, including without limitation any such interests held by members ofsuch shareholders immediate family sharing the same household (which information shall be supplemented by such shareholder(s) and beneficial owner(s), if any, not later than I 0 days after the record date for the meeting to disclose such ownership as ofthe record date); and (iii) any other Information relating to such shareholder(s) and beneficial owner(s), ifany, that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations ofproxies for, as applicable, the proposal and/or for the election ofdirectors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; and (c) a signed statement by the nominee agreeing that, ifelected, such nominee will (1) represent all Company shareholders in accordance with applicable law and these By-Laws and (ii) comply with the Companys Corporate Compliance Policy and the Companys Policy Regarding Nominations ofDirectors. The Company may require any proposed nominee to furnish such other information as may reasonably be required by the Company to determine the eligibility ofsuch proposed
nominee to serve as an independent director ofthe Company or that could be material to a reasonable shareholders understanding ofthe independence, or lack thereof ofsuch nominee.
(3) Notwithstanding anything in the second sentence ofparagraph (a)(2)(i) of this Section to the contrary, in the event that the number ofdirectors to be elected to the Board is increased and there is no public announcement by the Company naming all ofthe nominees for director or specifying the size ofthe increased Board at least 70 days prior to the first anniversary ofthe preceding years annual meeting, a shareholders notice required by this Section shall also be considered timely, but only with respect to nominees for any new positions created by such increase, ifit shall be delivered to the Secretary at the principal executive offices ofthe Company not later than the close ofbusiness on the 10th day following the day on which such public announcement is first made by the Company.
(b) Only such business shall be conducted at a special meeting ofshareholders as shall have been brought before the meeting pursuant to the Companys notice ofmeeting. Nominations of persons for election to the Board may be made at a special meeting of shareholders (i) Ifi accordance with Section 2 ofthis Article or (ii) ifthe election ofdirectors is included as business to be brought pursuant to the Companys notice ofmeeting (1) by or at the direction ofthe Board or (2) provided that the Board has determined that directors shall be elected at such meeting, by any shareholder ofthe Company who is a shareholder ofrecord at the time ofgiving ofnotice provided for in this Section, who shall be entitled to vote at the meeting and who complies with the notice procedures set forth in this Section. In the event the Company calls a special meeting of shareholders for the purpose of electing one or more directors to the Board, any such shareholder may nominate a person or persons (as the case may be), for election to such position(s) as specified C./
j the Companys notice of meeting, if the shareholders notice required by paragraph (a)(2)(i) of this Section with respect to any nomination shall be delivered to the Secretary at the principal executive offices ofthe Company not earlier than the close ofbusiness on the 90th day prior to the date ofsuch special meeting and not later than the close ofbusiness on the later ofthe 60th day prior to the date of such special meeting or, if the first public announcement of the date of such special meeting is less than 100 days prior to the date of such special meeting, the I 0th day following the day on which public announcement is first made ofthe date of the special meeting and ofthe nominees proposed by the Board to be elected at such meeting. The proposal by shareholders ofother business to be conducted at a special meeting ofshareholders may be made only in accordance with Section 2 ofthis Article. In no event shall the public announcement of an adjournment of a special meeting commence a new time period for the giving of a shareholders notice as described above.
(c) (I) Only such persons who are nominated in accordance with the procedures set forth in this Section or in Section 2 or Section 9 ofthis ArtIcle shall be eligible to serve as directors and only such business shall be conducted at a meeting ofshareholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section and Section 2 of this Article. Except as otherwise provided by law, the Articles oflncorporation or these By-Laws, the chairman ofthe meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section or in Section 9 ofthis Article, as applicable, and, ifany proposed nomination or business is not in compliance with this Section or with Section ofthis Article, as applicable, and, ifany proposed nomination or business is not in compliance C) 7
with this Section or with Section 9 ofthis Article, as applicable, to declare that such defective proposal or nomination shall be disregarded.
(2) For purposes ofthis Section, public announcement shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Company with the Securities and Exchange Commission (the SEC) pursuant to Section 13, 14 or I 5(d) of the Securities Exchange Act of 1 934, as amended (the Exchange Act).
(3) Notwithstanding the foregoing provisions ofthis Section, a shareholder shall also comply with all applicable requirements ofthe Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section and in Section 9 of this Article; provided, however, that any references in these By4aws to the Exchange Act or the rules promulgated thereunder are not intended to and shall not limit the requirements applicable to nominations or proposals as to any other business to be considered pursuant to clause (iii) of paragraph (a)( I ), paragraph (a)(2) and paragraph (b) of this Section or Section 9 ofthis Article.
Nothing in this Section or in Section 9 ofthis Article shall be deemed to affect any rights (A) of shareholders to request inclusion ofproposals in the Companys proxy statement pursuant to Rule I 4a-8 under the Exchange Act or (B) ofthe holders of any series of Preferred Stock to elect directors if and to the extent provided for under law, the Articles of Incorporation or these By-Laws.
