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EXHIBIT 3(b)
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RESTATED BYLAWS
OF
TWIN DISC, INCORPORATED
(Adopted April 19, 1991)
(Amended July 28, 1995)
(Amended October 18, 1996)
(Amended June 22, 1998)
ARTICLE I. OFFICE
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The principal office of the Corporation in the State of Wisconsin shall
be located in the City of Racine, Racine County. 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.
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.
ARTICLE II. SHAREHOLDERS
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(1) ANNUAL MEETING. The Annual Meeting of the Shareholders, for the
purpose of electing directors and for the transaction of such other business
as may come before the meeting, shall be held during the months of September
or October in each year at such place, on such date and at such time as the
Board of Directors may designate, written notice of the place, date and time
of such meeting to be given each Shareholder not less than ten (10) days nor
more than sixty (60) days prior to the date of the meeting. If the place,
date and time of the Annual Shareholders Meeting for any year shall not have
been designated by the Board of Directors at least thirty (30) days prior to
the first day of September of such year, then the Annual Meeting of the
Shareholders shall be held at the registered office of the Corporation on the
third Friday of October in such year at 2 o'clock p.m., if not a legal
holiday, but if a legal holiday, then on the next business day following.
(2) SPECIAL MEETINGS. Special Meetings of the Shareholders may be
called by the Chairman and Chief Executive Officer, the President and Chief
Operating Officer or the Secretary, and shall be called by the President and
Chief Operating Officer or Secretary at the request in writing of a majority
of the Board of Directors, or at the request of Shareholders owning not less
than twenty-five percent (25%) of the outstanding shares of stock of the
Corporation entitled to vote at the meeting. Any such request shall state the
purpose, or purposes, of the proposed meeting. At any Special Meeting, the
order of business thereat shall be determined by the Chairman and Chief
Executive Officer, the President and Chief Operating Officer of the Company.
(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 called by the Board
of Directors. If no designation is made, or if a Special Meeting be otherwise
called, the place of the meeting shall be the registered office of the
Corporation, but any meeting may be adjourned to reconvene at any place
designated by a vote of a majority of the shares represented at such meeting.
(1)
(4) NOTICE OF MEETING. Written notice stating the place, date and
time 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 (10)
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 Chairman and Chief
Executive Officer, President and Chief Operating Officer, Secretary, the Board
of Directors, or other person 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
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mail, addressed, to the Shareholder at his address as it appears on the stock
record book or similar records of the Corporation, with postage thereon
prepaid. Notice of any meeting of the Shareholders shall clearly state that
proxy appointments will be ruled invalid unless received by the Secretary
before the deadlines prescribed in these By-Laws.
(5) RECORD DATE. The Board of Directors may fix in advance a record
date to determine the Shareholders entitled to notice of a Shareholders
meeting, which record date shall be not more than seventy (70) nor less than
five (5) days prior to the meeting or action requiring a determination of the
Shareholders. A determination of the Shareholders entitled to notice of or to
vote at a Shareholders' meeting is effective for any adjournment of the
meeting unless the Board of Directors fixes a new date, which it shall be
required to do only if the meeting is adjourned to a date more than one
hundred twenty (120) days after the date fixed for the original meeting.
(6) SHAREHOLDERS LIST. After fixing a record date for a Shareholders
meeting, the Secretary shall prepare a list of names of all its Shareholders
who are entitled to notice of the Shareholders meeting. The Secretary shall
make the list available for inspection by any Shareholder, beginning two (2)
days after notice of the meeting is given for which the list was prepared, at
the Corporation's principal place of business, or at a place designated in the
meeting notice. During the period specified in this By-Law, a Shareholder or
such Shareholder's agent may inspect the list during regular business hours on
written notice to the Secretary stating the date upon which the inspection is
requested to take place, which date shall be not less than five (5) days from
the date the request is made. The Corporation shall make the list available
at the meeting, and any Shareholder or his agent 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 pursuant to this Bylaw shall
not affect the validity of any action taken at the meeting.
