BYLAWS Exhibit (3)-2
of
WISCONSIN ELECTRIC POWER COMPANY
As Amended to May 1, 2000, Inclusive
TABLE OF CONTENTS
ARTICLE I. STOCKHOLDERS
1.01 Annual Meeting
1.02 Special Meetings
1.03 Place of Meetings; Postponements and Adjournments
1.04 Notices to Stockholders
(a) Required Notice
(b) Fundamental Transactions
1.05 Fixing of Record Date
1.06 Quorum and Voting Requirements
1.07 Conduct of Meetings
1.08 Voting at Meetings
(a) Proxies; Voting and Inspectors of Election
(b) Proxies Upon Accrual of Special Right
1.09 Stockholder Unanimous Consent Without a Meeting
1.10 Stockholder Waiver of Notice
1.11 Notice of Stockholder Nomination(s) and/or Proposal(s)
ARTICLE II. BOARD OF DIRECTORS
2.01 Number
2.02 Term of Office
2.03 Election and Tenure
2.04 Removal
2.05 Vacancies
2.06 Regular Meetings
2.07 Special Meetings
2.08 Meetings by Telephone or Other Communication Technology
2.09 Notice of Meetings
2.10 Quorum
2.11 Manner of Acting
2.12 Committees
2.13 Compensation
2.14 Presumption of Assent
2.15 Director Unanimous Consent Without a Meeting
ARTICLE III. OFFICERS
3.01 Appointment
3.02 Resignation and Removal
3.03 Vacancies
3.04 Powers and Duties
3.05 Execution of Instruments
ARTICLE IV. CERTIFICATES FOR SHARES AND THEIR TRANSFER
4.01 Stock Certificates and Facsimile Signatures
4.02 Transfer of Stock
4.03 Lost, Destroyed or Stolen Certificates
4.04 Shares Without Certificates
ARTICLE V. INDEMNIFICATION
5.01 Mandatory Indemnification
5.02 Certain Definitions
5.03 Legal Enforceability
5.04 Limitation on Modification or Termination
5.05 Non-Exclusive Bylaw
ARTICLE VI. OTHER INDEMNIFICATION PROVISIONS
6.01 Indemnification for Successful Defense
6.02 Other Indemnification
6.03 Written Request
6.04 Nonduplication
6.05 Determination of Right to Indemnification
6.06 Advance of Expenses
6.07 Limitations on Indemnification
6.08 Court-Ordered Indemnification
6.09 Indemnification and Allowance of Expenses of Employees and
Agents
6.10 Insurance
6.11 Securities Law Claims
6.12 Liberal Construction
ARTICLE VII. CONTRACTS, CHECKS, NOTES, BONDS, ETC.
7.01 Contracts
7.02 Checks, Drafts, Etc.
ARTICLE VIII. FISCAL YEAR
ARTICLE IX. CORPORATE SEAL
ARTICLE X. EFFECT OF HEADINGS
ARTICLE XI. AMENDMENTS
11.01 By Stockholders
11.02 By Directors
11.03 Implied Amendments
11.04 Certain Voting Requirements Preserved
ARTICLE I.
STOCKHOLDERS
1.01. Annual Meeting. The annual meeting of the
stockholders of the corporation shall be held each year on the
first business day of June, or on such earlier or later date and
at the time designated by or under the authority of the Board of
Directors, the Chairman of the Board, the President or the
Corporate Secretary, for the purpose of electing directors and
for the transaction of such other business as may properly come
before the meeting.
1.02. Special Meetings. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise
prescribed by the Wisconsin Business Corporation Law, may be
called by the Chairman of the Board, the President or a majority
of the Board of Directors, or in case the meeting is for the
purpose of enabling the holders of the Six Per Cent Preferred
Stock, the $100 Par Value Serial Preferred Stock and the $25 Par
Value Serial Preferred Stock (hereinafter together called the
"Preferred Stocks") to elect directors of the corporation, upon
the conditions set forth in the Articles of Incorporation, then,
upon call as therein provided. If and as required by the
Wisconsin Business Corporation Law, a special meeting shall be
called upon written demand describing one or more purposes for
which it is to be held by holders of shares with at least 10% of
the votes entitled to be cast on any issue proposed to be
considered at the meeting. The time and purpose or purposes of
any special meeting shall be described in the notice required by
Section 1.04 of these Bylaws and only business within the
purpose(s) described in such notice shall be conducted at such
meeting.
