EXHIBIT 3(c)
12/7/93
BY-LAWS
OF
BANTA CORPORATION
(a Wisconsin corporation)
ARTICLE I. OFFICES
1.01. Principal and Business Offices. The corporation may have such
principal and other business offices, either within or without the State of
Wisconsin, as the Board of Directors may designate or as the business of the
corporation may require from time to time.
1.02. Registered Office. The registered office of the corporation
required by the Wisconsin Business Corporation Law to be maintained in the
State of Wisconsin may be, but need not be, identical with the principal
office in the State of Wisconsin, and the address of the registered office may
be changed from time to time by the Board of Directors. The business office
of the registered agent of the corporation shall be identical to such
registered office.
ARTICLE II. SHAREHOLDERS
2.01. Annual Meeting. The annual meeting of the shareholders of the
corporation (the "Annual Meeting") shall be held on the second Tuesday in the
month of April of each year, at the hour of two (2) o'clock p.m. (local time),
or at such other time and date as may be fixed by or under the authority of
the Board of Directors, for the purpose of electing directors and for the
transaction of such other business as may properly come before the Annual
Meeting in accordance with Section 2.13 of these by-laws. If the day fixed
for the Annual Meeting shall be a legal holiday in the State of Wisconsin,
such meeting shall be held on the next succeeding business day. If the
election of directors shall not be held on the day designated herein, or fixed
as herein provided, for any Annual Meeting, or at any adjournment thereof, the
Board of Directors shall cause the election to be held at a special meeting of
the shareholders (a "Special Meeting") as soon thereafter as conveniently may
be. In fixing a meeting date for any Annual Meeting, the Board of Directors
may consider such factors as it deems relevant within the good faith exercise
of its business judgment.
2.02. Special Meetings.
(a) A Special Meeting may be called only by (i) the Chairman of the
Board, (ii) the President or (iii) the Board of Directors and shall be called
by the Chairman of the Board or the President upon the demand, in accordance
with this Section 2.02, of the holders of record of shares representing at
least 10% of all the votes entitled to be cast on any issue proposed to be
considered at the Special Meeting.
(b) In order that the corporation may determine the shareholders
entitled to demand a Special Meeting, the Board of Directors may fix a record
date to determine the
shareholders entitled to make such a demand (the "Demand Record Date"). The
Demand Record Date shall not precede the date upon which the resolution fixing
the Demand Record Date is adopted by the Board of Directors and shall not be
more than 10 days after the date upon which the resolution fixing the Demand
Record Date is adopted by the Board of Directors. Any shareholder of record
seeking to have shareholders demand a Special Meeting shall, by sending
written notice to the Secretary of the corporation by hand or by certified or
registered mail, return receipt requested, request the Board of Directors to
fix a Demand Record Date. The Board of Directors shall promptly, but in all
events within 10 days after the date on which a valid request to fix a Demand
Record Date is received, adopt a resolution fixing the Demand Record Date and
shall make a public announcement of such Demand Record Date. If no Demand
Record Date has been fixed by the Board of Directors within 10 days after the
date on which such request is received by the Secretary, the Demand Record
Date shall be the 10th day after the first day on which a valid written
request to set a Demand Record Date is received by the Secretary. To be
valid, such written request shall set forth the purpose or purposes for which
the Special Meeting is to be held, shall be signed by one or more shareholders
of record (or their duly authorized proxies or other representatives), shall
bear the date of signature of each such shareholder (or proxy or other
representative) and shall set forth all information about each such
shareholder and about the beneficial owner or owners, if any, on whose behalf
the request is made that would be required to be set forth in a shareholder's
notice described in paragraph (a)(ii) of Section 2.13 of these by-laws.
(c) In order for a shareholder or shareholders to demand a Special
Meeting, a written demand or demands for a Special Meeting by the holders of
record as of the Demand Record Date of shares representing at least 10% of all
the votes entitled to be cast on any issue proposed to be considered at the
Special Meeting must be delivered to the corporation. To be valid, each
written demand by a shareholder for a Special Meeting shall set forth the
specific purpose or purposes for which the Special Meeting is to be held
(which purpose or purposes shall be limited to the purpose or purposes set
forth in the written request to set a Demand Record Date received by the
corporation pursuant to paragraph (b) of this Section 2.02, shall be signed by
one or more persons who as of the Demand Record Date are shareholders of
record (or their duly authorized proxies or other representatives), shall bear
the date of signature of each such shareholder (or proxy or other
representative), and shall set forth the name and address, as they appear in
the corporation's books, of each shareholder signing such demand and the class
or series and number of shares of the corporation which are owned of record
and beneficially by each such shareholder, shall be sent to the Secretary by
hand or by certified or registered mail, return receipt requested, and shall
be received by the Secretary within 70 days after the Demand Record Date.
(d) The corporation shall not be required to call a Special Meeting upon
shareholder demand unless, in addition to the documents required by paragraph
(c) of this Section 2.02, the Secretary receives a written agreement signed by
each Soliciting Shareholder (as defined herein), pursuant to which each
Soliciting Shareholder, jointly and severally, agrees to pay the corporation's
costs of holding the Special Meeting, including the costs of preparing and
mailing proxy materials for the corporation's own solicitation, provided that
if each of the resolutions introduced by any Soliciting Shareholder at such
meeting is adopted, and each of the individuals nominated by or on behalf of
any Soliciting Shareholder for election as director at
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such meeting is elected, then the Soliciting Shareholders shall not be
required to pay such costs. For purposes of this paragraph (d), the following
terms shall have the meanings set forth below:
(i) "Affiliate" of any Person shall mean any Person
controlling, controlled by or under common control with such first
Person.
(ii) "Participant" shall have the meaning assigned to such term
in Rule 14a-11 promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act").
(iii) "Person" shall mean any individual, firm, corporation,
partnership, joint venture, association, trust, unincorporated
organization or other entity.
(iv) "Proxy" shall have the meaning assigned to such term in
Rule 14a-1 promulgated under the Exchange Act.
(v) "Solicitation" shall have the meaning assigned to such
term in Rule 14a-11 promulgated under the Exchange Act.
(vi) "Soliciting Shareholder" shall mean, with respect to any
Special Meeting demanded by a shareholder or shareholders, any of
the following Persons:
(A) if the number of shareholders signing the demand or
demands for a meeting delivered to the corporation pursuant to
paragraph (c) of this Section 2.02 is 10 or fewer, each shareholder
signing any such demand;
(B) if the number of shareholders signing the demand or
demands for a meeting delivered to the corporation pursuant to
paragraph (c) of this Section 2.02 is more than 10, each Person who
either (I) was a Participant in any Solicitation of such demand or
demands or (II) at the time of the delivery to the corporation of
the documents described in paragraph (c) of this Section 2.02, had
engaged or intended to engage in any Solicitation of Proxies for use
at such Special Meeting (other than a Solicitation of Proxies on
behalf of the corporation); or
(C) any Affiliate of a Soliciting Shareholder, if a majority
of the directors then in office determine, reasonably and in good
faith, that such Affiliate should be required to sign the written
notice described in paragraph (c) of this Section 2.02 and/or the
written agreement described in this paragraph (d) in order to
prevent the purposes of this Section 2.02 from being evaded.
(e) Except as provided in the following sentence, any Special
Meeting shall be held at such hour and day as may be designated by whichever
of the Chairman of the Board, the President or the Board of Directors shall
have called such meeting. In the case of any Special Meeting called by the
Chairman of the Board or the President upon the demand of
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shareholders (a "Demand Special Meeting"), such meeting shall be held at such
hour and day as may be designated by the Board of Directors; provided,
however, that the date of any Demand Special Meeting shall be not more than 70
days after the Meeting Record Date (as defined in Section 2.05 of these
by-laws); and provided further that in the event that the directors then in
office fail to designate an hour and date for a Demand Special Meeting within
10 days after the date that valid written demands for such meeting by the
holders of record as of the Demand Record Date of shares representing at least
10% of all the votes entitled to be cast on any issue proposed to be
considered at the Special Meeting are delivered to the corporation (the
"Delivery Date"), then such meeting shall be held at 2:00 p.m. (local time) on
the 100th day after the Delivery Date or, if such 100th day is not a Business
Day (as defined below), on the first preceding Business Day. In fixing a
meeting date for any Special Meeting, the Chairman of the Board, the President
or the Board of Directors may consider such factors as he or it deems relevant
within the good faith exercise of his or its business judgment, including,
without limitation, the nature of the action proposed to be taken, the facts
and circumstances surrounding any demand for such meeting, and any plan of the
Board of Directors to call an Annual Meeting or a Special Meeting for the
conduct of related business.
