EXHIBIT 3.2
1994 10-K
RESTATED BY-LAWS
OF
THE MANITOWOC COMPANY, INC.
(Adopted June 16, 1971)
1/(Amended August 14, 1972)
2/(Amended November 7, 1972)
3/(Amended March 19, 1973)
4/(Amended May 5, 1975)
5/(Amended August 17, 1981)
6/(Amended August 20, 1984)
7/(Amended September 5, 1986)
8/(Amended November 3, 1986)
9/(Amended August 21, 1987)
10/(Amended February 19, 1988)
11/(Amended August 12, 1988)
12/(Amended November 7, 1988)
13/(Amended June 23, 1989)
14/(Amended June 22, 1990)
15/(Amended August 9, 1990)
16/(Amended February 15, 1991)
17/(Amended August 12, 1992)
18/(Amended November 3, 1992)
19/(Amended February 1, 1994)
20/(Amended August 9, 1994)
21/(Amended September 16, 1994)
ARTICLE I.
OFFICES
19/ Section 1. Principal Office. The principal office of the
Corporation in the State of Wisconsin shall be located at 700 East
Magnolia Avenue, Suite B, in the City of Manitowoc, County of
Manitowoc. The Corporation may have such other 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.
Section 2. 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 not need 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.
ARTICLE II.
SHAREHOLDERS
1/11/12/14/16/
Section 1. Annual Meeting. The annual meeting of shareholders
shall be held on the first Tuesday in November in each year for the
purpose of electing Directors and for the transaction of only such
other business as is properly brought before the meeting in accordance
with these By-Laws.
To be properly brought before the meeting, business must be
either (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, (b)
otherwise properly brought before the meeting by or at the direction
of the Board of Directors, or (c) otherwise properly brought before
the meeting by a shareholder. In addition to any other applicable
requirements, for business to be properly brought before an annual
meeting by a shareholder, the shareholder must have given timely
notice thereof in writing to the Secretary of the Corporation. To be
timely, a shareholder's notice must be delivered to or mailed and
received at the principal executive offices of the Corporation, not
less than fifty (50) days nor more than seventy-five (75) days prior
to the meeting date set in this Section 1; provided, however, that in
the event that the meeting is not held within ten (10) business days
of the date set in this Section 1 and less than sixty-five (65) days'
notice or prior public disclosure of the date of the meeting is given
or made to shareholders, notice by the shareholder to be timely must
be so received not later than the close of business on the fifteenth
(15th) day following the day on which such notice of the date of the
annual meeting was mailed or such public disclosure was made,
whichever first occurs. A shareholder's notice to the Secretary shall
set forth as to each matter the shareholder proposes to bring before
the annual meeting (i) a brief description of the business desired to
be brought before the annual meeting and the reasons for conducting
such business at the annual meeting, (ii) the name and record address
of the shareholder proposing such business, (iii) the class and number
of shares of the Corporation which are beneficially owned by the
shareholder, and (iv) any material interest of the shareholder in such
business.
Notwithstanding anything in the By-Laws to the contrary, no
business shall be conducted at the annual meeting except in accordance
with the procedures set forth in this Section 1; provided, however,
that nothing in this Section 1 shall be deemed to preclude discussion
by any shareholder of any business properly brought before the annual
meeting.
The Chairman of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly
brought before the meeting in accordance with the provisions of this
Section 1, and if he should so determine, he shall so declare to the
meeting and any such business not properly brought before the meeting
shall not be transacted.
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 for any annual meeting of the
shareholders, or at an adjournment thereof, the Board of Directors
shall cause the election to be held at a special meeting of the
shareholders as soon thereafter as conveniently may be.
6/ Section 2. Special Meetings. Special meetings of the
shareholders, for any purpose or purposes, unless otherwise prescribed
by statute, may be called by the President or by a majority of the
Board of Directors, and shall be called by the President at the
request of the holders of not less than one-half of all the
outstanding shares of the Corporation entitled to vote at the meeting.
16/ Section 3. Place of Meeting. The Board of Directors 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. If no designation is made, or if a special meeting be
otherwise called, the place of meeting shall be the registered office
of the Corporation in the State of Wisconsin.