1.03. Place of Meetings; Postponements and Adjournments.
The Board of Directors, the Chairman of the Board, the President
or the Corporate Secretary may designate any place, either within
or without the State of Wisconsin, as the place of meeting for
any annual meeting or any special meeting, including any
adjourned meeting. The Board of Directors, the Chairman of the
Board, the President or the Corporate Secretary may postpone any
previously scheduled annual meeting or special meeting by giving
public notice of the postponed meeting date at any time prior to
the scheduled meeting date. If no designation is made, the place
of meeting shall be the principal office of the corporation. Any
meeting may be adjourned from time to time, whether or not a
quorum is present, by the chairperson of the meeting or by vote
of a majority of the votes entitled to be cast by the shares
represented thereat.
1.04. Notices to Stockholders.
(a) Required Notice. Notice may be communicated by mail,
private carrier, or any other means permissible under Wisconsin
law. Written notice stating the scheduled 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 communicated
or sent not less than ten (10) days, unless a longer period is
required by the Wisconsin Business Corporation Law or the
Articles of Incorporation, nor more than ninety (90) days, unless
a longer period is permitted or a shorter period is required by
the Wisconsin Business Corporation Law, before the date of the
meeting, by or at the direction of the Chairman of the Board, the
President or the Corporate Secretary, to each stockholder of
record entitled to vote at such meeting or, for the fundamental
transactions described in subsections (b)(1) to (4) below, for
which the Wisconsin Business Corporation Law requires that notice
be given to stockholders not entitled to vote, to all
stockholders of record. For purposes of this Section 1.04,
notice by "electronic transmission" (as defined in the Wisconsin
Business Corporation Law) is written notice. Written notice is
effective (1) when mailed, if mailed postpaid and addressed to
the stockholder's address shown in the corporation's current
record of stockholders; (2) when electronically transmitted to
the stockholder in a manner authorized by the stockholder. At
least twenty (20) days' notice shall be provided if the purpose,
or one of the purposes, of the meeting is to consider a plan of
merger or share exchange for which stockholder approval is
required by law, or the sale, lease, exchange or other
disposition of all or substantially all of the corporation's
property, with or without good will, otherwise than in the usual
and regular course of business. A stockholder may waive notice
in accordance with Section 1.10 of these Bylaws.
(b) Fundamental Transactions. If a purpose of any
stockholder meeting is to consider either: (1) a proposed
amendment to the Articles of Incorporation (including any
restated articles); (2) a plan of merger or share exchange for
which stockholder approval is required by law; (3) the sale,
lease, exchange or other disposition of all or substantially all
of the corporation's property, with or without good will,
otherwise than in the usual and regular course of business; (4)
the dissolution of the corporation; or (5) the removal of a
director, the notice must so state and in cases (1), (2) and (3)
above must be accompanied by, respectively, a copy or summary of
the: (1) proposed articles of amendment or a copy of the restated
articles that identifies any amendment or other change;
(2) proposed plan of merger or share exchange; or (3) proposed
transaction for disposition of all or substantially all of the
corporation's property. If the proposed corporate action creates
dissenters' rights, the notice must state that stockholders and
beneficial stockholders are or may be entitled to assert
dissenters' rights, and must be accompanied by a copy of Sections
180.1301 to 180.1331 (or successor provisions) of the Wisconsin
Business Corporation Law.
1.05. Fixing of Record Date. The Board of Directors, the
Chairman of the Board, the President or the Corporate Secretary
or any other officer authorized by the Board of Directors, may
fix in advance a date as the record date for one or more voting
groups for any determination of stockholders entitled to notice
of a stockholders' meeting, to demand a special meeting, to vote,
or to take any other action, such date in any case to be not more
than seventy (70) days and, in case of a meeting of stockholders,
dividend or stock split, not less than ten (10) days prior to the
meeting or action requiring such determination of stockholders,
and may fix the record date for determining stockholders entitled
to a share dividend or distribution. If within thirty (30) days
after the corporation receives one or more written demands for a
special stockholder meeting that purport to satisfy the
requirements of Section 180.0702(1)(b) of the Wisconsin Business
Corporation Law (or any successor provision) no record date has
been fixed pursuant to the first sentence of this Section 1.05
for the determination of stockholders entitled to demand such a
stockholder meeting, the record date for determining stockholders
entitled to demand such meeting shall be the date that the first
stockholder signed the demand. If no record date has been fixed
pursuant to the first sentence of this Section 1.05 for the
determination of stockholders entitled (A) to notice of or to
vote at a meeting of stockholders prior to the time that notice
of the meeting is mailed or otherwise delivered to stockholders,
or (B) to consent to action without a meeting within thirty (30)
days after the corporation receives the first written consent to
stockholder action without a meeting, (a) the close of business
on the day before the first notice of the meeting is mailed or
otherwise delivered to stockholders or (b) the date that the
first stockholder signed the first written consent to stockholder
action without a meeting, respectively, shall be the record date
for the determination of such stockholders. When a determination
of stockholders entitled to vote at any meeting of stockholders
has been made as provided in this section, such determination
shall be applied to any postponement or adjournment thereof
unless the Board of Directors fixes a new record date and except
as otherwise required by law. A new record date must be set if a
meeting is postponed or adjourned to a date more than 120 days
after the date fixed for the original meeting.