Section 9 (a) Whenever the Board solicits proxies with respect to an election ofdirectors at an annual meeting ofshareholders (an Annual Election), subject to the provisions ofthis Section, it shalt include in its proxy statement and on its proxy card for such Annual Election and on any ballot distributed at such Annual Election (such materials collectively, the Proxy Materials), in addition to individuals nominated by the Board or any committee thereof the name, together with (in the case ofsuch proxy statement only) the Required Information (defined below), of any individual nominated in compliance with this Section (each, a Shareholder Nominee) by an Eligible Shareholder (defined below) who expressly elects at the time ofproviding the notice required by this Section (the Notice of Proxy Access Nomination) to have its nominee included in the Proxy Materials pursuant to this Section. To be timely, an Eligible Shareholder seeking to have its nominee included in the Proxy Materials shall deliver the Notice of Proxy Access Nomination to the Secretary at the principal executive offices ofthe Company not later than the close of business on the 1 20th day nor earlier than the close ofbusiness on the I 50th day prior to the anniversary ofthe date the Companys proxy statement was released to shareholders in connection with the previous years annual meeting; provided, however, that in the event that the date ofthe annual meeting has been changed by more than 30 days from the date ofthe preceding years annual meeting, notice by the Eligible Shareholder must be delivered to the Secretary not later than the 10th day following the day on which public announcement ofthe date of such meeting is first made by the Company (the last day on which a Notice ofProxy Access Nomination may be delivered, the Proxy Access Deadline). In no event shall the public announcement of an adjournment ofan annual meeting commence a new time period (or extend the Proxy Access Deadline) for the giving of a Notice of Proxy Access Nomination. The maximum number of Shareholder Nominees nominated by all Eligible Shareholders that will be included in the Proxy 8
Materials with respect to any annual meeting ofshareholders ofthe Company shall not exceed the Permitted Number.
( (b)
For purposes ofthis Article:
(1) The Permitted Number means 20% of the number of seats on the Board to be filled in the Annual Election (rounded down to the nearest whole number but not less than two) as ofthe Proxy Access Deadline. Ifone or more vacancies for any reason occurs on the Board after the Proxy Access Deadline but before the date of the Annual Election, and the Board resolves to reduce the size ofthe Board in connection therewith, the Permitted Number shall be calculated based on the number ofdirectors in office as so reduced. For purposes ofdetermining whether the Permitted Number has been reached, each ofthe following persons shall be counted as one of the Shareholder Nominees: (1) any individual nominated by an Eligible Shareholder pursuant to this Section whom the Board decides to nominate as a nominee ofthe Board, (ii) any director in office as of the Proxy Access Deadline who was previously included in the Proxy Materials as a Shareholder Nominee for any ofthe three preceding annual meetings of shareholders of the Company pursuant to this Section whom the Board decides to renominate for election as a nominee of the Board and (iii) any individual nominated by an Eligible Shareholder pursuant to this Section whose nomination is subsequently withdrawn at or prior to the Annual Election.
(2) An Eligible Shareholder means one or more shareholders ofrecord who Owns and has Owned, or who collectively Own and have collectively Owned, at least the Required Interest for at least the three years (the Minimum Holding Period) preceding the date the Notice of Proxy Access Nomination is delivered to the Secretary in accordance with this Section, that
(,Th
_d continues to Own, or that continues to collectively Own, at least the Required Interest through the date ofthe Annual Election, and that complies with all applicable provisions ofthis Section; provided that the aggregate number of shareholders of rccord and, if and to the extent that a shareholder ofrecord is acting on behalfofone or more beneficial owners, ofsuch beneficial owners, whose stock ownership is counted for the purposes of satisfying the foregoing ownership requirement shall not exceed 2O The following shall be treated as one shareholder of record or beneficial owner, as applicable, ifthe applicable Eligible Shareholder shall provide together with the Notice ofProxy Access Nomination documentation reasonably satisfactory to the Board or its designee that demonstrates compliance with the following criteria: (1) ftinds under common management and investment control, (ii) finds under common management and funded primarily by the same employer or (iii) a group of investment companies (as such term is defined in the Investment Company Act of 1940, as amended); provided that each such fund or investment company otherwise meets the requirements set forth in this Section applicable to each shareholder ofrecord or beneficial owner, as applicable, within a group that constitutes an Eligible Shareholder.
No shareholder ofrecord or beneficial owner shall be permitted to be in more than one group that constitutes an Eligible Shareholder, and ifany shareholder ofrecord or beneficial owner appears as a member ofmore than one such group, it shall be deemed to be a member only ofthe group that Owns the largest number ofshares ofeommon stock ofthe Company as reflected in the Notice of Proxy Access Nomination. An Eligible Shareholder shall in its Notice of Proxy Access Nomination disclose the shares ofcommon stock ofthe Company it is deemed to Own for purposes ofthis Section. In the event that the Eligible Shareholders consists ofa group of shareholders, any and all requirements and obligations for an individual shareholder ofrecord or beneficial owner, as applicable, that are set forth in this Section, including the Minimum Holding 9
Period, shall apply to each member ofsuch group; provided, however, that the Required interest shall apply to the ownership ofthe group in the aggregate.
(3) The Required interest means 3% ofthe outstanding shares ofcommon stock Q
ofthe Company as ofthe most recent date for which such number is disclosed by the Company in an annual or a quarterly report filed with the SEC under the Exchange Act prior to the submission ofthe Required Information.