7/16/ Section 4. Notice of Meeting. Written notice stating the
place, day and hour of the meeting and, in case of a special meeting,
the purpose or purposes for which the meeting is called, shall be
delivered not less than ten days (or, in the case of a special meeting
called at the request of shareholders, not less than twenty-five days)
nor more than sixty (60) days before the date of the meeting, either
personally or by mail, by or at the direction of the President, or the
Secretary, or the officer or persons calling the meeting, to each
shareholder of record entitled to vote at such meeting. If mailed,
such notice shall be deemed to be delivered when deposited in the
United States mail, addressed to the shareholder at his address as it
appears on the stock record books of the Corporation, with postage
thereon prepaid .
16/ Section 5. Voting and Record Date. At each meeting of
shareholders, whether annual or special, each shareholder shall be
entitled to vote in person or by proxy appointed by an instrument in
writing subscribed by such shareholder, and each shareholder shall
have one vote for each share registered in his or her name on the
books of the Corporation at the close of business on a record date
which shall be not more than seventy (70) days prior to the date of
the meeting as such record date is fixed by the Board of Directors.
16/ Section 6. Voting Lists. The officer or agent having charge of
the stock transfer books for shares of the Corporation shall, before
each meeting of shareholders, make a complete list of the shareholders
entitled to vote at such meeting, or any adjournment thereof, with the
address of and the number of shares held by each, which list shall be
available for inspection by any shareholder beginning two (2) 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 and at the time and place of the
meeting during the whole time of the meeting. The original stock
transfer books shall be prima facie evidence as to who are the
shareholders entitled to examine such list or transfer books or to
vote at any meeting of shareholders. Failure to comply with the
requirements of this section shall not affect the validity of any
action taken at such meeting.
Section 7. Quorum. A majority of the outstanding shares of the
Corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of shareholders. Though less than a
quorum of the outstanding shares are represented at a meeting, a
majority of the shares so represented may adjourn the meeting from
time to time without further notice. At such 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.
Section 8. Proxies. At all meetings of shareholders, a
shareholder entitled to vote may vote by proxy appointed in writing by
the shareholder or by his duly authorized attorney in fact. Such
proxy shall be filed with the Secretary of the Corporation before or
at the time of the meeting. No proxy shall be valid after eleven
months from the date of its execution, unless otherwise provided in
the proxy. The Board of Directors shall have the power and authority
to make rules establishing presumptions as to the validity and
sufficiency of proxies.
Section 9. Voting of Shares. Each outstanding share entitled
to vote shall be entitled to one vote upon each matter submitted to a
vote at a meeting of shareholders.
16/ Section 10. Waiver of Notice by Shareholders. Whenever any
notice whatever is required to be given to any shareholder of the
Corporation under the provisions of these By-Laws or under the
provisions of the Articles of Incorporation or under the provisions of
any Statute, a waiver thereof in writing, signed at any time, whether
before or after the time of meeting, by the shareholder entitled to
such notice, shall be deemed equivalent to the giving of such notice;
provided that such waiver in respect to any matter of which notice is
required under any provision of Chapter 180, Wisconsin Statutes, shall
contain the same information as would have been required to be
included in such notice, except the time and place of meeting.
16/ Section 11. Informal Action by Shareholders. Any action
required to be taken at a meeting of the shareholders, or any other
action which may be taken at a meeting of the shareholders, may be
taken without a meeting if a consent in writing, setting forth the
action so taken, shall be signed by all of the shareholders entitled
to vote with respect to the subject matter thereof.
ARTICLE III.
BOARD OF DIRECTORS
Section 1. General Powers. The business and affairs of the
Corporation shall be managed by its Board of Directors.
6/8/9/10/11/13/14/15/17/18/
Section 2. Number, Tenure and Qualifications. The number of
Directors of the Corporation shall not be less than seven (7) nor more
than nine (9). The Directors shall be divided into three classes
which are as nearly equal in number as circumstances permit from time
to time. Each Director shall be elected to serve a term of three (3)
years (except that directors may be elected for shorter terms as
necessary in order to fill vacancies in particular classes of
Directors), and the respective terms of all directors of one class
shall expire at each annual meeting of shareholders. Each Director
shall hold office for the term for which he is elected and until his
successor is elected and qualified, or until his death, or until he
shall resign or shall have been removed in the manner provided in the
Articles of Incorporation. Directors need not be residents of the
State of Wisconsin or shareholders of the Corporation. Any Director
that is also an employee shall, upon retirement or resignation as an
employee, cease to be a member of the Board of Directors.