(f) The corporation may engage nationally or regionally recognized
independent inspectors of elections to act as an agent of the corporation for
the purpose of promptly performing a ministerial review of the validity of any
purported written demand or demands for a Special Meeting received by the
Secretary. For the purpose of permitting the inspectors to perform such
review, no purported demand shall be deemed to have been delivered to the
corporation until the earlier of (i) 5 Business Days following receipt by the
Secretary of such purported demand and (ii) such date as the independent
inspectors certify to the corporation that the valid demands received by the
Secretary represent at least 10% of all the votes entitled to be cast on each
issue proposed to be considered at the Special Meeting. Nothing contained in
this paragraph shall in any way be construed to suggest or imply that the
Board of Directors or any shareholder shall not be entitled to contest the
validity of any demand, whether during or after such 5 Business Day period, or
to take any other action (including, without limitation, the commencement,
prosecution or defense of any litigation with respect thereto).
(g) For purposes of these by-laws, "Business Day" shall mean any
day other than a Saturday, a Sunday or a day on which banking institutions in
the State of Wisconsin are authorized or obligated by law or executive order
to close.
2.03. Place of Meeting. The Board of Directors, the Chairman of
the Board or the President may designate any place, either within or without
the State of Wisconsin, as the place of meeting for any Annual Meeting or for
any Special Meeting, or for any postponement thereof. If no designation is
made, the place of meeting shall be the principal business office of the
corporation in the State of Wisconsin. Any meeting may be adjourned to
reconvene at any place designated by vote of the Board of Directors or by the
Chairman of the Board or the President.
2.04. Notice of Meeting. Written notice stating the place, day
and hour of any Annual Meeting or Special Meeting shall be delivered not less
than 10 (unless a longer period
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is required by the Wisconsin Business Corporation Law) nor more than 70 days
before the date of such meeting, either personally or by mail, by or at the
direction of the Secretary, to each shareholder of record entitled to vote at
such meeting and to other shareholders as may be required by the Wisconsin
Business Corporation Law. In the event of any Demand Special Meeting, such
notice of meeting shall be sent not more than 30 days after the Delivery Date.
If mailed, notice pursuant to this Section 2.04 shall be deemed to be
effective when deposited in the United States mail, addressed to each
shareholder at his or her address as it appears on the stock record books of
the corporation, with postage thereon prepaid. Unless otherwise required by
the Wisconsin Business Corporation Law, a notice of an Annual Meeting need not
include a description of the purpose for which the meeting is called. In the
case of any Special Meeting, (a) the notice of meeting shall describe any
business that the Board of Directors shall have theretofore determined to
bring before the meeting and (b) in the case of a Demand Special Meeting, the
notice of meeting (i) shall describe any business set forth in the statement
of purpose of the demands received by the corporation in accordance with
Section 2.02 of these by-laws and (ii) shall contain all of the information
required in the notice received by the corporation in accordance with Section
2.13(b) of these by-laws. If an Annual Meeting or Special Meeting is
adjourned to a different date, time or place, the corporation shall not be
required to give notice of the new date, time or place if the new date, time
or place is announced at the meeting before adjournment; provided, however,
that if a new Meeting Record Date for an adjourned meeting is or must be
fixed, the corporation shall give notice of the adjourned meeting to persons
who are shareholders as of the new Meeting Record Date.
2.05. Fixing of Record Date. The Board of Directors may fix in
advance a date not less than 10 days and not more than 70 days prior to the
date of any Annual Meeting or Special Meeting as the record date for the
determination of shareholders entitled to notice of, or to vote at, such
meeting (the "Meeting Record Date"). In the case of any Demand Special
Meeting, (i) the Meeting Record Date shall be not later than the 30th day
after the Delivery Date and (ii) if the Board of Directors fails to fix the
Meeting Record Date within 30 days after the Delivery Date, then the close of
business on such 30th day shall be the Meeting Record Date. The shareholders
of record on the Meeting Record Date shall be the shareholders entitled to
notice of and to vote at the meeting. Except as provided by the Wisconsin
Business Corporation Law for a court-ordered adjournment, a determination of
shareholders entitled to notice of and to vote at any Annual Meeting or
Special Meeting is effective for any adjournment of such meeting unless the
Board of Directors fixes a new Meeting Record Date, which it shall do if the
meeting is adjourned to a date more than 120 days after the date fixed for the
original meeting. The Board of Directors may also fix in advance a date as
the record date for the purpose of determining shareholders entitled to take
any other action or determining shareholders for any other purpose. Such
record date shall be not more than 70 days prior to the date on which the
particular action, requiring such determination of shareholders, is to be
taken. The record date for determining shareholders entitled to a
distribution (other than a distribution involving a purchase, redemption or
other acquisition of the corporation's shares) or a share dividend is the date
on which the Board of Directors authorizes the distribution or share dividend,
as the case may be, unless the Board of Directors fixes a different record
date.
2.06. Shareholder Lists. After a Meeting Record Date has been
fixed, the corporation shall prepare a list of the names of all of the
shareholders entitled to notice of the
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meeting. The list shall be arranged by class or series of shares, if any, and
show the address of and number of shares held by each shareholder. Such list
shall be available for inspection by any shareholder, beginning two business
days after notice of the meeting is given for which the list was prepared and
continuing to the date of the meeting, at the corporation's principal office
or at a place identified in the meeting notice in the city where the meeting
will be held. A shareholder or his or her agent may, on written demand,
inspect and, subject to the limitations imposed by the Wisconsin Business
Corporation Law, copy the list, during regular business hours and at his or
her expense, during the period that it is available for inspection pursuant to
this Section 2.06. The corporation shall make the shareholders' list
available at the meeting and any shareholder or his or her agent or attorney
may inspect the list at any time during the meeting or any adjournment
thereof. Refusal or failure to prepare or make available the shareholders'
list shall not affect the validity of any action taken at a meeting of
shareholders.
2.07. Quorum and Voting Requirements; Postponements;
Adjournments.
(a) Shares entitled to vote as a separate voting group may take
action on a matter at any Annual Meeting or Special Meeting only if a quorum
of those shares exists with respect to that matter. If the corporation has
only one class of stock outstanding, such class shall constitute a separate
voting group for purposes of this Section 2.07. Except as otherwise provided
in the Articles of Incorporation, any by-law adopted under authority granted
in the Articles of Incorporation, or the Wisconsin Business Corporation Law, a
majority of the votes entitled to be cast on the matter shall constitute a
quorum of the voting group for action on that matter. Once a share is
represented for any purpose at any Annual Meeting or Special Meeting, other
than for the purpose of objecting to holding the meeting or transacting
business at the meeting, it is considered present for purposes of determining
whether a quorum exists for the remainder of the meeting and for any
adjournment of that meeting unless a new Meeting Record Date is or must be set
for the adjourned meeting. If a quorum exists, except in the case of the
election of directors, action on a matter shall be approved if the votes cast
within the voting group favoring the action exceed the votes cast opposing the
action, unless the Articles of Incorporation, any by-law adopted under
authority granted in the Articles of Incorporation, or the Wisconsin Business
Corporation Law requires a greater number of affirmative votes. Unless
otherwise provided in the Articles of Incorporation, directors shall be
elected by a plurality of the votes cast by the shares entitled to vote in the
election of directors at any Annual Meeting or Special Meeting at which a
quorum is present. For purposes of this Section 2.07(a), "plurality" means
that the individuals with the largest number of votes are elected as directors
up to the maximum number of directors to be chosen at the Annual Meeting or
Special Meeting.