(4) A person is deemed to Own only those outstanding shares ofthe Companys common stock as to which such person possesses both: (i) the full voting and investment rights pertaining to such shares and (ii) the full economic interest in (including the opportunity for profit from and the risk ofloss on) such shares; provided that the number ofshares calculated in accordance with clauses (1) and (ii) shall not include any shares (A) sold by such person in any transaction that has not been settled or closed, (B) borrowed by such person for any purpose or purchased by such person pursuant to an agreement to resell, or (C) subject to any option, warrant, forward contract, swap, contract ofsale, other derivative or similar agreement entered into by such person, whether any such instrument or agreement is to be settled with shares or with cash based on the notional amount or value ofoutstanding common stock ofthe Company, in any such case which instrument or agreement has, or is intended to have, the purpose or effect of: (x) reducing in any manner, to any extent or at any time in the ftiture, such persons ftill right to vote or direct the voting ofany such shares, and/or (y) hedging, offsetting, or altering to any degree any gain or loss arising from the fill economic ownership ofsuch shares by such person. A person is deemed to Own shares held in the name ofa nominee or other intermediary so long as such person retains the right to instruct how the shares are voted with respect to the election ofdirectors and possesses the full economic interest in the shares. A persons ownership ofshares shall be deemed to (j continue during any period in which such person has delegated any voting power by means of a proxy, power ofattomey, or other similar instrument or arrangement that is revocable at any time by such person. A persons ownership ofshares shall be deemed to continue during any period in which such person has loaned such shares; provided that such person has the power to recall such loaned shares on three business days notice and provides a representation that it (a) will promptly recall such loaned shares upon being notified (I) in the case ofa Request pursuant to Section 2 of this Article, that a special meeting will be held pursuant to such request, (2) in the case of a recommendation pursuant to Section 8(a)(2)(ii) ofthis Article, any ofits recommended persons wil] be nominated by the Board as a nominee ofthe Board or (3) in the case ofa nomination pursuant to this Section, that any of its Shareholder Nominees will be included in the Proxy Materials and (5) will continue to hold such shares through the date of(l) in the case ofa Request pursuant to Section 2 ofthis Article, such special meeting held pursuant to such request or (2) in the case of a nomination pursuant to Section $(a)(2)(ii) ofthis Article or this Section, the Annual Election. The terms Owned, Owning and other variations ofthe word Own shall have correlative meanings. Whether outstanding shares of the Company are Owned for these purposes shall be determined by the Board or its designee acting in good faith.
(5) The Required Information means (1) the information concerning the Shareholder Nominee and the Eligible Shareholder that, as determined by the Company, is required to be disclosed in a proxy statement filed pursuant to the proxy rules ofthe SEC and (ii) if the Eligible Shareholder so elects, the Statement.
0 l0
(6) The Statement means a written statement from the Eligible Shareholder in support ofthe Shareholder Nominee(s) candidacy to be included in the Companys proxy statement, which Statement in order to be so included shall not exceed 500 words and must fully comply with Section 14 ofthe Exchange Act and the rules and regulations promulgated thereunder, including without limitation Rule 14a-9. Notwithstanding anything to the contrary contained in this Section, the Company may omit from the Proxy Materials any information or Statement (or portion thereof) that it determines would violate any applicable law or regulation or that it believes is untrue in any material respect (or omits to state a material fact necessary in order to make the statements made, in light ofthe circumstances under which they are made, not misleading).
(c) Any ElIgible Shareholder submitting more than one Shareholder Nominee for inclusion in the Proxy Materials pursuant to this Section shall rank such Shareholder Nominee based on the order that the Eligible Shareholder desires such Shareholder Nominee to be selected for inclusion in the Proxy Materials in the event that the total number of Shareholder Nominees submitted by Eligible Shareholders pursuant to this Section exceeds the Permitted Number. In the event that the number of Shareholder Nominees submitted by Eligible Shareholders pursuant to this Section exceeds the Permitted Number, the hIghest ranking Shareholder Nominee who meets the requirements ofthis Section from each Eligible Shareholder will be selected for inclusion in the Proxy Materials until the Permitted Number is reached, going in the order ofthe number (from largest to smallest) of shares of common stock of the Company that each Eligible Shareholder disclosed as Owned for purposes ofthis Section in its Notice of Proxy Access Nomination. If the Permitted Number is not reached after the highest ranking Shareholder Nominee who meets the requirements ofthis Section from each Eligible Shareholder has been selected, this process will continue as many times as necessary, following the same order each time, until the Permitted C) Number is reached, (d) Any Eligible Shareholder nominating a person for election to the Board in accordance with this Section shall also deliver the following in writing to the Secretary at the principal executive offices ofthe Company no later than the Proxy Access Deadline:
(1) the information that would be required to be set forth in a shareholders notice of recommendation pursuant to Section 8(a)(2)(ii) of this Article; (2) an acknowledgment by such Eligible Shareholder, and the beneficial owners, if any, on whose behalfthe Notice ofProxy Access Nomination is being submitted, that such Notice ofProxy Access Nomination shall be deemed to be revoked ifsuch Eligible Shareholder does not Own at least the Required Interest at all times between the date on which such Notice of Proxy Access Nomination is delivered to the Secretary and the date ofthe Annual Election; (3) documentary evidence that such Eligible Shareholder Owns at least the Required Interest as ofthe date the Notice of Proxy Access Nomination is delivered to the Secretary, and has Owned continuously for the Minimum Holding Period prior to such date, at least the Required Interest; provided, however, that if such Eligible Shareholder, or any member of the group that together constitutes such Eligible Shareholder, is not the beneficial owner of the shares representing the Required Interest, then to be valid, the Notice of Proxy Access Nomination must also include documentary evidence that the beneficial owner on whose behalfthe Notice of Proxy Access Nomination is being submitted Owns at least the Required Interest as ofthe date on 11
which such Notice ofProxy Access Nomination is delivered to the Secretary, and has Owned continuously for the Minimum Holding Period prior to such date, at least the Required Interest; (4) a copy ofthe Schedule 14N (or any successor form) that has been filed with the SEC as required by Rule 14a-l 8 under the Exchange Act; (5) a representation that such Eligible Shareholder (including each member of any group that together constitutes such Eligible Shareholder), and the beneficial owners, ifany, on whose behalfthe Notice ofProxy Access Nomination is being submitted:
(1) acquired all ofthe shares ofeommon stock ofthe Company that arc held by such person at such time that such representation is being made in the ordinary course of business and not with the intent to change or influence control ofthe Company, including control as such term is defined under applicable securities laws, and does not presently have such intent; (ii) has not engaged and will not engage in any, and has not. and will not be a participant in another persons, solicitation within the meaning ofRule 14a-i(l) under the Exchange Act in support ofthe election ofany individual as a director at the Annual Election other than its Shareholder Nominee or a nominee ofthe Board; (iii) will not use any proxy card other than the Companys proxy card in soliciting shareholders in connection with the election ofa Shareholder Nominee at the Annual Election; and (iv) will provide facts, statements and other information in all communications with the Company and its shareholders that are or will be true and correct in all material respects and do not and will not omit to state a material fact necessary in order to make the statements made, in light ofthc circumstances under which they were made, not misleading; (6) an undertaking that such Eligible Shareholder agrees to:
(1) file any written solicitatIon or other communication wIth the Companys sharehokiers relating to one or more ofthe Companys directors or director nominees or any Shareholder Nominee with the SEC, regardless ofwhether any such filing is required under any rule or regulation or whether any exemption from filing is available for such materials under any rule or regulation; (ii) assume (jointly and severally with all other group members, in the case ofa group member) all liability stemming from any actual or alleged legal or regulatory violation arising out ofcommunications by such Eligible Shareholder, the beneficial owners, ifany, on whose behalf the Notice of Proxy Access Nomination is being submitted, or the Shareholder Nominee nominated by such Eligible Shareholder (such persons collectively, the Applicable Persons) with the shareholders of the Company or out ofthe information that such Applicable Persons provided to the Company, its shareholders or any other person; (iii) indemnify and hold harmless the Company and each ofits directors, officers and employees individually against any liability, damages or any other loss in connection with any threatened or pending action, suit or proceeding, whether legal. administratIve or 12
investigative, against the Company or any ofits directors, officers or employees arising out of any nomination submitted by such Eligible Shareholder pursuant to this Section; and (iv) comply with alt other applicable laws, rules, regulations and lIsting standards with respect to any solicitation in connection with the Annual Election.
(7) an undertaking by each ofthe Applicable Persons that, in the event that any information or communications provided by such Applicable Person ceases to be true and correct in all material respects or omits a material fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading, such Applicable Person shall promptly notify the Secretary of any defect in such previously provided information and of the information that is required to correct any such defect; (8) an undertaking by such Eligible Shareholder, and the beneficial owners, if any, on whose behalfthe Notice ofProxy Access Nomination is being submitted, to provide immediate notice to the Company ifsuch Eligible Shareholder (or such beneficial owners) ceases to own any shares representing the Required Interest prior to the date ofthe Annual Election; and (9) in the case of a group that together constitutes such Eligible Shareholder, the designation by all group members ofone group member that is authorized to act on behalf of all members ofsuch group with respect to the nomination and matters related thereto, including withdrawal ofthe nomination.
In addition, each Eligible Shareholder, and the beneficial owners, ifany, on whose behalf the Notice of Proxy Access Nomination is being submitted, shall promptly provide any other L) information reasonably requested by the Company.
(e) Within the time period specified in this Section for delivering the Notice of Proxy Access Nomination, a Shareholder Nominee must deliver to the Secretary a written representation and agreement that such person:
(1) has read and agrees, if elected, to serve as a director and to adhere to the Companys Corporate Governance Guidelines, the Companys code ofethics and code of business conduct, these By-Laws and any other policies and guidelines of the Company applicable to directors; (2) is not and will not become a party to any agreement, arrangement or understanding with any person or entity (other than the Company) with respect to direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director of the Company that has not been disclosed to the Company; (3) is not and will not become a party to any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such Shareholder Nominee, if elected as a director of the Company, would vote or act on any issue or question as a director; and (4) will provide facts, statements and other information in all communications with the Company and its shareholders that are or will be true and correct in all material respects (and
()
13
shall not omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading).
At the request ofthe Company, a Shareholder Nominee must submit all completed and signed questionnaires required ofdirectors ofthe Company, including those applicable to committee service, within five business days ofreceipt ofsuch questionnaire from the Company.
The Company may request such additional information as necessary to permit the Board to determine ifa Shareholder Nominee is independent under the listing standards ofthe principal U.S.
exchange upon which the common stock ofthe Company is listed, any applicable rules or regulations ofthe SEC and any publicly disclosed standards used by the Board in determining and disclosing independence ofthe Companys directors.
(f) The Company shall not be requIred to include, pursuant to this Section, a Shareholder Nominee in the Proxy Materials for any annual meeting of shareholders:
(I) if the Secretary receives a notice that a shareholder intends to nominate a candidate for director at such annual meeting pursuant to the advance notice requirements for directors set forth in Section 8(a)(2)(i) ofthis Article without such shareholders notice expressly electing to have such director candidate included in the Proxy Materials pursuant to this Section; (2) ifthe Eligible Shareholder (or any member of any group that together constitutes such Eligible Shareholder) who has nominated such Shareholder Nominee, or the beneficial owners, ifany, on whose behalfthe Notice ofProxy Access Nomination is being submitted, is currently engaged in a solicitation or is a participant in another persons solicitation within the meaning ofRule 14a-t(l) under the Exchange Act in support ofthe election ofany individual as a director at such annual meeting other than its Shareholder Nominee or a nominee ofthe Board; (3) who is not independent under the rules and listing standards ofeach principal U.S. exchange upon which the common stock of the Company is listed, any applicable rules or regulations ofthe SEC and any publicly disclosed standards used by the Board in determining and disclosing independence ofthe Companys directors, in each case as determined by the Board in good faith; (4) who is or has been, within the past three years, an officer or director of a competitor as defined for purposes ofSection S ofthe Clayton Antitrust Act of 1914, as amended; (5) who is a director or officer ofany public utility company regulated by the Federal Energy Regulatory Commission; (6) whose election as a member ofthe Eoard would cause the Company to be in violation of these By-Laws, the Articles oflncorporation, the rules and listing standards of any principal U.S. exchange upon which the common stock ofthe Company is listed, or any applicable state or federal law, rule or regulation; (7) who is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) or has been convicted in such a criminal proceeding within the past ten years; 14
(8) who is or has been subject to any event specified in Rule 506(d)(1) of Regulation D under the Securities Act of 1933, as amended; C (9) if the Eligible Shareholder who nominated such Shareholder Nominee, the beneficial owners, ifany, on whose behaifthe Notice ofProxy Access Nomination is being submitted, or such Shareholder Nominee fails to comply with its or their obligations pursuant to this Section; or (10) for which an Eligible Shareholder has withdrawn its nomination or who becomes unwilling or unable to serve on the Board.