(7) QUORUM. Except as otherwise provided by law, these By-laws or
the Articles of Organization, 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, and a majority of votes cast
at any meeting at which a quorum is present shall be decisive of any motion or
election, unless a greater number is required by law, by these By-laws or by
the Articles of Organization. The meeting may be adjourned from time to time
by a majority of the votes cast. The Secretary must give proper notice of the
time, date, or place unless the new time, date, or place is announced at the
meeting. Once a share is represented for any purpose at a meeting other than
for the purpose of objecting to the holding of the meeting or the transaction
of business at the meeting, such share is considered present for the purpose
of determining whether a quorum exists for any adjournment of that meeting,
unless a new record date is set for that adjourned meeting.
(8) PROXIES. At any meetings of the Shareholders, any Shareholder is
entitled to vote by proxy. A Shareholder may appoint a person to vote or
otherwise act for him by signing an appointment form, either personally or by
his authorized agent. Such a proxy appointment form shall be delivered to the
Secretary of the Corporation in person, by mail or by messenger, not less than
forty-eight (48) hours
(2)
prior to the date of any Shareholder meeting. No proxy shall be valid after
eleven (11) months from the date of its execution unless otherwise provided
conspicuously on the face of the appointment form. Appointment forms or
revocations transmitted by facsimile, telex, telegram, or electronic means
shall not be accepted.
(8.25) REVOKING PROXIES. A Shareholder may revoke a proxy appoint-
ment form signed by him by:
(a) openly stating the revocation at the Shareholders
meeting;
(b) voting at the Shareholders meeting in person;
(c) submitting a proxy appointment form bearing a later
date to the corporate Secretary pursuant to the provisions of these Bylaws; or
(d) delivering a signed written statement revoking the
proxy to the corporate Secretary prior to the date of the meeting.
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(8.50) PROXY VALIDATION. Any valid proxy appointment form must meet
the following standards:
(a) The proxy appointment form must be delivered to the
Secretary of the Corporation pursuant to the provisions of these Bylaws;
(b) The appointment form shall bear a signature in
handwriting sufficiently legible to allow the inspector to distinguish it as
representing the name of a registered Shareholder, or be accompanied by a
rubber stamp facsimile or hand-printed name, including the Shareholder's
surname, and either the Shareholder's first or middle name as represented on
the corporate records, and any titles, offices or words indicating agency
which appear in the corporate records;
(c) If the name appearing on the appointment form does not
correspond with the Shareholder's name in the corporate records, the signature
on the appointment form must then include some indication of the signator's
agency, office or authority allowing them to represent these Shareholder in
this particular matter;
(d) If the Shareholder is an entity, the person signing
the form must demonstrate their authority as officer or agent;
(e) If the person signing the appointment form purports to
be a personal representative, administrator, executor, guardian or conser-
vator, the person signing the form must demonstrate their authority to
represent the Shareholder in this matter; or
(f) If two or more persons are Shareholders as co-tenants
or fiduciaries and the name signed purports to be the name of at least one of
the co-owners, the person signing the form must demonstrate their authority
to act on behalf of the other co-owners(s).
The inspector shall in good faith, considering the facts and
circumstances, determine whether each proxy appointment satisfies these
standards. In making his determination the inspector shall be entitled to
rely upon the genuineness of all signatures and purported authority of persons
designated as officers, agents, representatives or co-owners. The inspector's
determination shall be final.
(9) VOTING. Each outstanding share entitled to vote shall be entitled
to one (1) vote upon each matter submitted to a vote at a meeting of
Shareholders. Upon demand of any Shareholder, the vote for Directors shall be
by ballot.
(3)
(10) VOTING OF SHARES BY CERTAIN SHAREHOLDERS. Shares standing in the
name of another Corporation may be voted either in person or by proxy, by the
President of such Corporation or any other officer appointed by such
President. Shares held by an administrator, executor, guardian, conservator,
trustee in bankruptcy, receiver, or assignee for creditors may be voted by
him, either in person or by proxy, without a transfer of such shares into his
name. Shares standing in the name of a fiduciary may be voted by him, either
in person or by proxy. A Shareholder whose shares are pledged shall be
entitled to vote such shares until the shares have been transferred into the
name of the pledgee, and thereafter, the pledgee shall be entitled to vote the
shares so transferred.