12/16/
Section 3. Nomination of Directors. Only persons who are
nominated in accordance with the following procedures shall be
eligible for election as Directors. Nominations of persons for
election to the Board of Directors of the Corporation at the annual
meeting may be made at a meeting of shareholders by or at the
direction of the Board of Directors by any nominating committee or
person appointed by the Board of Directors or by any shareholder of
the Corporation entitled to vote for the election of Directors at the
meeting who complies with the notice procedures set forth in this
Section 3. Such nominations, other than those made by or at the
direction of the Board of Directors, shall be made pursuant to timely
notice in writing to the Secretary of the Corporation. To be timely,
a shareholder's notice shall be delivered to or mailed and received at
the principal executive offices of the Corporation not less than fifty
(50) days nor more than seventy-five (75) days prior to the meeting
date set under the provisions of these By-Laws; provided, however,
that in the event that the meeting is not held within ten (10)
business days of the date set in these By-Laws and less than sixty-
five (65) days' notice or prior public disclosure of the date of the
meeting is given or made to shareholders, notice by the shareholder to
be timely must be so received not later than the close of business on
the fifteenth (15th) day following the day on which such notice of the
date of the meeting was mailed or such public disclosure was made,
whichever first occurs. Such shareholder's notice to the Secretary
shall set forth (a) as to each person whom the shareholder proposes to
nominate for election or re-election as a Director, (i) the name, age,
business address and residence address of the person, (ii) the
principal occupation or employment of the person, (iii) the class and
number of shares of capital stock of the Corporation which are
beneficially owned by the person, and (iv) any other information
relating to the person that is required to be disclosed in
solicitations for proxies for election of Directors pursuant to
[Regulation 14A] under the Securities Exchange Act of 1934, as
amended; and (b) as to the shareholder giving the notice (i) the name
and record address of the shareholder and (ii) the class and number of
shares of capital stock of the Corporation which are beneficially
owned by the shareholder. The Corporation may require any proposed
nominee to furnish such other information as may reasonably be
required by the Corporation to determine the eligibility of such
proposed nominee to serve as a Director of the Corporation. No person
shall be eligible for election as a Director of the Corporation unless
nominated in accordance with the procedures set forth herein.
The Chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
1/12/16/
Section 4. Regular Meetings. A regular meeting of the Board of
Directors shall be held within 30 days after the annual meeting of
shareholders, and each adjourned session thereof, and at any other
time as determined by the Board of Directors. Regular meetings of the
Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of
Directors.
12/ Section 5. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the President,
Secretary or any two Directors. The person or persons authorized to
call special meetings of the Board of Directors may fix any place,
within the Continental United States, as the place for holding any
special meeting of the Board of Directors called by them.
12/16/
Section 6. Notice. Notice of any special meeting of the Board
of Directors shall be given at least forty-eight (48) hours before the
date of the meeting or on such shorter notice as the person or persons
calling such meeting may deem necessary or appropriate in the
circumstances, by word of mouth, telephone or radiophone personally,
or written notice mailed to each Director at his business address, or
by telegram. Whenever any notice is required to be given to any
Director of the Corporation under the provisions of these By-Laws or
under the provisions of the Articles of Incorporation or under the
provisions of any Statute, 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 attendance of a Director at a meeting shall
constitute a waiver of notice of such meeting, except where a Director
attends a meeting and objects thereat to the transaction of any
business because the meeting is not lawfully called or convened.
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.
Section 7. Quorum. A majority of the number of Directors fixed
by Section 2 of this Article III shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors, but
though less than such quorum is present at a meeting, a majority of
the Directors present may adjourn the meeting from time to time
without further notice.
Section 8. Manner of Acting. The act of a 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 these By-Laws or By-Law.