(g) Nothing in this Section shall limit the Companys ability to solicit against and include in the Proxy Materials its own statements relating to any Shareholder Nominee.
(h) Notwithstanding anything to the contrary set forth herein, the Board or the chairman of any Annual Election shall declare a nomination by an Eligible Shareholder to be invalid, and such nomination shall be disregarded notwithstanding that proxies in respect of such vote may have been received by the Company, if(1) the Shareholder Nominee nominated by such Eligible Shareholder, such Eligible Shareholder (or any member of any group that together constitutes an Eligible Shareholder), or the beneficial owners, ifany, on whose behalfthe Notice of Proxy Access Nomination is being submitted, shall have breached its or their obligations under this Section, as determined by the Board or such chairman or (2) such Eligible Shareholder (or a qualified representative thereof) does not appear at the Annual Election to present its nomination pursuant to this Section. For purposes ofthis Section, to be considered a qualified representative of the Eligible Shareholder, a person must be a duly authorized officer, manager or partner of such Q shareholder or must be authorized by a writing executed by such shareholder or an electronic transmission delivered by such shareholder to act for such shareholder as proxy at the Annual Election and such person must produce such writing or electronic transmission, or a reliable reproduction ofthe writing or electronic transmission, at the Annual Election. The Board (and any other person or body authorized by the Board) shall have the power and authority to interpret this Section and to make any and all determinations necessary or advisable to apply this Section to any persons, facts or circumstances, including the power to determine (1) whether one or more shareholders qualifies as an Eligible Shareholder, (ii) whether a Notice ofProxy Access Nomination complies with this Section and has otherwise met the requirements ofthis Section, (iii) whether a Shareholder Nominee satisfies the qualifications and requirements in this Section, and (iv) whether any and all requirements ofthis Section have been satisfied. Any such interpretatIon or determination adopted in good faith by the Board (or any other person or body authorized by the Board) shall be binding on all persons, including the Company and its shareholders (including any beneficial owners).
(1) Any Shareholder Nominee who is included in the Proxy Materials for a particular annual meeting ofshareholders but either (1) withdraws from or becomes ineligible or unavailable for election at such annual meeting or (2) does not receive at least 25% ofthe votes cast in favor of such Shareholder Nominees election, will be ineligible to be a Shareholder Nominee pursuant to this Section for the next two annual meetings. For the avoidance ofdoubt, this paragraph (I) shall not prevent any shareholder from nominating any person to the Board pursuant to and in accordance with Section 8 ofthis Article. This Section shall provide the exclusive method for 15
shareholders to include nominees for the Board in the Proxy Materials.
ARTICLE II 0
Directors Section 1 The property and business of the Company shall be controlled and managed by its Board. The number ofdirectors to constitute the Board shall be fifteen; provided, however that such number may be fixed by the Board, from time to time, at not less than a minimum ofthree nor more than a maximum oftwentyone (2 1) (subject to the rights of the holders of shares of Preferred Stock, ifany, as set forth in the Articles ofincorporation). Except as otherwise provided in the Articles oflncorporation, the directors shall hold office until the next annual election and until their successors shall be elected and qualified. A majority ofthe members ofthe Board shall constitute a quorum for the transaction ofbusiness, but ifat any meeting ofthc Board there shall be less than a quorum present, a majority ofthe directors present may adjourn the meeting from time to time, without notice other than announcement at the meeting, until such quorum shall have been obtained, when any business may be transacted which might have been transacted at the original meeting had a quorum been present.
Section 2. Vacancies in the Board, including vacancies created by newly created directorships, shall be filled in the manner provided in the Articles of Incorporation, and, except as otherwise provided therein, the directors so elected shall hold office until their successors shall be elected and qualified.
Section 3. Meetings ofthe Board shall be held at such time and place within or without the State ofMissoun as may from time to time be fixed by resolution ofthe Board, or as may be stated in the notice ofany meeting. Regular meetings ofthe Board shall be held at such time as may from time to time be fixed by resolution ofthe Board, and notice ofsuch meetings need not be given.
Special meetings ofthe Board may be held at any time upon call ofthe ChiefExecutive Officer or, if one has not been appointed, by the President, or by the Executive Committee, ifone shall have been appointed, or by the Lead Director, selected in accordance with the Companys Corporate Governance Guidelines, by oral, telephonic (including via telecopier) or written notice, duly given or sent or mailed to each director not less than two (2) days before any such meeting. The notice of any meeting ofthe Board need not specify the purposes thereof except as may be otherwise required by law. Meetings may be held at any time without notice ifall ofthe directors are present or if those not present waive notice ofthe meeting, in writing.