Shares of its own stock belonging to the Corporation shall not be voted,
directly or indirectly at any meeting, and shall not be counted in determining
the total number of outstanding shares entitled to vote at any given time, but
shares of its own stock held by it in a fiduciary capacity may be voted and
shall be counted in determining the total number of outstanding shares at any
given time.
(11) INSPECTORS OF ELECTION. Prior to the meeting, the Board of
Directors may appoint no fewer than one (1) but no more than seven (7)
inspectors to serve at any meeting of the Shareholders. The inspectors may be
selected from among the employees of the Corporation or any individuals not
affiliated with the Corporation. The inspectors shall determine the number of
shares outstanding and the voting power of each share, the number of shares
represented at the meeting, the existence of a quorum, and the validity and
effect of proxy appointments. The inspectors shall also receive votes,
ballots and consents, hear and determine challenges and questions in
connection with the right to vote, decide all questions relating to the
qualifications of voters and the validity of proxy appointments pursuant to
the provisions of these Bylaws, count and tabulate all votes, ballots or
consents, and do such acts as are proper to conduct the election with fairness
to all Shareholders. In the event the Board of Directors does not appoint any
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inspector, the Secretary of the Corporation shall perform any duties and
exercise any authority provided to the inspector under these By-Laws.
(11.5) PROCEDURES AT THE SHAREHOLDER MEETING. The Chairman of the
meeting shall follow the order of business prepared by the Secretary of the
Corporation pursuant to the provisions of these By-laws. The Chairman of the
meeting may rule out of order any motion from the floor to consider a matter
not appearing on the agenda. All matters on the agenda may be combined on a
single ballot, and in the case of an election for the Board of Directors, all
names of those candidates properly nominated under these By-laws may appear
together on a single ballot. The Chairman shall announce the outcome
following each vote, however the final count may be completed after the
meeting provided the inspectors of the election sign a supplemental
certification of election specifying the final count. The inspectors shall
determine that each individual admitted to the meeting is a Shareholder on or
prior to the record date, and no other individual shall participate in or
observe the meeting, otherwise than by direction of the Chairman. The Board
of Directors may provide for security to maintain reasonable decorum and
ensure the safety of the participants.
The Chairman of the meeting is responsible for enforcing the rules of
procedure on the floor of the meeting. Statements by Shareholders may not
exceed two (2) minutes, or three (3) minutes in the case of the proponent's
initial remarks on a matter before the Shareholders. The Chairman of the
meeting may rule out of order any statement that exceeds the allotted time,
goes beyond the matter before the Shareholders, repeats earlier statements at
the meeting, or relates to subject matters beyond the general interest of the
Shareholders. The Chairman of the meeting shall have the power to rule on any
other points of order and his decision shall be final.
(4)
(12) WAIVER OF NOTICE BY SHAREHOLDERS. Whenever any notice whatever
is required to be given to any Shareholder of the Corporation under the
Articles of Incorporation or By-laws or any provision of law, 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 Wisconsin law, shall contain
the same information as would have been required to be included in such
notice, except the time and place of meeting.
(13) INFORMAL ACTION BY SHAREHOLDERS. Any action required or
permitted by the Articles of Incorporation or By-laws or any provision of law
to 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.
(14) BUSINESS CONDUCTED AT THE MEETING.
(a) At any Annual Meeting or Special Meeting of
Shareholders, only such business shall be conducted, and only such proposals
shall be acted as shall have been properly brought before the meeting in
accordance with these By-Laws. To be properly brought before any Annual
Meeting or Special Meeting, any proposed business must be (i) specified in the
notice of the meeting (or any supplement thereto) given by or at the direction
of the Board of Directors; (ii) otherwise brought before the meeting by or at
the direction of the Board of Directors; or (iii) properly brought before the
meeting by a shareholder. For a proposal to be properly brought before a
meeting by a shareholder (other than a shareholder proposal specified in the
notice of the meeting given by or at the direction of the Board of Directors
and included in the Corporation's proxy statement pursuant to Rule 14(a)-8
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")),
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 (a) not less than sixty (60) days before the anniversary date
of the date on which the Corporation first mailed its proxy materials for the
immediately preceding Annual Meeting, or (b) in the case of a Special Meeting
or in the event the date of the Annual Meeting has changed more than thirty
(30) days from the prior year, notice by the shareholder to be timely must be
given so as to be received not later than the close of business on the tenth
(10th) day following the earlier of the day on which notice of the date of
such meeting was mailed or public disclosure of the date of such meeting was
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made. A shareholder's notice to the Secretary shall set forth as to each
matter the shareholder proposes to bring before the meeting, (i) a brief
description of the proposal desired to be brought before the meeting and the
reasons for conducting such business at the meeting; (ii) the name and record
address, as they appear on the Corporation's books, of the shareholder
proposing such business and any other shareholders known by such shareholder
to be supporting such proposal; (iii) the class and number of shares of the
Corporation's stock which are beneficially owned by the shareholder on the
date of such shareholder notice and by any other shareholders known by such
shareholder to be supporting such proposal on the date of such shareholder
notice; and (iv) any financial interest of the shareholder in such proposal.