1.06. Quorum and Voting Requirements. Except as otherwise
provided in the Articles of Incorporation or in the Wisconsin
Business Corporation Law, a majority of the votes entitled to be
cast by shares entitled to vote as a separate voting group on a
matter, represented in person or by proxy, shall constitute a
quorum of that voting group for action on that matter at a
meeting of stockholders. If a quorum exists, action on a matter,
other than the election of directors, by a voting group is
approved if the votes cast within the voting group favoring the
action exceed the votes cast opposing the action unless a greater
number of affirmative votes is required by the Wisconsin Business
Corporation Law, the Articles of Incorporation, or any other
provision of these Bylaws. If the Articles of Incorporation or
the Wisconsin Business Corporation Law provide for voting by two
(2) or more classes or voting groups on a matter, action on that
matter is taken only when voted upon by each of those voting
groups counted separately.
1.07. Conduct of Meetings. The Chairman of the Board, or
in his absence or at his request, the Vice Chairman of the Board,
and in his absence, the President, and in the President's
absence, a Vice President, and in their absence, any person
chosen by the stockholders present shall call the meeting of the
stockholders to order and shall act as chairperson of the
meeting, and the Corporate Secretary shall act as secretary of
all meetings of the stockholders, but, in the absence of the
Corporate Secretary, the chairperson of the meeting may appoint
any other person to act as secretary of the meeting.
1.08. Voting at Meetings.
(a) Proxies; Voting and Inspectors of Election. At all
meetings of stockholders, a stockholder entitled to vote may vote
in person or by proxy appointed as provided in the Wisconsin
Business Corporation Law. The means by which a stockholder or
the stockholder's authorized officer, director, employee, agent
or attorney-in-fact may authorize another person to act for the
stockholder by appointing the person as proxy include:
(1) Appointment of a proxy in writing by signing or
causing the stockholder's signature to be affixed to an
appointment form by any reasonable means, including, but not
limited to, by facsimile signature.
(2) Appointment of a proxy by transmitting or
authorizing the transmission of an electronic transmission of the
appointment to the person who will be appointed as proxy or to a
proxy solicitation firm, proxy support service organization or
like agent authorized to receive the transmission by the person
who will be appointed as proxy. Every electronic transmission
shall contain, or be accompanied by, information that can be used
to reasonably determine that the stockholder transmitted or
authorized the transmission of the electronic transmission. Any
person charged with determining whether a stockholder transmitted
or authorized the transmission of the electronic transmission
shall specify the information upon which the determination is
made.
An appointment of a proxy is effective when a signed
appointment form or an electronic transmission of the appointment
is received by the inspector of election or the officer or agent
of the corporation authorized to tabulate votes. An appointment
is valid for 11 months unless a different period is expressly
provided in the appointment. An appointment of a proxy is
revocable unless the appointment form or electronic transmission
states that it is irrevocable and the appointment is coupled with
an interest. The presence of a stockholder who has made an
effective proxy appointment shall not of itself constitute a
revocation.
Voting at meetings of stockholders need not be by written
ballot unless so determined by the Board of Directors, the
Chairman of the Board, the President or the Corporate Secretary.
Voting at meetings of stockholders shall be conducted by one or
more inspectors of election appointed by the Board of Directors,
the Chairman of the Board, the President or the Corporate
Secretary. However, no director or person who is a candidate for
the office of director shall be appointed as such inspector. The
inspectors, or persons representing the inspector if the
inspector is an institution, before entering upon the discharge
of their duties, shall take and subscribe an oath faithfully to
execute the duties of inspector at such meeting with strict
impartiality and according to the best of their ability.
(b) Proxies Upon Accrual of Special Right. In connection
with the first election of a majority of the members of the Board
of Directors by the holders of the Preferred Stocks upon accrual
of the special right of such holders to elect a majority of the
members of the Board, as provided in Article III of the Articles
of Incorporation, the corporation shall prepare and mail to such
holders of record such proxy forms, communications and documents
as may be deemed appropriate (and also such as may be required by
any governmental authority having jurisdiction) for the purpose
of soliciting proxies for the election of directors by such
holders, voting separately as a class without regard to series.