Sectiç. The Board, by the affirmative vote ofa majority ofthe whole Board may appoint an Executive Committee, to consist of two or more directors as the Board may from time to time determine. The Executive Committee shall have and may exercise to the extent permitted by law, when the Board is not in session, all ofthe powers vested in the Board, except the power to fill vacancies in the Board, the power tolill vacancies in or to change the membership of said Committee, and the power to make or amend By-Laws ofthe Company. The Board shall have the power at any time to fill vacancies in, to change the membership of, or to dissolve, the Executive Committee. The Executive Committee may make rules for the conduct of its business and may appoint such committees and assistants as it shall from time to time deem necessary. A majority of the members ofthe Executive Committee shall constitute a quorum.
16
Section 5. The Board may also appoint one or more other committees to consist of such number of the directors and to have such powers as the Board may from time to time determine.
The Board shall have the power at any time to fill vacancies in, to change the membership of, or to dissolve, any such committee. A majority of any such committee may determine its action and fix the time and place ofits meetings, unless the Board shall otherwise provide.
ARTICLE III Officers Section 1 As soon as is practicable after the election ofdirectors at the annual meeting of shareholders, the Board shall elect one ofits members President ofthe Company, and shall elect a Secretary. The Board may also elect from its members a Chairman ofthe Board (which office may be held by the President) and one or more Vice Chairmen ofthe Board. The Board shall designate either the Chairman, if any, or the President as the Chief Executive Officer of the Company. In addition, the Board may elect one or more Vice Presidents (any one or more of whom may be designated as Senior or Executive Vice Presidents), and a Treasurer, and from time to time may appoint such Assistant Secretaries, Assistant Treasurers and other officers, agents, and employees as it may deem proper. The offices ofSecretary and Treasurer may be held by the same person, and a Vice President ofthe Company may also be either the Secretary or the Treasurer.
Section 2. Between annual elections ofofficers, the Board may effect such changes in Company offices as it deems necessary or proper.
Section 3 Subject to such limitations as the Board may from time to time prescribe, the O officers of the Company shall each have such powers and duties as generally pertain to their respective offices, as well as such powers and duties as from time to time may be conferred by the Board or the Executive Committee. The Treasurer and the Assistant Treasurers may be required to give bond for the faithful discharge oftheir duties, in such sum and ofsuch character as the Board may from time to time prescribe.
ARTICLE IV Indemnification Each person who now is or hereafter becomes a director, officer or employee ofthe Company, or who now is or hereafter becomes a director or officer of another corporation, partnership, joint venture, trust or other enterprise at the request ofthe Company, shall be entitled to indemnification to the extent permitted by law and these By-Laws. Such right ofindemnification shall include, but not be limited to, the following:
Section 1.
(a) The Company shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit, or proceeding, whether civil, criminal, administrative or investigative, other than an action by or in the right ofthe Company, by reason ofthe fact that he is or was a director, officer or employee ofthe Company, or is or was serving at the request of the Company as a director or officer of another corporation, partnership, 17
joint venture, trust or other enterprise, against expenses, including attorneys fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests ofthe Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit, or proceeding byjudgment, order, settlement, conviction, or upon a plea of nob contendere or its equivalent, shall not, ofitself create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests ofthe Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawfifl.
(b) The Company shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Company to procure ajudgment in its favor by reason ofthe fact that he is or was a director, officer or employee ofthe Company, or is or was serving at the request ofthe Company as a director or officer ofanother corporation, partnership,joint venture, trust or other enterprise against expenses, including attorneys fees, and amounts paid in settlement actually and reasonably incurred by him in connection with the defense or settlement ofthe action or suit ifhe acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests ofthe Company, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Company unless and only to the extent that the court in which the action or suit was brought determines upon application that, despite the adjudication ofilability and in view ofall the circumstances ofthe case, the person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
(J (c) The Company shall further indemnify to the maximum extent permitted by law, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit, or proceeding (including appeals), whether civil, criminal, investigative (including private Company investigations), or administrative, including an action by or in the right ofthe Company, by reason ofthe fact that the person is or was a director, officer or employee ofthe Company, or is or was serving at the request ofthe Company as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, from and against any and all expenses incurred by such person, including, but not limited to, attorneys fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding, provided that the Company shall not indemnify any person from or on account ofsuch persons conduct which was finally adjudged to have been knowingly fraudulent, deliberately dishonest or willful misconduct.
(d) To the extent that a director, officer or employee ofthe Company or a person who is or was serving at the request ofthe Company as a director or officer ofanother corporation, partnership, joint venture, trust or other enterprise, has been successful on the merits or otherwise in defense ofany action, suit, or proceeding referred to in this Section or in defense ofany claim, issue or matter therein, he shall be indemnified against expenses, including attorneys fees, actually and reasonably incurred by him in connection with the action suit, or proceeding.
Unless otherwise expressly provided by the Board, in no event shall any person who is or was an 18
agent ofthe Company, or is or was serving at the request ofthe Company as an employee or agent ofanother corporation, partnership, joint venture, trust or enterprise, be entitled to any indemnification by the Company in any action, suit or proceeding, regardless ofthe fact that such person may have been successful on the merits or otherwise in defense of any action, suit or proceeding, or in defense ofany claim, issue or matter therein. The preceding sentence is intended to eliminate any right any such person might otherwise have to be indemnified by the Company pursuant to Section 351 .355.3. ofthe General and Business Corporation Law of Missouri.
(e) Any indemnification under this Section, unless ordered by a court, shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the director, officer or employee is proper in the circumstances because he has met the applicable standard of conduct set forth in this Section. The determination shall be made by the Board by a majority vote of a quorum consisting of directors who were not parties to the action, suit, or proceeding, or ifsuch a quorum is not obtainable, or even ifobtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or by the shareholders.