(b) The Board of Directors acting by resolution may postpone and
reschedule any previously scheduled Annual Meeting or Special Meeting;
provided, however, that a Demand Special Meeting shall not be postponed beyond
the 100th day following the Delivery Date. Any Annual Meeting or Special
Meeting may be adjourned from time to time, whether or not there is a quorum,
(i) at any time, upon a resolution of shareholders if the votes cast in favor
of such resolution by the holders of shares of each voting group entitled to
vote on any matter theretofore properly brought before the meeting exceed the
number of votes cast against such resolution by the holders of shares of each
such voting group or (ii) at any time prior to
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the transaction of any business at such meeting, by the Chairman of the Board
or pursuant to resolution of the Board of Directors. No notice of the time
and place of adjourned meetings need be given except as required by the
Wisconsin Business Corporation Law. At any adjourned meeting at which a
quorum shall be present or represented, any business may be transacted which
might have been transacted at the meeting as originally notified.
2.08. Conduct of Meetings. The Chairman of the Board, and in
his absence the President, shall call any Annual Meeting or Special Meeting to
order and shall act as chairman of such meeting. In the absence of the
Chairman of the Board and the President, such duties shall be performed by a
Vice-President in the order provided under Section 4.07, or in their absence,
by any person chosen by the shareholders present. The Secretary of the
corporation shall act as secretary of all Annual Meetings and Special
Meetings, but, in the absence of the Secretary, the presiding officer may
appoint any other person to act as secretary of the meeting.
2.09. Proxies. At any Annual Meeting or Special Meeting, a
shareholder entitled to vote may vote in person or by proxy. A shareholder
may appoint a proxy to vote or otherwise act for the shareholder by signing an
appointment form, either personally or by his or her attorney-in-fact. An
appointment of a proxy is effective when received by the Secretary or other
officer or agent of the corporation authorized to tabulate votes. An
appointment is valid for eleven months from the date of its signing unless a
different period is expressly provided in the appointment form. The Board of
Directors shall have the power and authority to make rules establishing
presumptions as to the validity and sufficiency of proxies.
2.10. Voting of Shares. Each outstanding share shall be
entitled to one vote upon each matter submitted to a vote at any Annual
Meeting or Special Meeting except to the extent that the voting rights of the
shares of any class or classes are enlarged, limited or denied by the Articles
of Incorporation or the Wisconsin Business Corporation Law.
2.11. Acceptance of Instruments Showing Shareholder Action. If
the name signed on a vote, consent, waiver or proxy appointment corresponds to
the name of a shareholder, the corporation, if acting in good faith, may
accept the vote, consent, waiver or proxy appointment and give it effect as
the act of a shareholder. If the name signed on a vote, consent, waiver or
proxy appointment does not correspond to the name of a shareholder, the
corporation, if acting in good faith, may accept the vote, consent, waiver or
proxy appointment and give it effect as the act of the shareholder if any of
the following apply:
(a) The shareholder is an entity and the name signed purports to be
that of an officer or agent of the entity.
(b) The name purports to be that of a personal representative,
administrator, executor, guardian or conservator representing the shareholder
and, if the corporation requests, evidence of fiduciary status acceptable to
the corporation is presented with respect to the vote, consent, waiver or
proxy appointment.
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(c) The name signed purports to be that of a receiver or trustee in
bankruptcy of the shareholder and, if the corporation requests, evidence of
this status acceptable to the corporation is presented with respect to the
vote, consent, waiver or proxy appointment.
(d) The name signed purports to be that of a pledgee, beneficial
owner, or attorney-in-fact of the shareholder and, if the corporation
requests, evidence acceptable to the corporation of the signatory's authority
to sign for the shareholder is presented with respect to the vote, consent,
waiver or proxy appointment.
(e) Two or more persons are the shareholders as co-tenants or
fiduciaries and the name signed purports to be the name of at least one of the
co-owners and the person signing appears to be acting on behalf of all
co-owners.
The corporation may reject a vote, consent, waiver or proxy appointment if the
Secretary or other officer or agent of the corporation who is authorized to
tabulate votes, acting in good faith, has reasonable basis for doubt about the
validity of the signature on it or about the signatory's authority to sign for
the shareholder.
2.12. Waiver of Notice by Shareholders. A shareholder may waive
any notice required by the Wisconsin Business Corporation Law, the Articles of
Incorporation or these by-laws before or after the date and time stated in the
notice. The waiver shall be in writing and signed by the shareholder entitled
to the notice, contain the same information that would have been required in
the notice under applicable provisions of the Wisconsin Business Corporation
Law (except that the time and place of meeting need not be stated) and be
delivered to the corporation for inclusion in the corporate records. A
shareholder's attendance at any Annual Meeting or Special Meeting, in person
or by proxy, waives objection to all of the following: (a) lack of notice or
defective notice of the meeting, unless the shareholder at the beginning of
the meeting or promptly upon arrival objects to holding the meeting or
transacting business at the meeting; and (b) consideration of a particular
matter at the meeting that is not within the purpose described in the meeting
notice, unless the shareholder objects to considering the matter when it is
presented.
2.13. Notice of Shareholder Business and Nomination of
Directors.
(a) Annual Meetings.
(i) Nominations of persons for election to the Board of
Directors of the corporation and the proposal of business to be
considered by the shareholders may be made at an Annual Meeting (A)
pursuant to the corporation's notice of meeting, (B) by or at the
direction of the Board of Directors or (C) by any shareholder of the
corporation who is a shareholder of record at the time of giving of
notice provided for in this by-law and who is entitled to vote at
the meeting and complies with the notice procedures set forth in
this Section 2.13.
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(ii) For nominations or other business to be properly brought
before an Annual Meeting by a shareholder pursuant to clause (C) of
paragraph (a)(i) of this Section 2.13, the shareholder must have
given timely notice thereof in writing to the Secretary of the
corporation. To be timely, a shareholder's notice shall be received
by the Secretary of the corporation at the principal executive
offices of the corporation not less than 60 days nor more than 90
days prior to the second Tuesday in the month of April; provided,
however, that in the event that the date of the Annual Meeting is
advanced by more than 30 days or delayed by more than 60 days from
the second Tuesday in the month of April, notice by the shareholder
to be timely must be so received not earlier than the 90th day prior
to the date of such Annual Meeting and not later than the close of
business on the later of (x) the 60th day prior to such Annual
Meeting and (y) the 10th day following the day on which public
announcement of the date of such meeting is first made. Such
shareholder's notice shall be signed by the shareholder of record
who intends to make the nomination or introduce the other business
(or his duly authorized proxy or other representative), shall bear
the date of signature of such shareholder (or proxy or other
representative) and shall set forth: (A) the name and address, as
they appear on this corporation's books, of such shareholder and the
beneficial owner or owners, if any, on whose behalf the nomination
or proposal is made; (B) the class and number of shares of the
corporation which are beneficially owned by such shareholder or
beneficial owner or owners; (C) a representation that such
shareholder is a holder of record of shares of the corporation
entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to make the nomination or introduce the
other business specified in the notice; (D) in the case of any
proposed nomination for election or re-election as a director, (I)
the name and residence address of the person or persons to be
nominated, (II) a description of all arrangements or understandings
between such shareholder or beneficial owner or owners and each
nominee and any other person or persons (naming such person or
persons) pursuant to which the nomination is to be made by such
shareholder, (III) such other information regarding each nominee
proposed by such shareholder as would be required to be disclosed in
solicitations of proxies for elections of directors, or would be
otherwise required to be disclosed, in each case pursuant to
Regulation 14A under the Exchange Act, including any information
that would be required to be included in a proxy statement filed
pursuant to Regulation 14A had the nominee been nominated by the
Board of Directors and (IV) the written consent of each nominee to
be named in a proxy statement and to serve as a director of the
corporation if so elected; and (E) in the case of any other business
that such shareholder proposes to bring before the meeting, (I) a
brief description of the business desired to be brought before the
meeting and, if such business includes a proposal to amend these
by-laws, the language of the proposed amendment, (II) such
shareholder's and beneficial owner's or owners' reasons for
conducting such business at the meeting and (III) any material
interest in such business of such shareholder and beneficial owner
or owners.
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(iii) Notwithstanding anything in the second sentence of
paragraph (a)(ii) of this Section 2.13 to the contrary, in the event
that the number of directors to be elected to the Board of Directors
of the corporation is increased and there is no public announcement
naming all of the nominees for director or specifying the size of
the increased Board of Directors made by the corporation at least 70
days prior to the second Tuesday in the month of April, a
shareholder's notice required by this Section 2.13 shall also be
considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be received by the
Secretary at the principal executive offices of the corporation not
later than the close of business on the 10th day following the day
on which such public announcement is first made by the corporation.