1.09. Stockholder Unanimous Consent Without a Meeting.
Any action required by the Articles of Incorporation, Bylaws or
any provision of law to be taken at a meeting of stockholders or
any other action which may be taken at such a meeting may be
taken without a meeting if consent in writing setting forth the
action so taken shall be signed by all of the stockholders
entitled to vote with respect to the subject matter thereof and
such consent shall have the same force and effect as a unanimous
vote.
1.10. Stockholder Waiver of Notice. A stockholder may
waive any notice required by the Wisconsin Business Corporation
Law, the Articles of Incorporation or these Bylaws before or
after the date and time stated in the notice. The waiver shall
be in writing and signed by the stockholder entitled to the
notice, shall contain the same information that would have been
required in the notice under the Wisconsin Business Corporation
Law except that the time and place of meeting need not be stated,
and shall be delivered to the corporation for inclusion in the
corporate records. A stockholder's attendance at a meeting, in
person or by proxy, waives objection to both of the following:
(a) Lack of notice or defective notice of the meeting,
unless the stockholder at the beginning of the meeting or
promptly upon arrival objects to holding the meeting or
transacting business at the meeting.
(b) Consideration of a particular matter at the
meeting that is not within the purpose described in the
meeting notice, unless the stockholder objects to
considering the matter when it is presented.
1.11. Notice of Stockholder Nomination(s) and/or
Proposal(s). Except with respect to nomination(s) or proposal(s)
adopted or recommended by the Board of Directors for inclusion in
the corporation's proxy statement for its annual meeting, a
stockholder entitled to vote at a meeting may nominate a person
or persons for election as director(s) or propose action(s) to be
taken at a meeting only if written notice of any stockholder
nomination(s) and/or proposal(s) to be considered for a vote at
an annual meeting of stockholders is delivered personally or
mailed by Certified Mail-Return Receipt Requested at least
seventy (70) days and not more than one hundred (100) days before
the scheduled date of such meeting to the Corporate Secretary of
the corporation at the principal business office of the
corporation. With respect to stockholder nomination(s) for the
election of directors each such notice shall set forth: (a) the
name and address of the stockholder who intends to make the
nomination(s), of any beneficial owner of shares on whose behalf
such nomination is being made and of the person or persons to be
nominated; (b) a representation that the stockholder is a holder
of record of stock of the corporation entitled to vote at such
meeting (including the number of shares the stockholder owns as
of the record date (or as of the most recent practicable date if
no record date has been set) and the length of time the shares
have been held) and intends to appear in person or by proxy at
the meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements and understandings
between the stockholder or any beneficial holder on whose behalf
it holds such shares, and their respective affiliates, and each
nominee and any other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to
be made by the stockholder; (d) such other information regarding
each nominee proposed by such stockholder as would have been
required to be included in a proxy statement filed pursuant to
the proxy rules of the Securities and Exchange Commission
(whether or not such rules are applicable) had each nominee been
nominated, or intended to be nominated, by the Board of
Directors; and (e) the consent of each nominee to serve as a
director of the corporation if so elected. With respect to
stockholder proposal(s) for action(s) to be taken at an annual
meeting of stockholders, the notice shall clearly set forth: (a)
the name and address of the stockholder who intends to make the
proposal(s); (b) a representation that the stockholder is a
holder of record of the stock of the corporation entitled to vote
at the meeting (including the number of shares the stockholder
owns as of the record date (or as of the most recent practicable
date if no record date has been set) and the length of time the
shares have been held) and intends to appear in person or by
proxy to make the proposal(s) specified in the notice; (c) the
proposal(s) and a brief supporting statement of such proposal(s);
and (d) such other information regarding the proposal(s) as would
have been required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange
Commission (whether or not such rules are applicable).
Except with respect to nomination(s) or proposal(s) adopted
or recommended by the Board of Directors for inclusion in the
notice to stockholders for a special meeting of stockholders, a
stockholder entitled to vote at a special meeting may nominate a
person or persons for election as director(s) and/or propose
action(s) to be taken at a meeting only if written notice of any
stockholder nomination(s) and/or proposal(s) to be considered for
a vote at a special meeting is delivered personally or mailed by
Certified Mail-Return Receipt Requested to the Corporate
Secretary of the corporation at the principal business office of
the corporation so that it is received in a reasonable period of
time before such special meeting and only if such nomination or
proposal is within the purposes described in the notice to
stockholders of the special meeting. All other notice
requirements regarding stockholder nomination(s) and/or
proposal(s) applicable to annual meetings also apply to
nomination(s) and/or proposal(s) for special meetings.