(b) The Secretary shall compose an agenda prescribing the
order of business for the meeting, which shall include all matters properly
submitted under these By-Laws and provide the agenda to the Chairman of the
meeting. The Secretary shall also deliver to the Chairman of the meeting a
list of those matters not properly submitted, and the chairman shall so
declare at the meeting and state that any such business shall not be
transacted.
(5)
(c) This provision shall not prevent the consideration and
approval or disapproval at the meeting of matters properly brought before the
meeting nor of reports of officers, directors and committees of the Board of
Directors; however, in connection with such reports, no business shall be
acted upon at such meeting unless properly submitted as herein provided.
ARTICLE III. BOARD OF DIRECTORS
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(1) GENERAL POWERS. The business and affairs of the Corporation
shall be managed by its Board of Directors.
(2) SPECIFIC POWERS. Without prejudice to such general powers and
subject to the laws of Wisconsin and the Articles of Organization, it is
hereby expressly declared that the Directors shall have the following powers,
to-wit: to adopt and alter a common seal of the Corporation; to make and
change regulations not inconsistent with these By-Laws, for the management of
the Corporation's business and affairs; to purchase or otherwise acquire for
the Corporation any property, rights or privileges which the Corporation is
authorized to acquire; to pay for any property purchased for the Corporation
either wholly or partly in money, stock, bonds, debentures or other securities
of the Corporation; to borrow money and to make and issue notes, bonds, and
other negotiable and transferable instruments, mortgages, necessary to
effectuate the same; to appoint and remove or suspend such subordinate
officers, agents or factors as they may deem necessary and to determine their
duties, and fix and from time to time change their salaries or renumeration,
and to require security as and when they think fit; to confer upon any officer
of the company the power to appoint, remove and suspend subordinate officers,
agents and factors; to determine who shall be authorized on the Corporation's
behalf to make and sign bills, notes, acceptances, endorsements, checks,
releases, contracts and other instruments.
(3) NUMBER, TENURE, RESIGNATION AND QUALIFICATIONS. The number of
directors of the Corporation shall be nine (9). Directors need not be
residents of the State of Wisconsin nor Shareholders of the Corporation.
The Board of Directors shall be divided into three classes, consisting of
three, three and three Directors. The term of office of each Director elected
for a full term shall be the period of three years to expire at the Annual
Meeting of Shareholders three years after the date of his election. The
number of Directors to be elected at such meeting shall be equal to the number
whose term expires at the time of such meeting. Each Director shall hold
office for the term for which he is elected and until the next Annual Meeting
of Shareholders at which his successor shall be elected, or until his death,
or until he shall resign or shall have been removed in a manner provided in
these By-Laws.
(4) REGULAR MEETINGS. A regular meeting of the Board of Directors
shall be held without other notice than this By-Law immediately after and at
the same place as the Annual Meeting of Shareholders and each adjournment
thereof. 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 to Directors than such resolution.
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(5) SPECIAL MEETINGS. Special Meetings of the Board of Directors may
be called by or at the request of the Chairman, President, Secretary, or any
five (5) Directors. Special Meetings of the Board of Directors shall be held
at such place, either within or without the State of Wisconsin, as the
majority of the members of the Board of Directors may from time to time
appoint.
(6)
(6) NOTICE. Notice of any Special Meeting shall be given at least
forty-eight (48) hours previously thereto by written notice, delivered
personally or mailed to each Director at his business address, or by telegram.