(b) Special Meetings. Only such business shall be conducted at a
Special Meeting as shall have been described in the notice of meeting sent to
shareholders pursuant to Section 2.04 of these by-laws. Nominations of
persons for election to the Board of Directors may be made at a Special
Meeting at which directors are to be elected pursuant to such notice of
meeting (i) by or at the direction of the Board of Directors or (ii) by any
shareholder of the corporation who (A) is a shareholder of record at the time
of giving of such notice of meeting, (B) is entitled to vote at the meeting
and (C) complies with the notice procedures set forth in this Section 2.13.
Any shareholder desiring to nominate persons for election to the Board of
Directors at such a Special Meeting shall cause a written notice to be
received by the Secretary of the corporation at the principal executive
offices of the corporation not earlier than 90 days prior to such Special
Meeting and not later than the close of business on the later of (x) the 60th
day prior to such Special Meeting and (y) the 10th day following the day on
which public announcement is first made of the date of such Special Meeting
and of the nominees proposed by the Board of Directors to be elected at such
meeting. Such written notice shall be signed by the shareholder of record who
intends to make the nomination (or his duly authorized proxy or other
representative), shall bear the date of signature of such shareholder (or
proxy or other representative) and shall set forth: (A) the name and address,
as they appear on the corporation's books, of such shareholder and the
beneficial owner or owners, if any, on whose behalf the nomination is made;
(B) the class and number of shares of the corporation which are beneficially
owned by such shareholder or beneficial owner or owners; (C) a representation
that such shareholder is a holder of record of shares of the corporation
entitled to vote at such meeting and intends to appear in person or by proxy
at the meeting to make the nomination specified in the notice; (D) the name
and residence address of the person or persons to be nominated; (E) a
description of all arrangements or understandings between such shareholder or
beneficial owner or owners and each nominee and any other person or persons
(naming such person or persons) pursuant to which the nomination is to be made
by such shareholder; (F) such other information regarding each nominee
proposed by such shareholder as would be required to be disclosed in
solicitations of proxies for elections of directors, or would be otherwise
required to be disclosed, in each case pursuant to Regulation 14A under the
Exchange Act, including any information that would be required to be included
in a proxy statement filed pursuant to Regulation 14A had the nominee been
nominated by the Board of Directors; and (G) the written consent of each
nominee to be named in a proxy statement and to serve as a director of the
corporation if so elected.
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(c) General.
(i) Only persons who are nominated in accordance with the
procedures set forth in this Section 2.13 shall be eligible to serve
as directors. Only such business shall be conducted at an Annual
Meeting or Special Meeting as shall have been brought before such
meeting in accordance with the procedures set forth in this Section
2.13. The chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be
brought before the meeting was made in accordance with the
procedures set forth in this Section 2.13 and, if any proposed
nomination or business is not in compliance with this Section 2.13,
to declare that such defective proposal shall be disregarded.
(ii) For purposes of this Section 2.13, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news service
or in a document publicly filed by the corporation with the
Securities and Exchange Commission pursuant to Section 13, 14 or
15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this Section
2.13, a shareholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section
2.13. Nothing in this Section 2.13 shall be deemed to limit the
corporation's obligation to include shareholder proposals in its
proxy statement if such inclusion is required by Rule 14a-8 under
the Exchange Act.
ARTICLE III. BOARD OF DIRECTORS
3.01. General Powers and Number. All corporate powers shall
be exercised by or under the authority of, and the business and affairs of the
corporation shall be managed under the direction of, its Board of Directors.
The number of directors of the corporation shall be ten (10).
3.02. Tenure and Qualifications. Each director shall hold
office until the next annual meeting of shareholders and until his successor
shall have been elected and qualified, or until there is a decrease in the
number of directors which takes effect after the expiration of his term, or
until his prior death, resignation or removal. A director may be removed by
the shareholders only at a meeting called for the purpose of removing the
director, and the meeting notice shall state that the purpose, or one of the
purposes, of the meeting is removal of the director. A director may be
removed from office but only for cause (as defined herein) if the number of
votes cast to remove the director exceeds the number of votes cast not to
remove him; provided, however, that, if the Board of Directors, by resolution,
shall have recommended removal of a director, then the shareholders may remove
such director without cause by the vote referred to above. As used herein,
"cause" shall exist only if the director whose removal is proposed has been
convicted of a felony by a court of competent jurisdiction, where such
conviction is no longer subject to direct appeal, or has been adjudged liable
for actions or
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omissions in the performance of his duty to the corporation in a matter which
has had a materially adverse effect on the business of the corporation, where
such adjudication is no longer subject to appeal. A director may resign at
any time by delivering written notice which complies with the Wisconsin
Business Corporation Law to the Chairman of the Board or to the corporation.
A director's resignation is effective when the notice is delivered unless the
notice specifies a later effective date. Directors need not be residents of
the State of Wisconsin but must be shareholders of the corporation.
3.03. Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this by-law immediately
after the Annual Meeting, and each adjourned session thereof. The place of
such regular meeting shall be the same as the place of the Annual Meeting
which precedes it, or such other suitable place as may be announced at such
Annual Meeting. The Board of Directors may provide, by resolution, the time
and place, either within or without the State of Wisconsin, for the holding of
additional regular meetings without other notice than such resolution.
3.04. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the Chairman of the Board, the
President or any three directors. The Chairman of the Board or the President
may fix any place, either within or without the State of Wisconsin, as the
place for holding any special meeting of the Board of Directors, and if no
other place is fixed the place of meeting shall be the principal business
office of the corporation in the State of Wisconsin.
3.05. Notice; Waiver. Notice of each meeting of the Board of
Directors (unless otherwise provided in or pursuant to Section 3.03) shall be
given by written notice delivered or communicated in person, by telegram,
facsimile or other form of wire or wireless communication, or by mail or
private carrier, to each director at his business address or at such other
address as such director shall have designated in writing filed with the
Secretary, in each case not less than 48 hours prior to the time of the
meeting. If mailed, such notice shall be deemed to be effective when
deposited in the United States mail so addressed, with postage thereon
prepaid. If notice be given by telegram, such notice shall be deemed to be
effective when the telegram is delivered to the telegraph company. If notice
is given by private carrier, such notice shall be deemed to be effective when
the notice is delivered to the private carrier. Whenever any notice whatever
is required to be given to any director of the corporation under the Articles
of Incorporation or these by-laws or any provision of the Wisconsin Business
Corporation Law, a waiver thereof in writing, signed at any time, whether
before or after the time of meeting, by the director entitled to such notice,
shall be deemed equivalent to the giving of such notice. The corporation
shall retain any such waiver as part of the permanent corporate records. A
director's attendance at or participation in a meeting waives any required
notice to him of the meeting unless the director at the beginning of the
meeting or promptly upon his arrival objects to holding the meeting or
transacting business at the meeting and does not thereafter vote for or assent
to action taken at the meeting. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the Board of Directors need
be specified in the notice or waiver of notice of such meeting.
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3.06. Quorum. Except as otherwise provided by the Wisconsin
Business Corporation Law or by the Articles of Incorporation or these by-laws,
a majority of the number of directors set forth in Section 3.01 shall
constitute a quorum for the transaction of business at any meeting of the
Board of Directors, but a majority of the directors present (though less than
such quorum) may adjourn the meeting from time to time without further notice.
3.07. Manner of Acting. 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, unless the act of a greater number is required by
the Wisconsin Business Corporation Law or by the Articles of Incorporation or
these by-laws.
3.08. Conduct of Meetings. The Chairman of the Board, and in
his absence, the President, or a Vice-President in the order provided under
Section 4.07, and in their absence, any director chosen by the directors
present, shall call meetings of the Board of Directors to order and shall act
as chairman of the meeting. The Secretary of the corporation shall act as
secretary of all meetings of the Board of Directors, but in the absence of the
Secretary, the presiding officer may appoint any Assistant Secretary or any
director or other person present to act as secretary of the meeting. Minutes
of any regular or special meeting of the Board of Directors shall be prepared
and distributed to each director.