The chairperson of the meeting may refuse to acknowledge the
nomination(s) and/or proposal(s) of any person made without
compliance with the foregoing procedures. This section shall not
affect the corporation's rights or responsibilities with respect
to its proxies or proxy statement for any meeting.
ARTICLE II.
BOARD OF DIRECTORS
2.01. Number. The number of directors constituting the
whole Board of Directors shall be such number as shall be fixed
from time to time by the affirmative vote of the whole Board but
in no event shall the number be less than three. The number of
directors at any time constituting the whole Board shall not be
reduced so as to shorten the term of any director then in office.
Directors need not be stockholders of the corporation.
2.02. Term of Office. The directors shall hold office
until the next annual meeting of stockholders at which their
respective terms of office shall expire and until their
respective successors are duly elected and qualified, unless
their term of office shall be sooner terminated as provided in
the Articles of Incorporation in connection with the accrual of
the special right of the holders of the Preferred Stocks to elect
a majority of the members of the Board of Directors in the event
of certain dividend defaults.
2.03. Election and Tenure. Unless action is taken without
a meeting under these Bylaws, directors shall be elected by a
plurality of the votes cast by the shares entitled to vote in the
election at a stockholders meeting at which a quorum is present.
Each director shall hold office until the end of such director's
term and until such director's successor has been elected, or
until such director's prior death, resignation or removal. A
director may resign at any time by filing a written resignation
with the Corporate Secretary of the corporation.
2.04. Removal. Subject to the remainder of this
Section 2.04, the shareholders may remove one or more directors
from office as provided in the Wisconsin Business Corporation
Law. During any continuance of the special right of the holders
of the Preferred Stocks to elect a majority of the members of the
Board, as provided in Article III of the Articles of
Incorporation, at any meeting of the stockholders, the holders of
a majority of the votes entitled to be cast by shares of the
Preferred Stocks of the corporation, voting separately as a class
without regard to series, may remove any director theretofore
elected by the holders of the Preferred Stocks or elected by the
Board to fill a vacancy among the directors elected by the
holders of the Preferred Stocks, and may fill any vacancy in the
Board for the unexpired term thus caused; and the holders of a
majority of the votes entitled to be cast by the shares of Common
Stock of the corporation, voting separately as a class, may
remove any director theretofore elected by the Common
stockholders or elected by the Board to fill a vacancy among the
directors elected by the Common stockholders, and may fill the
vacancy in the Board for the unexpired term thus caused.
2.05. Vacancies. Any vacancy occurring in the Board of
Directors, including a vacancy created by an increase in the
number of directors, may be filled by the stockholders or the
Board of Directors. If the directors remaining in office
constitute fewer than a quorum of the Board, the directors may
fill a vacancy by the affirmative vote of a majority of all
directors remaining in office. Each director so elected shall
hold office for a term expiring at the next annual stockholders'
meeting. However, if the vacant office was held by a director
elected by the holders of the Preferred Stocks or by the holders
of the Common Stock, only the holders of shares of that voting
group may vote to fill the vacancy if it is filled by the
shareholders, and only the remaining directors elected by that
voting group may vote to fill the vacancy if it is filled by the
directors.
2.06. Regular Meetings. Regular meetings of the Board of
Directors and any committee thereof shall be held at such time
and place, either within or without the State of Wisconsin, as
may from time to time be fixed by the Board or such committee
without other notice than the schedule prepared by the Corporate
Secretary or the resolution or other action of the Board or
committee establishing the time and place of such regular
meetings.
2.07. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the Board of
Directors, the Executive Committee, the Chairman of the Board,
the President, any committee designated by the Board with
specific authority to do such or any two (2) directors. Special
meetings of any committee may be called by or at the request of
the foregoing persons or the chairman of the committee. The
persons calling any special meeting of the Board of Directors or
committee may fix any place, either within or without the State
of Wisconsin, as the place for holding any special meeting called
by them, and if no other place is fixed the place of meeting
shall be the principal business office of the corporation.
2.08. Meetings by Telephone or Other Communication
Technology. (a) Any or all directors may participate in a
regular or special meeting of the Board of Directors or in a
committee meeting by, or conduct the meeting through the use of,
telephone or any other means of communication by which either:
(i) all participating directors may simultaneously hear each
other during the meeting or (ii) all communication during the
meeting is immediately transmitted to each participating
director, and each participating director is able to immediately
send messages to all other participating directors.
(b) If a meeting will be conducted through the use of any
means described in paragraph (a), all participating directors
shall be informed that a meeting is taking place at which
official business may be transacted. A director participating in
a meeting by any means described in paragraph (a) is deemed to be
present in person at the meeting.