If mailed, such notice shall be deemed to be delivered 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 delivered when the
telegram is delivered to the telegraph company. Whenever any notice whatever
is required to be given to any Director of the Corporation under the Articles
of Incorporation or By-Laws, or any provision of 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 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 to be specified in the notice or waiver of notice of such meeting.
(7) QUORUM. Except as otherwise provided by law or by these By-Laws,
a majority of the number of Directors fixed by Section (3) of this Article III
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.
(8) 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 law by
the Articles of Organization or by these By-Laws.
(8.5) CONDUCTING MEETINGS. Any or all directors may participate in or
conduct a regular or Special Meeting of the Board of Directors through the use
of any means of communication by which all participating directors may
simultaneously hear each other during the meeting, and all communication
during the meeting is immediately transmitted to each participating director
and each participating director is able to send immediately messages to all
participating directors. If any means of communication as described above is
to be utilized at a meeting of the Board of Directors, all participating
directors must be informed that a meeting is taking place at which official
business may be transacted.
(9) VACANCIES. Any vacancy in the Board of Directors, including a
vacancy created by an increase in the number of Directors, may be filled until
the next succeeding annual election by the affirmative vote of a majority of
the Directors then in office, though less than a quorum of the Board of
Directors. In the event of removal of one or more Directors as provided by
these By-Laws, a new Director or Directors to fill such vacancy or vacancies,
as the case may be, may be elected at the same meeting of Shareholders at
which such action of removal is taken.
(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.
The Board of Directors also shall have authority to provide for reasonable
pensions, disability or death benefits, and other benefits or payments, to
Directors, officers and employees and to their estates, families, dependents
or beneficiaries on account of prior services rendered by such Directors,
officers and employees to the Corporation. Each Director shall also be
reimbursed for his necessary expenses in connection with attending meetings of
the Board of Directors.
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(7)
(11) PRESUMPTION OF ASSENT. A Director of the Corporation who is
present at a meeting of the Board of Directors 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.
(12) INFORMAL ACTION BY DIRECTORS. Any action required or permitted
by the Articles of Incorporation, By-Laws, or other provision of law, which
might be taken at a meeting of the Board of Directors 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.
(12.5) EMERGENCY BY-LAWS. In the event of an emergency, which, for
purposes of this By-Law, is defined as a catastrophic event including but
without limitation to, a fire, plane crash, tornado, flood, or snow storm,
preventing a quorum of the Board of Directors from being assembled, the
following emergency By-Law provisions shall become and remain effective until
such time as it is practicable for a normally constituted Board of Directors
to resume management of the business of the Corporation.
(a)Those members of the Board of Directors who are available
during the emergency shall continue to manage the business of the Corporation.
A director is unavailable under this By-Law if such director is unable to
receive notice of a Board of Directors meeting as provided in Article III,
Section (6) of the By-Laws, or having received notice is by reason of the
emergency unable to participate in the meeting so noticed.
(b)Three (3) directors shall constitute a quorum of the Board of
Directors during an emergency. If the number of available directors should
drop below three (3), additional directors may be appointed by the remaining
directors from the officers or employees of the Corporation. Not more than
three (3) directors shall be appointed under this provision.
(c)Meetings during an emergency may be called by any available
director, using any reasonable means of communication in an effort to contact
or give notice to each remaining director.
(d)During an emergency, any director may participate in or
conduct a meeting of the Board of Directors through any available means of
communication which allows all directors participating to simultaneously hear
each other, and such communication is immediately transmitted to each
director.
(e)The provisions of the Corporation's regular By-laws shall
remain effective during the emergency period except to the extent inconsistent
therewith.
(f)The emergency By-laws shall no longer be effective after the
emergency ceases and the term of any Director appointed to serve during such
emergency shall end.
(13) RESIGNATION AND REMOVAL FOR CAUSE. Any Director, member of a
committee or other officer may resign at any time. Such resignation shall be
made in writing, and shall take effect at the time specified therein, and if
no time be specified, at the time of its receipt by the President or Secre
tary. The acceptance of a resignation shall not be necessary to make it
effective.