(f) Where full and complete indemnification is prohibited by law or public policy, any person referred to in subsection (a) above who would otherwise be entitled to indemnification nevertheless shall be entitled to partial indemnification to the extent permitted by law and public policy. Furthermore, where full and complete indemnification is prohibited by law or public policy, any person referred to in this Section who would otherwise be entitled to indemnification nevertheless shall have a right of contribution to the extent permitted by law and public policy in cases where said party is held jointly or concurrently liable with the Company.
Section 2. The indemnification provided by Section 1 ofthis Article shall not be deemed O exclusive ofany other rights to which those seeking indemnification may be entitled under the Articles ofincorporation or these By-Laws or any agreement, vote ofshareholders or disinterested directors or otherwise both as to action in his official capacity and as to action in another capacity while holding such office, and the Company is hereby specifically authorized to provide such indemnification by any agreement, vote of shareholders or disinterested directors or otherwise.
The indemnification shalt continue as to a person who has ceased to be a director, officer or employee entitled to indemnification under this Article and shall inure to the benefit ofthe heirs, executors and administrators ofsuch a person.
Section 3. The Company is authorized to purchase and maintain insurance on behalfof, or provide another method or methods of assuring payment to, any person who is or was a director, officer or employee ofthe Company, or is or was serving at the request ofthe Company as a director or officer of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any capacity, or arising out of his status as such, whether or not the Company would have the power to indemnify him against such liability under the provisions ofthis Article.
Section 4. Expenses incurred by a person who is or was serving as a director or officer of the Company or a person who is or was serving at the request ofthe Company as a director or officer ofanother corporation, partnership, joint venture, trust or other enterprise, in defending a civil or criminal action, suit or proceeding referred to in Section 1 ofthis Article shall be paid by the Company in advance ofthe final disposition ofthe action, suit, or proceeding as shall be 19
authorized by the Board in the specific case upon receipt ofan undertaking by or on behalf of such person to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the Company as may be authorized in this Article. Expenses incurred by a person who is or was serving as an employee ofthe Company in defending a civil or criminal action, suit or proceeding referred to in Section I ofthis Article may be paid by the Company in advance ofthe final disposition ofthe action, suit, or proceeding as may be authorized by the Board in the specific case upon receipt ofan undertaking by or on behalfofsuch employee to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the Company as authorized in this Article.
Section 5. Ifany provision or portion ofthis Article shall be held invalid, illegal or unenforceable for any reason whatsoever, the validity, legality and enforceability ofall other provisions and portions not specifically held to be invalid, illegal or unenforceable, shall not be affected or impaired thereby and shall be construed according to the original intent, to the extent not precluded by applicable law.
Section & For purposes of this Article:
(a) References to the Company include all constituent corporations absorbed in a consolidation or merger as well as the resulting or surviving corporation so that any person who is or was a director, officer or employee of such a constituent corporation or is or was serving at the request ofsuch constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise shall stand in the same position under the provisions ofthis Article with respect to the resulting or surviving corporation as he would ifhe had served the resulting or surviving corporation in the same capacity.
(b) The term other enterprise shall include employee benefit plans; the term fines shall include any excise taxes assessed on a person with respect to an employee benefit plan; and the ten-n serving at the request ofthe Company shalt be established as specified below in this Section 6(b) and shall include any service as a director, officer or employee ofthe Company which imposes duties on, or involves services by, such director, officer or employee with respect to an employee benefit plan, its participants, or beneficiaries; and the word include or includes shall be construed in its expansive sense and not as a limiter; and a person who acted in good faith and in a manner he reasonably believed to be in the interest ofthe participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner not opposed to the best interests ofthe Company as referred to in this Article. For purposes of this Article, serving at the request ofthe Company shall be established solely by (1) express approval by the Nominating and Corporate Governance Committee ofsuch persons service as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, (2) the annual review by the Nominating and Corporate Governance Committee ofa list ofnon-affihiated corporations, partnerships, joint ventures, trusts or other enterprises that Company officers are serving as a director or officer of, so long as the Nominating and Corporate Governance Committee does not notify any such officer within 30 days after receiving such list that such person is not serving at the request ofthe Company or (3) a person serving as a director or officer ofa Company Subsidiary, as hereinafter defined. The term Company Subsidiary shall mean any corporation, partnership, joint venture, trust or other enterprise, whether domestic or foreign, in which the Company has or obtains, directly or indirectly, a proprietary interest ofmore than fifty percent (50%) by reason of 20
stock ownership or otherwise. Upon establishing that a person is serving at the request of the Company as described under (1) (2) and (3) above, such persons service for purposes of this O Article shall begin at the time ofhis initial service as a director or officer ofsuch other corporation, partnership, joint venture, trust or other enterprise. The obligations ofthe Company under this Article to provide indemnification or advancement ofexpenses to a person serving at the request of the Company as a director or officer ofanother entity shall only apply to the extent that such person is not entitled to or does not receive indemnification or advancement ofexpenses from such other entity.
(c) Notwithstanding anything to the contrary contained in these By-Laws or in Section 35 1 .3553 ofthe General and Business Corporation Law ofMissouri, the maximum liability of the Company to any person serving at the request of the Company, at any time for all claims for indemnification and advancement ofexpenses for such person under these By-Laws or applicable law for such service shall for all purposes be limited to $25 million, except as otherwise expressly approved by the Board; provided, however, that the provisions ofthis Section 6(c) shall not be applicable in any respect to a persons service only as a director or officer of a Company Subsidiary.