2.09. Notice of Meetings. Notice of each meeting of the
Board of Directors (unless otherwise provided in or pursuant to
Section 2.06 of these Bylaws) shall be given by written notice
delivered personally or mailed or given by telephone or telegram
to each director at his business address or at such other address
as such director shall have designated in writing filed with the
Corporate Secretary, in each case not less than 6 hours prior
thereto. 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; if by telephone, at the time
the call is completed. Whenever any notice whatever is required
to be given to any director of the corporation under the Articles
of Incorporation, Bylaws 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 need be specified in the notice
or waiver of notice of such meeting.
2.10. Quorum. Except as otherwise provided by the
Wisconsin Business Corporation Law or these Bylaws, a majority of
the number of directors as provided in or pursuant to Section
2.01 shall constitute a quorum of the Board of Directors, and a
majority of the number of directors appointed to serve on a
committee shall constitute a quorum of the committee. If at any
meeting of the Board of Directors or any committee thereof there
shall be less than a quorum present, a majority of the directors
present may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall have
been obtained, when any business may be transacted which might
have been transacted at the meeting as first convened had there
been a quorum.
2.11. Manner of Acting. The affirmative vote 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 or any
committee thereof unless the affirmative vote of a greater number
is otherwise required by the Wisconsin Business Corporation Law,
the Articles of Incorporation, the Bylaws or any provision of
law.
2.12. Committees. The Board of Directors, by resolution
adopted by the affirmative vote of a majority of all the
directors then in office, may create one or more committees, each
committee to consist of two (2) or more directors appointed by
the Board of Directors to serve as members of the committee,
which to the extent provided in the resolution as initially
adopted, and as thereafter supplemented or amended by further
resolution adopted by a like vote, may exercise the authority of
the Board of Directors. Notwithstanding the foregoing, no
committee may: (a) authorize distributions; (b) approve or
propose to stockholders action that the Wisconsin Business
Corporation Law requires be approved by stockholders; (c) fill
vacancies on the Board of Directors or any of its committees,
except that the Board of Directors may provide by resolution that
any vacancies on a committee shall be filled by the affirmative
vote of a majority of the remaining committee members; (d) amend
the Articles of Incorporation; (e) adopt, amend or repeal Bylaws;
(f) approve a plan of merger not requiring stockholder approval;
(g) authorize or approve reacquisition of shares, except
according to a formula or method prescribed by the Board of
Directors; or (h) authorize or approve the issuance or sale or
contract for sale of shares, or determine the designation and
relative rights, preferences and limitations of a class or series
of shares, except within limits prescribed by the Board of
Directors.
Unless otherwise provided by the Board of Directors, members
of any committee shall serve at the pleasure of the Board of
Directors. 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 Chairman of the Board or upon
request by the chairperson of such meeting. Each such committee
shall fix its own rules (consistent with the Wisconsin Business
Corporation Law, the Articles of Incorporation and these Bylaws)
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. Unless otherwise provided by the Board
of Directors in creating a committee, a committee may employ
counsel, accountants and other consultants to assist it in the
exercise of authority.
The provisions of Section 2.09 shall also apply to notice
and waiver of notice of meetings of any committee of the Board of
Directors.
2.13. 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 (a) establish reasonable compensation of all directors for
services to the corporation as directors, officers or otherwise,
and the manner and time and payment thereof, (b) 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, and (c) provide for reimbursement
of reasonable expenses incurred in the performance of directors'
duties.
2.14. Presumption of Assent. A director who is present
and is announced as 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 (a) the director objects at the beginning of the
meeting or promptly upon his or her arrival to holding the
meeting or transacting business at the meeting, or (b) the
director's dissent or abstention from the action taken is entered
in the minutes of the meeting, or (c) the director delivers his
or her written notice of dissent or abstention to the presiding
officer of the meeting before the adjournment thereof or to the
corporation immediately after the adjournment of the meeting, or
(d) the director dissents or abstains from an action taken,
minutes of the meeting are prepared that fail to show the
director's dissent or abstention and the director delivers to the
corporation a written notice of that failure promptly after
receiving the minutes. Such right to dissent or abstain shall
not apply to a director who voted in favor of an action.
2.15. Director Unanimous Consent Without a Meeting. Any
action required or permitted by the Articles of Incorporation,
these Bylaws or any provision of law to be taken at a Board of
Directors meeting or committee meeting may be taken without a
meeting if the action is taken by all members of the Board or
committee. The action shall be evidenced by one or more written
consents describing the action taken, signed by each director and
retained by the corporation. Action taken hereunder is effective
when the last director signs the consent, unless the consent
specifies a different effective date. A consent signed hereunder
has the effect of a unanimous vote taken at a meeting at which
all directors or committee members were present, and may be
described as such in any document.