A Director may be removed from office during the term of such office but
only upon a showing of good cause, such removal to be by affirmative vote of a
majority of the outstanding shares entitled to vote for the election of such
Director and which action may only be taken at a Special Meeting of stockhold
ers called for that purpose.
(8)
A Special Meeting of the stockholders as herein referred to may only be
held after a hearing on the matter of cause claimed to exist has been held by
the full Board of Directors of the company at which hearing the Director or
Directors proposed for removal shall be given an adequate opportunity for
preparation and attendance in person (together with representation by coun
sel); provided, however, that such hearing shall be held only after written
notice has been given to said Director or Directors proposed for removal
specifying the matters of cause claimed to exist. The conclusions of said
hearing shall be reported by the Board of Directors in writing accompanying
the notice of the special stockholders' meeting sent to each stockholder
eligible to vote at said Special Meeting.
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(14) DIRECTORS EMERITUS. The Board of Directors may from time to time
name Directors Emeritus of the Board of Directors of the Corporation who shall
be entitled to receive notice of all meetings of the Board and to attend
thereat, provided that they shall not be entitled to a vote upon any proposi
tion to be voted by said Board of Directors. Director Emeritus shall serve at
the pleasure of the Board.
ARTICLE IV. OFFICERS
- - - - - - - - - - -
(1) NUMBER AND QUALIFICATION. The principal officers of the Corpora
tion shall be a Chairman and Chief Executive Officer, at the option of the
Board, a President and Chief Operating Officer, an Executive Vice President,
one or more other Vice Presidents as the Board may choose to select, a
Secretary, a Treasurer, and at the option of the Board, a President of North
American Operations. The Chairman and Chief Executive Officer and the
President and Chief Operating Officer shall be selected from among the
membership of the Board of Directors and shall hold office until their
successors are elected and qualified notwithstanding any earlier termination
of their office as director, other than their removal for cause. Such other
officers and assistant officers that may be deemed necessary may be elected or
appointed by the Board and any two or more offices may be held by the same
person except the offices of President and Chief Operating Officer and Vice
President.
(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 death, or until he shall resign, or shall
have been removed in a manner hereinafter provided.
(3) REMOVAL. Any officer or agent elected or appointed by the Board
of Directors 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. The Chairman and Chief Executive Officer or President and
Chief Operating Officer may suspend any officer until the next Board meeting.
(4) VACANCIES. A vacancy in any principal office because of death,
resignation, removal, disqualification or otherwise, may be filled by the
Board of Directors for the unexpired portion of the term.
(9)
(5) CHAIRMAN AND CHIEF EXECUTIVE OFFICER. The Chairman and Chief
Executive Officer shall preside at all meetings of the Board of Directors, and
shall have the general powers and duties of supervision and management of the
business of the Corporation, its officers and agents. He shall have authority
to sign certificates for shares of the Corporation as provided in ARTICLE VII
hereof. He shall have authority, subject to 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 and Chief Executive
Officer. In his capacity as Chairman and Chief Executive Officer, he shall
also appoint all Board committees and their chairmen and he shall have such
other power and duties as may from time to time be prescribed by the Board of
Directors.
(6) PRESIDENT AND CHIEF OPERATING OFFICER. The President and Chief
Operating Officer shall, in general, supervise, direct and control the
operations and business of the Corporation subject to the supervision and
direction of the Chairman and Chief Executive Officer and the Board of
Directors and the provisions of these By-Laws. The President and Chief
Operating Officer shall also, subject to such rules as may be prescribed by
these By-laws, the Chairman and Chief Executive Officer, or the Board of
Directors, have the authority to sign, execute and acknowledge on behalf of
the Corporation all deeds, mortgages, contracts, leases, reports and all other
documents or instruments necessary or proper to be executed in the course of
the Corporation's regular business, including certificates for shares of the
Corporation. In the absence of the Chairman and Chief Executive Officer, he
shall preside at all meetings of the Shareholders and Board of Directors.