3.09. Vacancies. Except as provided below, any vacancy
occurring in the Board of Directors, including a vacancy resulting from an
increase in the number of directors, may be filled by any of the following:
(a) the shareholders; (b) the Board of Directors; or (c) if the directors
remaining in office constitute fewer than a quorum of the Board of Directors,
the directors, by the affirmative vote of a majority of all directors
remaining in office. If the vacant office was held by a director elected by a
voting group of shareholders, only the holders of shares of that voting group
may vote to fill the vacancy if it is filled by the shareholders, and only the
remaining directors elected by that voting group may vote to fill the vacancy
if it is filled by the directors. A vacancy that will occur at a specific
later date, because of a resignation effective at a later date or otherwise,
may be filled before the vacancy occurs, but the new director may not take
office until the vacancy occurs.
3.10. Compensation. The Board of Directors, by affirmative vote
of a majority of the directors then in office, and irrespective of any
personal interest of any of its members, may establish reasonable compensation
of all directors for services to the corporation as directors, officers or
otherwise, or may delegate such authority to an appropriate committee. The
Board of Directors also shall have authority to provide for or to delegate
authority to an appropriate committee to provide for reasonable pensions,
disability or death benefits, and other benefits or payments, to directors,
officers and employees to the corporation.
3.11. Presumption of Assent. A director of the corporation who
is present at a meeting of the Board of Directors or a committee thereof of
which he is a member at which action on any corporate matter is taken shall be
presumed to have assented to the action taken unless any of the following
occurs: (a) the director objects at the beginning of the meeting or promptly
upon his arrival to holding the meeting or transacting business at the
meeting; (b) the director dissents or abstains from an action taken and
minutes of the meeting are prepared that
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show the director's dissent or abstention from the action taken; (c) the
director delivers written notice that complies with the Wisconsin Business
Corporation Law of his dissent or abstention to the presiding officer of the
meeting before its adjournment or to the corporation immediately after
adjournment of the meeting; or (d) the director dissents or abstains from an
action taken, minutes of the meeting are prepared that fail to show the
director's dissent or abstention from the action taken, and the director
delivers to the corporation a written notice of that failure that complies
with the Wisconsin Business Corporation Law promptly after receiving the
minutes. Such right to dissent or abstain shall not apply to a director who
voted in favor of such action.
3.12. Committees. The Board of Directors by resolution adopted
by the affirmative vote of a majority of the number of directors set forth in
Section 3.01 may create one or more committees, appoint members of the Board
of Directors to serve on the committees and designate other members of the
Board of Directors to serve as alternates. Each committee shall have two or
more members who shall, unless otherwise provided by the Board of Directors,
serve at the pleasure of the Board of Directors. A committee may be
authorized to exercise the authority of the Board of Directors, except that a
committee may not do any of the following: (a) authorize distributions; (b)
approve or propose to shareholders action that the Wisconsin Business
Corporation Law requires to be approved by shareholders; (c) fill vacancies on
the Board of Directors or, unless the Board of Directors provides by
resolution that vacancies on a committee shall be filled by the affirmative
vote of the remaining committee members, on any Board committee; (d) amend the
corporation's Articles of Incorporation; (e) adopt, amend or repeal by-laws;
(f) approve a plan of merger not requiring shareholder approval; (g) authorize
or approve reacquisition of shares, except according to a formula or method
prescribed by the Board of Directors; and (h) authorize or approve the
issuance or sale or contract for sale of shares, or determine the designation
and relative rights, preferences and limitations of a class or series of
shares, except that the Board of Directors may authorize a committee to do so
within limits prescribed by the Board of Directors. Unless otherwise provided
by the Board of Directors in creating the committee, a committee may employ
counsel, accountants and other consultants to assist it in the exercise of its
authority.
3.13. Telephonic Meetings. Except as herein provided and
notwithstanding any place set forth in the notice of the meeting or these
by-laws, members of the Board of Directors (and any committee thereof) may
participate in regular or special meetings by, or through the use of, any
means of communication by which all participants may simultaneously hear each
other, such as by conference telephone. If a meeting is conducted by such
means, then at the commencement of such meeting the presiding officer shall
inform the participating directors that a meeting is taking place at which
official business may be transacted. Any participant in a meeting by such
means shall be deemed present in person at such meeting. Notwithstanding the
foregoing, no action may be taken at any meeting held by such means on any
particular matter which the presiding officer determines, in his sole
discretion, to be inappropriate under the circumstances for action at a
meeting held by such means. Such determination shall be made and announced in
advance of such meeting.
3.14. Unanimous Consent without Meeting. Any action required or
permitted by the Articles of Incorporation or these by-laws or any provision
of the Wisconsin Business Corporation Law to be taken by the Board of
Directors (or a committee thereof) at a meeting
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may be taken without a meeting if a consent in writing, setting forth the
action so taken, shall be signed by all members of the Board or of the
committee, as the case may be, then in office. Such action shall be effective
when the last director or committee member signs the consent, unless the
consent specifies a different effective date.
ARTICLE IV. OFFICERS
4.01. Number. The principal officers of the corporation shall
be a Chairman of the Board, a President, one or more Vice-Presidents, not to
exceed six (6) at any given time, a Secretary, and a Treasurer, each of whom
shall be elected by the Board of Directors. Such other officers and assistant
officers as may be deemed necessary may be elected or appointed by the Board
of Directors. The Board of Directors may also authorize any duly appointed
officer to appoint one or more officers or assistant officers. Any two or
more offices may be held by the same person.
4.02. Election and Term of Office. The officers of the
corporation to be elected by the Board of Directors shall be elected annually
by the Board of Directors at the first meeting of the Board of Directors held
after the Annual Meeting. If the election of officers shall not be held at
such meeting, such election shall be held as soon thereafter as conveniently
may be. Each officer shall hold office until his successor shall have been
duly elected or until his prior death, resignation or removal.
4.03. Removal and Resignation. The Board of Directors may
remove any officer and, unless restricted by the Board of Directors or these
by-laws, an officer may remove any officer or assistant officer appointed by
that officer, at any time, with or without cause and notwithstanding the
contract rights, if any, of the officer removed. Election or appointment
shall not of itself create contract rights. An officer may resign at any time
by delivering notice to the corporation that complies with the Wisconsin
Business Corporation Law. The resignation shall be effective when the notice
is delivered, unless the notice specifies a later effective date and the
corporation accepts the later effective date.
4.04. Vacancies. A vacancy in any principal office because of
death, resignation, removal, disqualification or otherwise, shall be filled by
the Board of Directors for the unexpired portion of the term. If a
resignation of an officer is effective at a later date as contemplated by
Section 4.03 hereof, the Board of Directors may fill the pending vacancy
before the effective date if the Board provides that the successor may not
take office until the effective date.
4.05. Chairman of the Board. The Chairman of the Board shall be
the principal executive officer of the corporation and, subject to the control
of the Board of Directors, shall in general supervise and control all of the
business and affairs of the corporation. He shall, when present, preside at
all Annual Meetings and Special Meetings and at all meetings of the Board of
Directors. He shall have authority, subject to such rules as may be
prescribed by the Board of Directors, to appoint such agents and employees of
the corporation as he shall deem necessary, to prescribe their powers, duties
and compensation, and to delegate authority to them. Such agents and
employees shall hold office at the discretion of the Chairman of the Board.
He shall have authority to sign, execute and acknowledge, on behalf of the
corporation,
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all deeds, mortgages, bonds, stock certificates, contracts, leases, reports
and all other documents or instruments necessary or proper to be executed in
the course of the corporation's regular business, or which shall be authorized
by resolution of the Board of Directors; and, except as otherwise provided by
law or the Board of Directors, he may authorize the President or any
Vice-President or other officer or agent of the corporation to sign, execute
and acknowledge such documents or instruments in his place and stead. In
general he shall perform all duties incident to the office of Chairman of the
Board and such other duties as may be prescribed by the Board of Directors
from time to time.