6/ Section 9. Vacancies. Any vacancy occurring in the Board of
Directors, including a vacancy created by an increase in the number of
Directors, may be filled for the balance, if any, of the unexpired
term by the affirmative vote of a majority of the Directors then in
office, though less than a quorum of the Board of Directors. For the
purposes of this section, the term "vacancy" shall include the
disability of any Director to the point where he cannot attend
Directors' meetings or effectively discharge his duties as a Director.
Section 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 any or all Directors for services
to the Corporation as Directors, officers or otherwise, or may
delegate such authority to an appropriate committee.
Section 11. Presumption of Assent. A Director of the
Corporation who is present at a meeting of the Board of Directors or a
committee thereof at which action on any corporate matter is taken
shall be presumed to have assented to the action taken unless his
dissent shall be entered in the minutes of the meeting or unless he
shall file his written dissent to such action with the person acting
as the Secretary of the meeting before the adjournment thereof or
shall forward such dissent by registered mail to the Secretary of the
Corporation immediately after the adjournment of the meeting. Such
right to dissent shall not apply to a Director who voted in favor of
such action.
Section 12. Committees. The Board of Directors by resolution
adopted by the affirmative vote of a majority of the number of
Directors fixed by Section 2 of the Article III may designate one or
more committees, each committee to consist of three or more Directors
elected by the Board of Directors, which to the extent provided in
said resolution as initially adopted, and as thereafter supplemented
or amended by further resolution adopted by a like vote shall have and
may exercise, when the Board of Directors is not in session, the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, except action with respect to declaration
of dividends to shareholders, election of officers or the filling of
vacancies in the Board of Directors or committees created pursuant to
this section. The Board of Directors may elect one or more of its
members as alternate members of any such committee who may take the
place of any absent member or members at any meeting of such
committee, upon request by the President or upon request by the
Chairman of such meeting. Each such committee shall fix its own rules
governing the conduct of its activities and shall make such reports to
the Board of Directors of its activities as the Board of Directors may
request.
4/ Section 13. Informal Action by Directors and Committees. Any
action required to be taken at a meeting of the Board of Directors or
a committee thereof, or any action which may be taken at a meeting of
the Board of Directors, or a committee thereof, may be taken without a
meeting if a consent in writing, setting forth the action so taken,
shall be signed by all of the Directors, or members of a committee
thereof, entitled to vote with respect to the subject matter thereof.
14/16/
Section 14. Telephonic Meetings. Unless otherwise provided by
the Articles of Incorporation or these By-Laws, the Board of Directors
of the Corporation (and any committees thereof) may participate in
regular or special meetings by, or through the use of, any means of
communication by which (i) all Directors participating may
simultaneously hear each other, such as by conference telephone, or
(ii) all communication is immediately transmitted to each
participating Director, and each participating Director can
immediately send messages to all other participating Directors. A
Director participating in a meeting by such means shall be deemed
present in person at such meeting. If action is to be taken at any
such telephonic Board of Directors meeting on any of the following:
(i) a plan of merger or consolidation; (ii) a sale, lease, exchange or
other disposition of substantial property or assets of the
Corporation; (iii) a voluntary dissolution or the revocation of
voluntary dissolution proceedings; or (iv) a filing for bankruptcy,
then the identity of each Director participating in such meeting must
be verified by the disclosure of each such Director's social security
number to the Secretary of the Corporation before a vote may be taken
on any of the foregoing matters.
3/ ARTICLE IV.
OFFICERS
5/ Section 1. Number. The principal officers of the Corporation
shall be a Chairman of the Board (if the Board of Directors
determines to elect one), a Vice Chairman of the Board (if the Board
determines to elect one), a President, one or more Vice Presidents,
one or more of whom may be designated Executive Vice President and one
or more of whom may be designated Senior Vice President, 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. Any two or more offices may be held by the same person,
except the offices of President and Vice President and President and
Secretary. The duties of the officers shall be those enumerated
herein and any further duties designated by the Board of Directors.
The duties herein specified for particular officers may be transferred
to and vested in such other officers as the Board of Directors shall
elect or appoint, from time to time and for such periods or without
limitation as to time as the Board shall order.