ARTICLE III.
OFFICERS
3.01. Appointment. The officers of the corporation shall
include a Chairman of the Board, a Vice Chairman of the Board, a
President, one or more Vice Presidents, a Treasurer, a Corporate
Secretary, and a Controller. The Chairman of the Board, the Vice
Chairman of the Board and the officers designated by the Board of
Directors as "executive officers" for purposes of the Securities
Exchange Act of 1934 shall be appointed by the Board of
Directors. The Board of Directors shall also designate a Chief
Executive Officer, a Chief Operating Officer and a Chief
Financial Officer. Such other officers and assistant officers as
may be deemed necessary may be appointed by the Board of
Directors or the Chief Executive Officer. Any two or more
offices may be held by the same person.
3.02. Resignation and Removal. An officer shall hold
office until he or she resigns, dies, is removed hereunder, or a
different person is appointed to the office. An officer may
resign at any time by delivering an appropriate written notice to
the corporation. The resignation is effective when the notice is
delivered, unless the notice specifies a later effective date and
the corporation accepts the later effective date. Any officer
may be removed from office by the affirmative vote of a majority
of the whole Board of Directors and, unless restricted by the
Board of Directors, any officer or assistant officer appointed by
the Chief Executive Officer may be removed by the Chief Executive
Officer, at any time, with or without cause and notwithstanding
the contract rights, if any, of the person removed. Except as
provided in the preceding sentence, the resignation or removal is
subject to any remedies provided by any contract between the
officer and the corporation or otherwise provided by law.
Appointment shall not of itself create contract rights.
3.03. Vacancies. A vacancy in any office because of
death, resignation, removal or otherwise, may be filled by the
Board of Directors or the Chief Executive Officer, as
appropriate. The Board of Directors or the Chief Executive
Officer, as appropriate, may, from time to time, omit to appoint
one or more officers or may omit to fill a vacancy, and in such
case, the designated duties of such officer, unless otherwise
provided in these Bylaws, shall be discharged by the Chief
Executive Officer or such other officers as he or she may
designate.
3.04. Powers and Duties. Subject to such limitations as
the Board of Directors may from time to time prescribe, the
officers of the corporation shall each have such powers and
duties as described below, as well as such powers and duties as
from time to time may be conferred by the Chief Executive Officer
or the Board of Directors.
Chairman of the Board
The Chairman of the Board shall:
* preside at all meetings of the stockholders and of the Board
of Directors; and
* perform all other duties incident to the office of Chairman
of the Board and any other duties as may be prescribed by the
Board of Directors.
Vice Chairman of the Board
The Vice Chairman of the Board shall:
* consult with, provide advice to, and otherwise assist the
Chairman of the Board; and
* perform such duties and have such authority as may be
delegated to him by the Chairman of the Board or the Board of
Directors.
In the absence of the Chairman of the Board or in the event of
the Chairman of the Board's death, inability to act, resignation
or removal from office, or pursuant to Article V ("Emergency
Provisions") of the Restated Articles of Incorporation of the
corporation, the powers and duties of the Chairman of the Board
shall for the time being devolve upon and be exercised by the
Vice Chairman of the Board, unless otherwise ordered by the Board
of Directors of the corporation.
Chief Executive Officer
The Chief Executive Officer shall:
* subject to the control of the Board of Directors, in
general, manage, supervise, and control all of the business,
property and affairs of the corporation;
* have authority to appoint officers and assistant officers of
the corporation, subject to any limitations that the Board of
Directors may from time to time prescribe; it being understood
that the Board of Directors continues to reserve its right to
also appoint officers and assistant officers and exclusive right
to appoint officers designated as "executive officers" for
purposes of the Securities Exchange Act of 1934, as provided in
Section 3.01;
* have authority to confer powers and duties to other officers
and assistant officers, including the authority to assign to the
other officers the authority for the management and control of
the business and affairs of the corporation, subject to any
limitations as the Board of Directors may from time to time
prescribe;
* have all powers and duties of supervision and management
usually vested in the general manager of a corporation, including
the supervision and direction of all other officers of the
corporation;
* have authority to appoint agents and employees of the
corporation to hold office at the discretion of the
Chief Executive Officer; prescribe their powers, duties and
compensation, and delegate authority to them;
* have the 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 directed by the Board of
Directors, the Chief Executive Officer may authorize any other
officer or agent of the corporation to sign, execute and
acknowledge such documents or instruments in his or her stead;
and
* perform all other duties incident to the office of Chief
Executive Officer and any other duties as may be prescribed by
the Board of Directors.