Section7. This Article may be hereafter amended or repealed; provided, however, that no amendment or repeal shall reduce, terminate or otherwise adversely affect the right of a person who is or was a director, officer or employee to obtain indemnification or advancement of expenses with respect to an action, suit, or proceeding that pertains to or arises out ofactions or omissions that occur prior to the effective date ofsuch amendment or repeal.
0 ARTICLE V Uncertificated Shares and Certificates of Stock Section 1 The interest ofeach shareholder ofany class ofstock ofthe Company shall not be evidenced by certificates for shares and all shares of all classes of stock shall be uncertificated shares; provided, however, that (a) any shares ofstock ofthe Company represented by a certificate shall continue to be represented by such certificate until such certificate is surrendered to the Company and (b) the Company may, at its option but without obligation, issue certificates for some or all ofany shares ofsome or all ofany classes ofstock as determined by the Company from time to time. The shares of stock ofthe Company which are to be evidenced by certificates as provided in this By-Law shall be in such form as the Board may from time to time prescribe and shall be signed by the Chairman, ifany, or the President or a Vice President (including Senior or Executive Vice Presidents) and by the Secretary or Treasurer or an Assistant Secretary or an Assistant Treasurer ofthe Company and sealed with the seal of the Company and shall be countersigned and registered in such manner ifany, as the Board may from time to time prescribe.
Any or all ofthe signatures on the certificate may be facsimile and the seal may be facsimile, engraved or printed. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, the certificate may nevertheless be issued by the Company with the same effect as ifthe person were an officer, transfer agent or registrar at the date of issue. Every holder of uncertificated shares is entitled to receive a statement of holdings as evidence ofshare ownership. Upon the request ofany holder ofuncertificated shares, the 21
Company shall also furnish such information as is required pursuant to Section 35 1 I $0.6. of the General and Business Corporation Law of Missouri.
Section 2. The shares ofstock ofthe Company shall be transferable only on the books of the Company by the holders thereofin person or by duly authorized attorney, upon delivery of an assignment and power oftransfer, duly executed, and with such proofofthe authenticity of the signatures as the Company or its agents may reasonably require, and with respect to any shares represented by a certificate upon surrender for cancellation ofsuch certificate.
Section3. No shares ofstock ofthe Company shall be transferred ifrepresented by a certificate alleged to have been lost, stolen or destroyed, except upon production ofsuch evidence ofsuch loss, theft or destruction, and upon the Company being indemnified to such extent and in such manner as the Board in its discretion may require. No certificate for shares ofstock of the Company shall be issued in place ofany certificate alleged to have been lost, stolen or destroyed, except that upon the request ofthe shareholder the Company may, at its option but without obligation, issue a replacement certificate upon production ofsuch evidence ofsuch loss, theft or destruction, and upon the Company being indemnified to such extent and in such manner as the Board in its discretion may require.
Section 4. All determinations by the Company from time to time as to whether the Company shall at its option issue a certificate for any shares ofany class ofstock as provided in thIs ByLaw shall be made by such officers ofthe Company as may be designated by the Board from time to time, and such determinations as to the issuance ofcertificates may vary as to any shares of any class and need not be uniform as to all shares or all classes.
ARTICLEVI 0 Closing of Stock Transfer Books or Fixing Record Date The Board 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 of payment ofany dIvidend or the date for the allotment ofrights or the date when any change or conversion or exchange ofshares shall go into effect; provided, however. that in lieu ofclosing the stock transfer books as aforesaid, the Board may fix in advance a date, not exceeding seventy days preceding the date ofany meeting ofshareholders, or the date for the payment ofany dividend, or the date for the allotment ofrights, or the date when any change or conversion or exchange ofshares shall go into effect, as a record date for the determination ofthe shareholders entitled to notice of and to vote at, any such meeting, and any adjournment thereof, or entitled to receive payment ofany such dividend, or entitled to any such allotment ofrights, or entitled to exercise the rights in respect of any such change, conversion or exchange ofshares. In such case such shareholders and only such shareholders as shall be shareholders ofrecord on the date ofciosing the stock transfer books or on the record date so fixed shall be entitled to notice of and to vote at, such meeting, and any adjournments thereof, or to receive payment ofsuch dividend, or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer ofany shares on the books ofthe Company after such date ofclosing ofthe transfer books or such record date fixed as aforesaid.
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ARTICLE VII c:D Checks, Notes, etc.
All checks and drafts on the Companys bank accounts and all bills ofexchange and promissory notes, and all acceptances, obligations and other instruments for the payment ofmoney, shall be signed by such officer or officers or agent or agents as shall be thereunto authorized from time to time by the Board. The Board may authorize any such officer or agent to sign and, when the Companys seal is on the instrument, to attest any ofthe foregoing instruments by the use of a facsimile sigtiature, engraved or printed or otherwise affixed thereto. In case any officer or agent who has signed or whose facsimile signature has been placed upon any such instrument for the payment of money shall have ceased to be such officer or agent before such instrument is issued, such instrument may nevertheless be issued by the Company with the same effect as ifsuch officer or agent had not ceased to be such officer or agent at the date of its issue.
ARTICLE VIII Fiscal Year The fiscal year ofthe Company shall begin on the first day ofJanuary in each year and shall end on the thirty-first day ofDecember following until otherwise changed by resolution ofthe Board, and the Board is authorized at any time by resolution to adopt and fix a different fiscal year for the Company.
ARTICLE IX O Corporate Seal The corporate seal shall have inscribed thereon the name ofthe Company and the words Corporate Seal, Missouri.
ARTICLE X Amendments The ByLaws ofthe Company may be made, altered, amended, or repealed by the Board.
ARTICLE XI.
Words used herein denoting a specific gender, shall be construed to include any other gender, as applicable in the context.
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