25
(7) VICE PRESIDENTS. In the absence of the President and Chief
Operating Officer, or in the event of his death, inability or refusal to act,
the Executive Vice President or in his absence the Vice President-Finance (or
should neither be available then the other Vice Presidents in the order
designated at the time of their election or in the absence of any designation,
then in the order of their election) shall perform the duties of the President
and Chief Operating Officer, and when so acting shall have all the powers of
and be subject to all the restrictions upon the President and Chief Operating
Officer. Any Vice President may sign, with the Chairman and Chief Executive
Officer and with the Secretary or Assistant Secretary, certificates for shares
of the Corporation; and shall perform such other duties and have such author
ity as from time to time may be assigned to him by the Chairman and Chief
Executive Officer or President and Chief Operating Officer or by the Board of
Directors. Any Vice President is authorized to affix the seal of the Corpora
tion to any document which requires the same.
(8) SECRETARY. The Secretary shall: (a) keep the minutes of the
Shareholders' and of the Board of Directors' Meetings in one or more books
provided for that purpose; (b) see that all notices are duly given in accor
dance 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 which require the
same, the execution of which on behalf of the Corporation under its seal is
duly authorized by another officer hereunder or by the Board of Directors; (d)
keep a register of the post office addresses of each Shareholder which shall
be furnished to the Secretary by such Shareholders; (e) sign with the Chairman
and with the President or a Vice President certificates for shares of the Cor-
poration, 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 Chairman and Chief
Executive Officer or President and Chief Operating Officer or by the Board of
Directors.
(10)
(9) TREASURER. The Treasurer shall: (a) have charge and custody of
and be responsible for all funds and securities of the Corporation; receive
and give receipts for monies due and payable to the Corporation from any
source whatsoever, and deposit all such monies in the name of the Corporation
in such banks, trust companies or other depositories as shall be selected in
accordance with the provisions of Article VI of these By-Laws; and (b) 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 Chairman or 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. The
Treasurer is authorized to affix the seal of the Corporation to any document
which requires the same.
(10) ASSISTANT AND ACTING OFFICERS. The Board of Directors shall have
the power to appoint any person to act as assistant to any officers when
deemed desirable, or to perform the duties of such officer whenever for any
reason it is impractical for such officer to act personally, and such assis
tant or acting officer 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, conditioned or restricted by the Board of Directors.
(11) SALARIES. The salaries of the officers shall be fixed from time
to time by the Board of Directors, and no officer shall be prevented from
receiving such salary by the reason of the fact that he is also a Director of
the Corporation.
ARTICLE V. INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
To the fullest extent allowed by law, this Corporation shall indemnify
its directors and officers against expenses (including attorney's fees, court
costs, and disbursements) and liabilities (including ERISA excise taxes,
26
judgments, fines and amounts paid in settlement) incurred in connection with
any actual or threatened action, suit or proceeding to which such person is
made or threatened to be made a party by reason of being, or having been, a
director or officer or, upon written request of the Corporation pursuant to a
resolution of its Board of Directors, serving or having served any other
entity, including any benefit plan of the Corporation.
Prior to the final disposition of an action, the Corporation may advance
expenses for the defense thereof, provided it has received adequate assurances
of repayment if it is ultimately determined that the individual is not
entitled to repayment.
The Corporation shall have the power and authority to purchase and
maintain insurance on behalf of any person who is or was a director, officer
or employee of the Corporation or is or was serving at the request of the
Corporation in such capacity in any other enterprise against any liability
asserted against him and incurred by him in any such capacity or arising out
of his status as such whether or not the Corporation itself would have the
power to indemnify him against such liability under the remaining provisions
of this By-Law.
Indemnification pursuant to this By-Law shall not be exclusive and shall
be in addition to that granted from time to time by operation of law, agree
ment, or vote of the Corporation's directors or Shareholders. With respect to
liabilities and/or expenses arising from or incurred in connection with an
individual serving, at the Corporation's request, any other entity, indemni-
fication by the Corporation shall be deemed to be excess and any indemnifica
tion or insurance provided by such other entity shall be deemed to be primary.
(11)
ARTICLE VI. CONTRACTS, LOANS, CHECKS AND DEPOSITS
- - - - - - - - - - - - - - - - - - - - - - - - - -
(1) CONTRACTS. To the extent not otherwise authorized by these By-
Laws, the Board of Directors may authorize any officer or officers, or agent
or agents, or the Corporation to enter into any contract or execute and
deliver any instrument in the names of and on behalf of the Corporation, and
such authorization may be general or confined to specific instances.