4.06. President. The President shall be the principal operating
officer of the corporation, subject to the control of the Chairman of the
Board and the Board of Directors. In the absence of the Chairman of the Board
or in the event of his death, inability or refusal to act, or in the event for
any reason it shall be impracticable for the Chairman of the Board to act
personally, the President shall perform the duties of the Chairman of the
Board, and when so acting, shall have all the powers of and be subject to all
the restrictions upon the Chairman of the Board. The President may sign, with
the Secretary or Assistant Secretary, certificates for shares of the
corporation, and shall in general perform all duties incident to the office of
President and such other duties and shall have such authority as from time to
time may be delegated or assigned to him by the Chairman of the Board or by
the Board of Directors. The execution of any instrument of the corporation by
the President shall be conclusive evidence, as to third parties, of his
authority to act in the place and stead of the Chairman of the Board.
4.07. The Vice-Presidents. In the absence of the President or
in the event of his death, inability or refusal to act, or in the event for
any reason it shall be impracticable for the President to act personally, the
Vice-President (or in the event there be more than one Vice-President, the
Vice-Presidents in the order designated by the Board of Directors, or in the
absence of any designation, then in the order of their election) shall perform
the duties of the President, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the President. Any Vice-President
may sign, with the Secretary or Assistant Secretary, certificates for shares
of the corporation and shall perform such other duties and have such authority
as from time to time may be delegated or assigned to him by the President or
by the Board of Directors. The execution of any instrument of the corporation
by any Vice-President shall be conclusive evidence, as to third parties, of
his authority to act in the stead of the President.
4.08 The Secretary. The Secretary shall: (a) keep the minutes of
all Annual Meetings and Special Meetings and of all meetings of the Board of
Directors in one or more books provided for that purpose (including records of
actions taken without a meeting); (b) see that all notices are duly given in
accordance with the provisions of these by-laws or as required by the
Wisconsin Business Corporation Law; (c) be custodian of the corporate records
and of the seal of the corporation and see that the seal of the corporation is
affixed to all documents the execution of which on behalf of the corporation
under its seal is duly authorized; (d) maintain a record of the shareholders
of the corporation, in a form that permits preparation of a list of the names
and addresses of all shareholders, by class or series of shares and showing
the number and class or series of shares held by each shareholder; (e) sign
with the Chairman
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of the Board, the President, or a Vice-President, certificates for shares of
the corporation, the issuance of which shall have been authorized by
resolution of the Board of Directors; (f) have general charge of the stock
transfer books of the corporation; and (g) in general perform all duties
incident to the office of Secretary and have such other duties and exercise
such authority as from time to time may be delegated or assigned to him by the
President or by the Board of Directors.
4.09. The Treasurer. The Treasurer shall: (a) have charge and
custody of and be responsible for all funds and securities of the corporation;
(b) maintain appropriate accounting records; (c) receive and give receipts for
moneys due and payable to the corporation from any source whatsoever, and
deposit all such moneys in the name of the corporation in such banks, trust
companies or other depositaries as shall be selected in accordance with the
provisions of Section 5.04; and (d) in general perform all of the duties
incident to the office of Treasurer and have such other duties and exercise
such other authority as from time to time may be delegated or assigned to him
by the President or by the Board of Directors. If required by the Board of
Directors, the Treasurer shall give a bond for the faithful discharge of his
duties in such sum and with such surety or sureties as the Board of Directors
shall determine.
4.10. Assistant Secretaries and Assistant Treasurers. There
shall be such number of Assistant Secretaries and Assistant Treasurers as the
Board of Directors may from time to time authorize. The Assistant Secretaries
may sign with the Chairman of the Board, the President or a Vice-President
certificates for shares of the corporation the issuance of which shall have
been authorized by a resolution of the Board of Directors. The Assistant
Treasurers shall respectively, if required by the Board of Directors, give
bonds for the faithful discharge of their duties in such sums and with such
sureties as the Board of Directors shall determine. The Assistant Secretaries
and Assistant Treasurers, in general, shall perform such duties and have such
authority as shall from time to time be delegated or assigned to them by the
Secretary or the Treasurer, respectively, or by the President or the Board of
Directors.
4.11 Other Assistants and Acting Officers. The Board of Directors
shall have the power to appoint, or to authorize any duly appointed officer of
the corporation to appoint, any person to act as assistant to any officer, or
as agent for the corporation in his stead, or to perform the duties of such
officer whenever for any reason it is impracticable for such officer to act
personally, and such assistant or acting officer or other agent so appointed
by the Board of Directors or the appointing officer shall have the power to
perform all the duties of the office to which he is so appointed to be
assistant, or as to which he is so appointed to act, except as such power may
be otherwise defined or restricted by the Board of Directors or the appointing
officer.
4.12 Salaries. The salaries of the principal officers shall be
fixed from time to time by the Board of Directors or by a duly authorized
committee thereof, and no officer shall be prevented from receiving such
salary by reason of the fact that he is also a director of the corporation.
ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS; SPECIAL
CORPORATE ACTS
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5.01. Contracts. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or execute or
deliver any instrument in the name of and on behalf of the corporation, and
such authorization may be general or confined to specific instances. In the
absence of other designation, all deeds, mortgages and instruments of
assignment or pledge made by the corporation shall be executed in the name of
the corporation by the Chairman of the Board, the President or one of the
Vice-Presidents and by the Secretary, an Assistant Secretary, the Treasurer or
an Assistant Treasurer; the Secretary or an Assistant Secretary, when
necessary or required, shall affix the corporate seal thereto; and when so
executed no other party to such instrument or any third party shall be
required to make any inquiry into the authority of the signing officer or
officers.
5.02. Loans. No indebtedness for borrowed money shall be
contracted on behalf of the corporation and no evidences of such indebtedness
shall be issued in its name unless authorized by or under the authority of a
resolution of the Board of Directors. Such authorization may be general or
confined to specific instances.
5.03. Checks, Drafts, etc. All checks, drafts or other orders
for the payment of money, notes or other evidences of indebtedness issued in
the name of the corporation, shall be signed by such officer or officers,
agent or agents of the corporation and in such manner as shall from time to
time be determined by or under the authority of a resolution of the Board of
Directors.
5.04. Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the corporation
in such banks, trust companies or other depositories as may be selected by or
under the authority of a resolution of the Board of Directors.
5.05 Voting of Securities Owned by this Corporation. Subject always
to the specific directions of the Board of Directors, (a) any shares or other
securities issued by any other corporation and owned or controlled by this
corporation may be voted at any meeting of security holders of such other
corporation by the Chairman of the Board of this corporation if he be present,
or in his absence by the President of this corporation if he be present, or in
his absence by any Vice-President of this corporation who may be present, and
(b) whenever, in the judgment of the Chairman of the Board, or in his absence,
of the President, or in his absence, of any Vice-President, it is desirable
for this corporation to execute a proxy or written consent in respect to any
shares or other securities issued by any other corporation and owned by this
corporation, such proxy or consent shall be executed in the name of this
corporation by the Chairman of the Board, the President or one of the
Vice-Presidents of this corporation, without necessity of any authorization by
the Board of Directors, affixation of corporate seal or countersignature or
attestation by another officer. Any person or persons designated in the
manner above stated as the proxy or proxies of this corporation shall have
full right, power and authority to vote the shares or other securities issued
by such other corporation and owned by this corporation the same as such
shares or other securities might be voted by this corporation.
5.06. No Nominee Procedures. The corporation has not
established, and nothing in these by-laws shall be deemed to establish, any
procedure by which a beneficial owner of the
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corporation's shares that are registered in the name of a nominee is
recognized by the corporation as the shareholder under Section 180.0723 of the
Wisconsin Business Corporation Law.
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.01. Certificates for Shares. Certificates representing shares
of the corporation shall be in such form, consistent with the Wisconsin
Business Corporation Law, as shall be determined by the Board of Directors.
Such certificates shall be signed by the Chairman of the Board, the President
or a Vice-President and by the Secretary or an Assistant Secretary. All
certificates for shares shall be consecutively numbered or otherwise
identified. The name and address of the person to whom the shares represented
thereby are issued, with the number of shares and date of issue, shall be
entered on the stock transfer books of the corporation. All certificates
surrendered to the corporation for transfer shall be cancelled and no new
certificate shall be issued until the former certificate for a like number of
shares shall have been surrendered and cancelled, except as provided in
Section 6.06.