Officers of the Corporation may apply their titles to their
duties on behalf of the various divisions of the Corporation. The
Board of Directors may, as it deems necessary, authorize the use of
additional official titles by individuals whose duties in behalf of
the various divisions of the Corporation so warrant, the authority of
such divisional offices to be confined to the appropriate divisions.
Section 2. 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 each annual meeting of the shareholders. 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.
Section 3. Removal. Any officer or agent may be removed by the
Board of Directors whenever in its judgment the best interests of the
Corporation will be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed.
Election or appointment shall not of itself create contract rights.
Section 4. 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.
Section 5. Chairman of the Board. The Chairman of the Board
(if the Board of Directors determines to elect one) shall preside at
all meetings of the Board of Directors and shall have such further and
other authority, responsibility and duties as may be granted to or
imposed upon him by the Board of Directors, including without
limitation his designation pursuant to Section 7 as Chief Executive
Officer of the Corporation.
5/ Section 6. Vice Chairman of The Board. The Vice Chairman of
the Board (if the Board of Directors determines to elect one) shall,
in the absence of the Chairman of the Board, preside at all meetings
of the Board of Directors and shall have such further and other
authority, responsibility and duties as may be granted to or imposed
upon him by the Board of Directors, including without limitation his
designation pursuant to Section 8 as Chief Executive Officer of the
Corporation.
5/ Section 7. President. The President, unless the Board of
Directors shall otherwise order pursuant to Section 8, shall be the
Chief 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 meetings of the shareholders and shall preside
at all meetings of the Board of Directors unless the Board shall have
elected a Chairman 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 President. He
shall have authority to sign, execute and acknowledge, on behalf of
the Corporation, 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 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 the Chief Executive
Officer and such other duties as may be prescribed by the Board of
Directors from time to time. In the event the Board of Directors
determines not to elect a Chairman of the Board or a Vice Chairman of
the Board, or in the event of his or their absence or disability, 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 of
the duties and restrictions imposed upon the Chairman of the Board.
5/ Section 8. Chairman of the Board as Chief Executive Officer.
The Board of Directors may designate the Chairman of the Board, the
Vice Chairman of the Board or the President, as the Chief Executive
Officer of the Corporation. In any such event, the Chairman of the
Board, the Vice Chairman of the Board or the President, shall assume
all authority, power, duties and responsibilities otherwise appointed
to the President pursuant to Section 7, and all references to the
President in these By-Laws shall be regarded as references also to the
Chairman of the Board or Vice Chairman of the Board, as such Chief
Executive Officer, except where a contrary meaning is clearly
required.
In further consequence of designating the Chairman of the Board
or the Vice Chairman of the Board as the Chief Executive Officer, the
President shall thereby become the Chief Operating Officer of the
Corporation. He shall, in the absence of the Chairman of the Board or
of the Vice Chairman of the Board, preside at all meetings of
shareholders and Directors. During the absence or disability of the
Chairman of the Board or the Vice Chairman of the Board, he shall
exercise the functions of the Chief Executive Officer of the
Corporation. He shall have authority to sign all certificates,
contracts, and other instruments of the Corporation necessary or
proper to be executed in the course of the Corporation's regular
business or which shall be authorized by the Board of Directors and
shall perform all such other duties as are incident to his office or
are properly required of him by the Board of Directors, the Chairman
of the Board or the Vice Chairman of the Board. He shall have the
authority, subject to such rules, directions, or orders, as may be
prescribed by the Chairman of the Board or the Vice Chairman of the
Board, or the Board of Directors, to appoint and terminate the
appointment of such agents and employees of the Corporation as he
shall deem necessary, to prescribe their power, duties and
compensation and to delegate authority to them.
5/ Section 9. The Vice Presidents. At the time of election, one
or more of the Vice Presidents may be designated Executive Vice
President and one or more of the Vice Presidents may be designated
Senior Vice President. 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 Executive Vice President, or if more than one, the
Executive Vice Presidents in the order designated at the time of their
election, or in the absence of any such designation, then in the order
of their election, or in the event of his or their inability to act
then the Senior Vice President or if more than one, the Senior Vice
Presidents in the order designated at the time of their election, or
in the absence of any such designation then in the order of their
election, or in the event of his or their inability to act, then the
other Vice Presidents in the order designated at the time of their
election, or in the absence of any such 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 as from time to time
may be assigned to him by the President or the Board of Directors.