(2) LOANS. No loans shall be contracted on behalf of the Corporation
and no evidences 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.
(3) CHECKS, DRAFTS, AND OTHER EVIDENCES OF INDEBTEDNESS. All checks,
drafts, or other orders for the payment of money issued in the name of the
Company shall be signed by such employee or employees, agent or agents, of the
Company as are appointed by the President, and in such manner, including
facsimile and printed signatures, as may be designed by the President. In
connection with the furnishing of authorizing resolution and signature card
forms needed by commercial banks, the Corporate Secretary, or any Assistant
Secretary, is authorized to execute and certify to such forms as he may deem
appropriate as adopted under the authority of this By-Law and as binding upon
the Company in acceptance therewith, thereby empowering employees or agents
appointed by the President to sign checks, drafts, or other orders for the
payment of money in the name of the Company.
(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 depositories as may be selected by or under
the authority of the Board of Directors.
ARTICLE VII. CERTIFICATES FOR SHARES AND THEIR TRANSFER
- - - - - - - - - - - - - - - - - - - - - - - - - - - - -
(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 and may be signed by
the Chairman of the Board and may be sealed with the seal of the Corporation
or a facsimile thereof. Signatures of the Chairman of the Board, the Presi
dent, the Vice President, the Secretary or Assistant Secretary on a certifi
cate may be facsimiles if the certificate is countersigned by a transfer agent
27
or registered by a registrar other than the Corporation or an employee of the
Corporation. In the event any officer who has signed or whose facsimile
signature has been placed upon such certificate shall have ceased to be such
officer before such certificate is issued, such certificate may be issued by
the Corporation with the same effect as if such person were such officer at
the date of issue of such certificate. 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 certificate 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 Corpora
tion as the Board of Directors may prescribe.
(12)
(2) 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 if so required
furnish proper evidence of incumbency or appointment and of authority to
transfer, or by his attorney thereunto authorized by power of attorney duly
executed and filed with the Secretary of the Corporation, and on surrender for
cancellation of the certificate for such shares. The person in whose name
shares stand on the books of the Corporation is to be the owner thereof for
all purposes.
(3) LOST CERTIFICATES. A new certificate of stock may be issued in
the place of any certificate theretofore issued by the Corporation, alleged to
have been lost or destroyed, and the Board of Directors may, in their discre
tion, require the owner of the lost or destroyed certificate or his legal
representatives to give the Corporation a bond, in such sum as they may
direct, not exceeding double the value of the stock evidenced by such certifi-
cate, to indemnify the Corporation against any claim that may be made against
it on account of the alleged loss of any such certificate, or the issuance of
any such new certificate.
(4) 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 VIII. FISCAL YEAR
- - - - - - - - - - - - - -
The fiscal year of the Corporation shall begin on the 1st day of July in
each year and shall end on the 30th day of June in the following year.
ARTICLE IX. DIVIDENDS
- - - - - - - - - - - -
The Board of Directors may from time to time declare, and the Corpora
tion pay, dividends on its outstanding shares in the manner and upon the terms
and conditions provided by law. Before declaring any dividends, there may be
set apart out of any funds of the Corporation available for dividends, such
sum or sums as the Board of Directors from time to time in their discretion
deem proper for working capital or as a reserve fund to meet contingencies or
for equalizing dividends, or for such other purposes as the Board of Directors
shall deem conducive to the best interest of the Corporation.
ARTICLE X. SEAL
- - - - - - - - -
The corporate seal shall be a round metallic disk with the words "TWIN
DISC, INCORPORATED, Racine, Wisconsin" around the circumference, and the words
"Corporate Seal" in the center. If a facsimile or printed seal is used on
stock certificates, it shall be similar in content and design to the above.
ARTICLE XI. AMENDMENTS
- - - - - - - - - - - -
These By-laws may be amended, repealed or altered in whole or in part by
28
the affirmative vote of not less than two-thirds (2/3rds) of the shares of the
company entitled to vote thereon or by the affirmative vote of not less than
two-thirds (2/3rds) of the full Board of Directors of the Company at any
regular meeting of the Shareholders or Board of Directors, or at any Special
Meeting of the Shareholders or Board of Directors provided that such action
has been specified in the notice of any such Special Meeting.
(13)