6.02. Facsimile Signatures and Seal. The seal of the
corporation on any certificates for shares may be a facsimile. The signatures
of the Chairman of the Board, the President or any Vice-President and the
Secretary or Assistant Secretary upon a certificate may be facsimiles if the
certificate is countersigned by a transfer agent, or registered by a
registrar, other than the corporation itself or an employee of the
corporation.
6.03. Signature by Former Officers. In case any officer, who
has signed or whose facsimile signature has been placed upon any certificate
for shares, shall have ceased to be such officer before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer at the date of its issue.
6.04. Transfer of Shares. Prior to due presentment of a
certificate for shares for registration of transfer the corporation may treat
the registered owner of such shares as the person exclusively entitled to
vote, to receive notifications and otherwise to exercise all the rights and
powers of an owner. Where a certificate for shares is presented to the
corporation with a request to register for transfer, the corporation shall not
be liable to the owner or any other person suffering loss as a result of such
registration of transfer if (a) there were on or with the certificate the
necessary endorsements, and (b) the corporation had no duty to inquire into
adverse claims or has discharged any such duty. The corporation may require
reasonable assurance that said endorsements are genuine and effective and in
compliance with such other regulations as may be prescribed under the
authority of the Board of Directors.
6.05. Restrictions on Transfer. The face or reverse side of
each certificate representing shares shall bear a conspicuous notation of any
restriction imposed by the corporation upon the transfer of such shares.
6.06. Lost, Destroyed or Stolen Certificates. Where the owner
claims that his certificate for shares has been lost, destroyed or wrongfully
taken, a new certificate shall be issued in place thereof if the owner (a) so
requests before the corporation has notice that such
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shares have been acquired by a bona fide purchaser, and (b) files with the
corporation a sufficient indemnity bond, and (c) satisfies such other
reasonable requirements as the Board of Directors may prescribe.
6.07. Consideration for Shares. The Board of Directors may
authorize shares to be issued for consideration consisting of any tangible or
intangible property or benefit to the corporation, including cash, promissory
notes, services performed, contracts for services to be performed or other
securities of the corporation. Before the corporation issues shares, the
Board of Directors shall determine that the consideration received or to be
received for the shares to be issued is adequate. In the absence of a
resolution adopted by the Board of Directors expressly determining that the
consideration received or to be received is adequate, Board approval of the
issuance of the shares shall be deemed to constitute such a determination.
The determination of the Board of Directors is conclusive insofar as the
adequacy of consideration for the issuance of shares relates to whether the
shares are validly issued, fully paid and nonassessable. The corporation may
place in escrow shares issued in whole or in part for a contract for future
services or benefits, a promissory note, or other property to be issued in the
future, or make other arrangements to restrict the transfer of the shares, and
may credit distributions in respect of the shares against their purchase
price, until the services are performed, the benefits or property are received
or the promissory note is paid. If the services are not performed, the
benefits or property are not received or the promissory note is not paid, the
corporation may cancel, in whole or in part, the shares escrowed or restricted
and the distributions credited.
6.08. Stock Regulation. The Board of Directors shall have the
power and authority to make all such further rules and regulations not
inconsistent with the statutes of the State of Wisconsin as it may deem
expedient concerning the issue, transfer and registration of certificates
representing shares of the corporation.
ARTICLE VII. SEAL
7.01. The Board of Directors shall provide a corporate seal
which shall be circular in form and shall have inscribed thereon the name of
the corporation and the state of incorporation and the words, "Corporate
Seal".
ARTICLE VIII. INDEMNIFICATION
8.01. Certain Definitions. All capitalized terms used in this
Article VIII and not otherwise hereinafter defined in this Section 8.01 shall
have the meaning set forth in Section 180.0850 of the Statute. The following
capitalized terms (including any plural forms thereof) used in this Article
VIII shall be defined as follows:
(a) "Affiliate" shall include, without limitation, any corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise
that directly or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the Corporation.
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(b) "Authority" shall mean the entity selected by the Director or
Officer to determine his or her right to indemnification pursuant to Section
8.04.
(c) "Board" shall mean the entire then elected and serving Board of
Directors of the Corporation, including all members thereof who are Parties to
the subject Proceeding or any related Proceeding.
(d) "Breach of Duty" shall mean the Director or Officer breached or
failed to perform his or her duties to the Corporation and his or her breach
of or failure to perform those duties is determined, in accordance with
Section 8.04, to constitute misconduct under Section 180.0851 (2) (a) 1, 2, 3
or 4 of the Statute.
(e) "Corporation," as used herein and as defined in the Statute and
incorporated by reference into the definitions of certain other capitalized
terms used herein, shall mean this Corporation, including, without limitation,
any successor corporation or entity to this Corporation by way of merger,
consolidation or acquisition of all or substantially all of the capital stock
or assets of this Corporation.
(f) "Director or Officer" shall have the meaning set forth in the
Statute; provided, that, for purposes of Article VIII, it shall be
conclusively presumed that any Director or Officer serving as a director,
officer, partner, trustee, member of any governing or decision-making
committee, employee or agent of an Affiliate shall be so serving at the
request of the Corporation.
(g) "Disinterested Quorum" shall mean a quorum of the Board who are
not Parties to the subject Proceeding or any related Proceeding.
(h) "Party" shall have the meaning set forth in the Statute;
provided, that, for purposes of this Article VIII, the term "Party" shall also
include any Director or Officer or employee who is or was a witness in a
Proceeding at a time when he or she has not otherwise been formally named a
Party thereto.
(i) "Proceeding" shall have the meaning set forth in the Statute;
provided, that, for purposes of this Article VIII, the term "Proceeding" shall
also include all Proceedings (i) brought under (in whole or in part) the
Securities Act of 1933, as amended, the Exchange Act, their respective state
counterparts, and/or any rule or regulation promulgated under any of the
foregoing; (ii) brought before an Authority or otherwise to enforce rights
hereunder; (iii) any appeal from a Proceeding; and (iv) any Proceeding in
which the Director or Officer is a plaintiff or petitioner because he or she
is a Director or Officer; provided, however, that such Proceeding is
authorized by a majority vote of a Disinterested Quorum.
(j) "Statute" shall mean Sections 180.0850 through 180.0859,
inclusive, of the Wisconsin Business Corporation Law, Chapter 180 of the
Wisconsin Statutes, as the same shall then be in effect, including any
amendments thereto, but, in the case of any such amendment, only to the extent
such amendment permits or requires the Corporation to provide broader
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indemnification rights than the Statute permitted or required the Corporation
to provide prior to such amendment.
8.02. Mandatory Indemnification. To the fullest extent
permitted or required by the Statute, the Corporation shall indemnify a
Director or Officer against all Liabilities incurred by or on behalf of such
Director or Officer in connection with a Proceeding in which the Director or
Officer is a Party because he or she is a Director or Officer.
8.03. Procedural Requirements.
(a) A Director or Officer who seeks indemnification under Section
8.02 shall make a written request therefor to the Corporation. Subject to
Section 8.03(b), within 60 days of the Corporation's receipt of such request,
the Corporation shall pay or reimburse the Director or Officer for the entire
amount of Liabilities incurred by the Director or Officer in connection with
the subject Proceeding (net of any Expenses previously advanced pursuant to
Section 8.05).
(b) No indemnification shall be required to be paid by the
Corporation pursuant to Section 8.02 if, within such 60-day period, (i) a
Disinterested Quorum, by a majority vote thereof, determines that the Director
or Officer requesting indemnification engaged in misconduct constituting a
Breach of Duty or (ii) a Disinterested Quorum cannot be obtained.
(c) In either case of nonpayment pursuant to Section 8.03(b), the
Board shall immediately authorize by resolution that an Authority, as provided
in Section 8.04, determine whether the Director's or Officer's conduct
constituted a Breach of Duty and, therefore, whether indemnification should be
denied hereunder.
(d) (i) If the Board does not authorize an Authority to determine
the Director's or Officer's right to indemnification hereunder within such
60-day period and/or (ii) if indemnification of the requested amount of
Liabilities is paid by the Corporation, then it shall be conclusively presumed
for all purposes that a Disinterested Quorum has determined that the Director
or Officer did not engage in misconduct constituting a Breach of Duty and, in
the case of subsection (i) above (but not subsection (ii)), indemnification by
the Corporation of the requested amount of Liabilities shall be paid to the
Director or Officer immediately.