5/ Section 10. The Secretary. The Secretary shall: (a) keep the
minutes of the meetings of the shareholders and of the Board of
Directors in one or more books provided for that purpose; (b) see that
all notices are duly given in accordance with the provisions of these
By-Laws or as required by 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
the behalf of the Corporation under its seal is duly authorized; (d)
keep or arrange for the keeping of a register of the post office
address of each shareholder which shall be furnished to the Secretary
by such shareholder; (e) sign with 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.
5/ Section 11. The Treasurer. The Treasurer shall: (a) have
charge and custody and be responsible for all funds and securities of
the Corporation; (b) 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 depositories as shall be selected in accordance
with the provisions of Section 4, Article V; and (c) 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.
5/ Section 12. 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 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.
5/ Section 13. Other Assistants and Acting Officers. The Board of
Directors shall have the power 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 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.
5/ Section 14. 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.
4/5/16/
Section 15. Liability of Directors and Officers and Employee
Fiduciaries. No Director shall be liable to the Corporation, its
shareholders, or any person asserting rights on behalf of the
Corporation or its shareholders, for damages, settlements, fees,
fines, penalties or other monetary liabilities arising from a breach
of, or failure to perform, any duty resulting solely from his or her
status as a Director, unless the person asserting liability proves
that the breach or failure to perform constitutes any of the
following: (a) willful failure to deal fairly with the Corporation or
its shareholders in connection with a matter in which the Director has
a material conflict of interest; (b) violation of criminal law, unless
the Director had reasonable cause to believe that his or her conduct
was lawful or no reasonable cause to believe that his or her conduct
was unlawful; (c) transaction from which the Director derived an
improper personal profit; (d) willful misconduct. No person shall be
liable to the Corporation for any loss or damage suffered by it on
account of any action taken or omitted to be taken by him as an
officer, or employee fiduciary as that term is defined in the
Employment Retirement Security Act of 1974 (hereinafter, and in
Section 15 of this Article IV, called "employee fiduciary") of the
Corporation or of any other corporation which he serves as an officer,
or employee fiduciary at the request of the Corporation, in good
faith, if such person (a) exercised and used the same degree of care
and skill as a prudent man would have exercised or used under the
circumstances in the conduct of his own affairs, or (b) took or
omitted to take such action in reliance upon advice of counsel for the
Corporation or upon statements made or information furnished by
officers or employees of the Corporation which he had reasonable
grounds to believe to be true. The foregoing shall not be exclusive
of other rights and defenses to which he may be entitled as a matter
of law.
4/5/16/
Section 16. Indemnity of Officers and Directors and Employee
Fiduciaries. Every person who is or was a Director or officer or
employee fiduciary of the Corporation, and any person who may have
served at its request as a Director or officer or employee fiduciary
of another Corporation in which it owns shares of capital stock or of
which it is a creditor, shall (together with the heirs, executors and
administrators of such person) be indemnified by the Corporation
against all costs, damages and expenses asserted against, incurred by
or imposed upon him in connection with or resulting from any claim,
action, suit or proceeding, including criminal proceedings, to which
he is made or threatened to be made a party by reason of his being or
having been such Director or officer or employee fiduciary, upon a
determination by or on behalf of the Corporation that the Director,
officer or employee fiduciary did not breach or fail to perform a duty
constituting any of the following: (a) willful failure to deal fairly
with the Corporation or its shareholders in connection with a matter
in which the Director or officer has a material conflict of interest;
(b) violation of the criminal law, unless the Director or officer had
reasonable cause to believe that his or her conduct was lawful or no
reasonable cause to believe that his or her conduct was unlawful; (c)
transaction from which the Director or officer derived an improper
personal profit; (d) willful misconduct. This indemnity shall include
reimbursement of amounts and expenses incurred and paid in settling
any such claim, action, suit or proceeding. The termination of a
proceeding by judgment, order, settlement or conviction or upon a plea
of guilty or nolo contendere or its equivalent shall not create a
presumption that such Director or officer or employee fiduciary is not
entitled to indemnification under this Section 16.