8.04. Determination of Indemnification.
(a) If the Board authorizes an Authority to determine a Director's
or Officer's right to indemnification pursuant to Section 8.03, then the
Director or Officer requesting indemnification shall have the absolute
discretionary authority to select one of the following as such Authority:
(i) An independent legal counsel; provided, that such counsel
shall be mutually selected by such Director or Officer and by a
majority vote of a Disinterested Quorum or, if a Disinterested
Quorum cannot be obtained, then by a majority vote of the Board;
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(ii) A panel of three arbitrators selected from the panels of
arbitrators of the American Arbitration Association in Milwaukee,
Wisconsin; provided, that (A) one arbitrator shall be selected by
such Director or Officer, the second arbitrator shall be selected by
a majority vote of a Disinterested Quorum or, if a Disinterested
Quorum cannot be obtained, then by a majority vote of the Board, and
the third arbitrator shall be selected by the two previously
selected arbitrators, and (B) in all other respects, such panel
shall be governed by the American Arbitration Association's then
existing Commercial Arbitration Rules; or
(iii) A court pursuant to and in accordance with Section
180.0854 of the Statute.
(b) In any such determination by the selected Authority there shall
exist a rebuttable presumption that the Director's or Officer's conduct did
not constitute a Breach of Duty and that indemnification against the requested
amount of Liabilities is required. The burden of rebutting such a presumption
by clear and convincing evidence shall be on the Corporation or such other
party asserting that such indemnification should not be allowed.
(c) The Authority shall make its determination within 60 days of
being selected and shall submit a written opinion of its conclusion
simultaneously to both the Corporation and the Director or Officer.
(d) If the Authority determines that indemnification is required
hereunder, the Corporation shall pay the entire requested amount of
Liabilities (net of any Expenses previously advanced pursuant to Section
8.05), including interest thereon at a reasonable rate, as determined by the
Authority, within 10 days of receipt of the Authority's opinion; provided,
that, if it is determined by the Authority that a Director or Officer is
entitled to indemnification as to some claims, issues or matters, but not as
to other claims, issues or matters, involved in the subject Proceeding, the
Corporation shall be required to pay (as set forth above) only the amount of
such requested Liabilities as the Authority shall deem appropriate in light of
all of the circumstances of such Proceeding.
(e) The determination by the Authority that indemnification is
required hereunder shall be binding upon the Corporation regardless of any
prior determination that the Director or Officer engaged in a Breach of Duty.
(f) All Expenses incurred in the determination process under this
Section 8.04 by either the Corporation or the Director or Officer, including,
without limitation, all Expenses of the selected Authority, shall be paid by
the Corporation.
8.05. Mandatory Allowance of Expenses.
(a) The Corporation shall pay or reimburse, within 10 days after
the receipt of the Director's or Officer's written request therefor, the
reasonable Expenses of the Director or Officer as such Expenses are incurred;
provided, the following conditions are satisfied:
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(i) The Director or Officer furnishes to the Corporation an
executed written certificate affirming his or her good faith belief
that he or she has not engaged in misconduct which constitutes a
Breach of Duty; and
(ii) The Director or Officer furnishes to the Corporation an
unsecured executed written agreement to repay any advances made
under this Section 8.05 if it is ultimately determined by an
Authority that he or she is not entitled to be indemnified by the
Corporation for such Expenses pursuant to this Section 8.04.
(b) If the Director or Officer must repay any previously advanced
Expenses pursuant to this Section 8.05, such Director or Officer shall not be
required to pay interest on such amounts.
8.06. Indemnification and Allowance of Expenses of Certain
Others.
(a) The Corporation shall indemnify a director or officer of an
Affiliate (who is not otherwise serving as a Director or Officer) against all
Liabilities, and shall advance the reasonable Expenses, incurred by such
director or officer in a Proceeding to the same extent hereunder as if such
director or officer incurred such Liabilities because he or she was a Director
or Officer, if such director or officer is a Party thereto because he or she
is or was a director or officer of the Affiliate.
(b) The Corporation shall indemnify an employee who is not a
Director or Officer, to the extent that he or she has been successful on the
merits or otherwise in defense of a Proceeding, for all reasonable Expenses
incurred in the Proceeding if the employee was a Party because he or she was
an employee of the Corporation.
(c) The Board may, in its sole and absolute discretion as it deems
appropriate, pursuant to a majority vote thereof, indemnify (to the extent not
otherwise provided in Section 8.06(b) hereof) against Liabilities incurred by,
and/or provide for the allowance of reasonable Expenses of, an employee or
authorized agent of the Corporation acting within the scope of his or her
duties as such and who is not otherwise a Director or Officer.
8.07. Insurance. The Corporation may purchase and maintain
insurance on behalf of a Director or Officer or any individual who is or was
an employee or authorized agent of the Corporation against any Liability
asserted against or incurred by such individual in his or her capacity as such
or arising from his or her status as such, regardless of whether the
Corporation is required or permitted to indemnify against any such Liability
under this Article VIII.
8.08. Notice to the Corporation. A Director, Officer or
employee shall promptly notify the Corporation in writing when he or she has
actual knowledge of a Proceeding which may result in a claim of
indemnification against Liabilities or allowance of Expenses hereunder, but
the failure to do so shall not relieve the Corporation of any liability to the
Director, Officer or employee hereunder unless the Corporation shall have been
irreparably prejudiced by such
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failure (as determined, in the case of Directors or Officers only, by an
Authority selected pursuant to Section 8.04(a)).
8.09. Severability. If any provision of this Article VIII shall
be deemed invalid or inoperative, or if a court of competent jurisdiction
determines that any of the provisions of this Article VIII contravene public
policy, this Article VIII shall be construed so that the remaining provisions
shall not be affected, but shall remain in full force and effect, and any such
provisions which are invalid or inoperative or which contravene public policy
shall be deemed, without further action or deed by or on behalf of the
Corporation, to be modified, amended and/or limited, but only to the extent
necessary to render the same valid and enforceable.
8.10. Nonexclusivity of Article VIII. The rights of a Director,
Officer or employee (or any other person) granted under this Article VIII
shall not be deemed exclusive of any other rights to indemnification against
Liabilities or advancement of Expenses which the Director, Officer or employee
(or such other person) may be entitled to under any written agreement, Board
resolution, vote of shareholders of the Corporation or otherwise, including,
without limitation, under the Statute. Nothing contained in this Article VIII
shall be deemed to limit the Corporation's obligations to indemnify against
Liabilities or advance Expenses to a Director, Officer or employee under the
Statute.
8.11. Contractual Nature of Article VIII; Repeal or Limitation
of Rights. This Article VIII shall be deemed to be a contract between the
Corporation and each Director, Officer and employee of the Corporation and any
repeal or other limitation of this Article VIII or any repeal or limitation of
the Statute or any other applicable law shall not limit any rights of
indemnification against Liabilities or allowance of Expenses then existing or
arising out of events, acts or omissions occurring prior to such repeal or
limitation, including, without limitation, the right to indemnification
against Liabilities or allowance of Expenses for Proceedings commenced after
such repeal or limitation to enforce this Article VIII with regard to acts,
omissions or events arising prior to such repeal or limitation.
ARTICLE IX. AMENDMENTS
9.01. By Shareholders. These by-laws may be altered, amended or
repealed and new by-laws may be adopted by the shareholders at any Annual
Meeting or Special Meeting at which a quorum is in attendance.
9.02. By Directors. These by-laws may also be altered, amended
or repealed and new by-laws may be adopted by the Board of Directors by
affirmative vote of a majority of the number of directors present at any
meeting at which a quorum is in attendance; provided, however, that the
shareholders in adopting, amending or repealing a particular by-law may
provide therein that the Board of Directors may not amend, repeal or readopt
that by-law.
9.03. Implied Amendments. Any action taken or authorized by the
shareholders or by the Board of Directors, which would be inconsistent with
the by-laws then in effect but is taken or authorized by affirmative vote of
not less than the number of shares or the number of directors required to
amend the by-laws so that the by-laws would be consistent with such
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action, shall be given the same effect as though the by-laws had been
temporarily amended or suspended so far, but only so far, as is necessary to
permit the specific action so taken or authorized.