The Corporation, by its Board of Directors, may indemnify in like
manner, or with any limitations, any employee or former employee of
the Corporation with respect to any action taken or not taken in his
capacity as such employee.
The foregoing rights of indemnification shall be in addition to
all rights to which officers, Directors or employees may be entitled
as a matter of law.
ARTICLE V.
CONTRACTS, LOANS, CHECKS AND DEPOSITS
3/ Section 1. 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
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.
Section 2. Loans. No loans shall be contracted on behalf of
the Corporation and no evidence of 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.
Section 3. 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 resolution of the Board of Directors.
Section 4. 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
depositaries as may be selected by or under the authority of the Board
of Directors.
ARTICLE VI.
CERTIFICATES FOR SHARES AND THEIR TRANSFERS
Section 1. Certificates for Shares. Certificates representing
shares of the Corporation shall be in such form as shall be determined
by the Board of Directors. Such certificates shall be signed by 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 canceled and no new certificates shall be issued
until the former certificate for a like number of shares shall have
been surrendered and canceled, except that in case of a lost,
destroyed or mutilated certificate a new one may be issued therefor
upon such terms and indemnity to the Corporation as the Board of
Directors may prescribe.
Section 2. Facsimile Signatures and Seal. The Seal of the
Corporation on any certificates for shares may be a facsimile. The
signatures of the President or 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.
Section 3. 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.
Section 4. Transfer of Shares. Transfer of shares of the
Corporation shall be made only on the stock transfer books of the
Corporation by the holder of record thereof or by his legal
representative, who shall furnish proper evidence of authority to
transfer, or by his attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary of the Corporation or the
Corporation's transfer agent, and on surrender for cancellation of the
certificate for such shares. The person in whose name shares stand on
the books of the Corporation shall be deemed by the Corporation to be
the owner thereof for all purposes.
Section 5. 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 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.
Section 6. Stock Regulations. 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 they may deem expedient concerning the issue, transfer
and registration of certificates representing shares of the
Corporation.
ARTICLE VII.
FISCAL YEAR
20/ Section 1. Fiscal Year. The fiscal year of the Corporation
shall end on the thirty-first day of December of each calendar year.
ARTICLE VIII.
DIVIDENDS
Section 1. Dividends. The Board of Directors may from time to
time declare, and the Corporation may pay, dividends on its
outstanding shares in the manner and upon the terms and conditions
provided by law and its Articles of Incorporation.
Section 2. Record Date. The Board of Directors may, but shall
not be obligated to, order the stock books of the Corporation closed
so as to prevent any stock from being transferred of record for a
period not exceeding two (2) weeks prior to the date fixed for the
payment of any dividend, or in the alternative, may fix a record date
for the determination of those shareholders entitled to receive such
dividend, which record date, if so fixed, shall be not more than four
(4) weeks prior to the date fixed for the payment of such dividend.
ARTICLE IX.
SEAL
Section 1. Seal. 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."
6/ ARTICLE X.
AMENDMENTS
Section 1. By Shareholders. These By-Laws may be altered,
amended or repealed and new By-Laws adopted by a vote of the holders
of a majority of outstanding shares entitled to vote which are present
at any annual or special meeting of the shareholders at which a quorum
is in attendance; provided, however, that no amendment of Section 2
of Article II, or of Section 2 or Section 9 of Article III, or of
this Article X, by the shareholders shall be effective unless it shall
have been adopted by a vote of the holders of not less than two-thirds
(2/3) of all outstanding shares entitled to vote.
Section 2. By Directors. These By-Laws may also be altered,
amended or repealed and new By-Laws adopted by the Board of Directors
by affirmative vote of a majority of the entire Board of Directors,
but no By-Law adopted by the shareholders shall be amended or repealed
by the Board of Directors if the By-Law so adopted so provides.
21/ Section 3. 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 a vote that would be sufficient to amend the By-Laws so
that the By-Laws would be consistent with such 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.
THIS INSTRUMENT DRAFTED
BY
ATTORNEY A. F. RANKIN,
MANITOWOC, WISCONSIN