President
The President shall:
* be the Chief Operating Officer of the corporation, unless
otherwise designated by the Board of Directors;
* subject to the control of the Chief Executive Officer,
direct certain operating functions; and
* perform the duties incident to the office of President and
any other duties as may be prescribed by the Chief Executive
Officer or the Board of Directors.
In the absence of the Chief Executive Officer or in the event of
the Chief Executive Officer's death, inability to act,
resignation or removal from office, or in the event for any
reason it shall be impracticable for the Chief Executive Officer
to act personally, the powers and duties of the Chief Executive
Officer shall for the time being devolve upon and be exercised by
the President, unless otherwise ordered by the Board of Directors
of the corporation.
Vice Presidents (including Executive Vice Presidents and Senior
Vice Presidents)
The Vice Presidents shall:
* perform such duties and have such authority as from time to
time may be delegated or assigned to them by the Chief Executive
Officer, President or the Board of Directors; and
* to the extent not so delegated or assigned, they have such
duties and authority as generally pertain to their office.
In case of the absence of the President or in the event of the
President's death, inability to act, resignation or removal from
office, or in the event for any reason it shall be impracticable
for the President to act personally, the powers and duties of the
President for the time being devolve upon and be exercised by a
Vice President (or, in the event there be more than one Vice
President, the Vice Presidents in the order designated by the
Chief Executive Officer, or in the absence of any designation,
then in the order of their appointment, unless otherwise ordered
by the Board of Directors of the corporation).
Chief Financial Officer
The Chief Financial Officer shall:
* subject to the control of the Board of Directors and the
Chief Executive Officer, in general, manage, supervise, and
control all of the financial affairs of the corporation;
* have responsibility over the office of the Treasurer and the
Controller;
* designate agents and employees of the corporation to (a)
have charge and custody and be responsible for all funds and
securities of the corporation, (b) receive, disburse and invest
funds of the corporation (c) negotiate and borrow short-term
unsecured funds and to issue and sell commercial paper and other
types of short-term unsecured indebtedness and (d) establish
depository and checking accounts at banks or other financial
institutions for various corporate purposes and act as
signatories for such accounts; and
* in general perform all other duties incident to the office
of the Chief Financial Officer and have such other duties and
exercise such other authority as from time to time may be
delegated or assigned by the Chief Executive Officer, President,
Vice President in charge, if any, or the Board of Directors.
Treasurer
The Treasurer, subject to the control of the Chief Financial
Officer, shall:
* have charge and custody of and be responsible for all funds
and securities of the corporation;
* receive, disburse and invest funds of the corporation, and
keep proper records thereof;
* negotiate and borrow short-term unsecured funds and issue
and sell commercial paper and other types of short-term unsecured
indebtedness;
* establish depository and checking accounts at banks or other
financial institutions for various corporate purposes; it being
understood that the Treasurer is hereby authorized to take any
action to administer these accounts, including acting as a
signatory with respect to such accounts; and
* in general perform all other duties incident to the office
of the Treasurer and have such other duties and exercise such
other authority as from time to time may be delegated or assigned
by Chief Executive Officer, President, Chief Financial Officer,
Vice President in charge, if any, or the Board of Directors.
In the absence of the Chief Financial Officer or in the event of
the Chief Financial Officer's death, inability to act,
resignation or removal from office, or in the event for any
reason it shall be impracticable for the Chief Financial Officer
to act personally, the powers and duties of the Chief Financial
Officer shall for the time being devolve upon and be exercised by
the Treasurer, unless otherwise ordered by the Board of Directors
of the corporation.
In the absence of the Treasurer or in the event of the
Treasurer's death, inability to act, resignation or removal from
office, or in the event for any reason it shall be impracticable
for the Treasurer to act personally, the powers and duties of the
Treasurer shall for the time being devolve upon and be exercised
by the Assistant Treasurer, unless otherwise ordered by the Board
of Directors of the corporation.
Corporate Secretary
The Corporate Secretary shall:
* keep (or cause to be kept) the minutes of the meetings of
the stockholders and of the Board of Directors and its committees
as permanent records;
* see that all notices are duly given in accordance with the
provisions of these Bylaws, or as required by law;
* be custodian of the corporate records and of the corporate
seal and see that the corporate seal is affixed to all documents,
the execution of which on behalf of the corporation under its
seal is duly authorized;
* keep or arrange for the keeping of a register of the post
office address of each stockholder, which shall be furnished to
the Corporate Secretary by such stockholder;
* sign, in accordance with provisions of these Bylaws,
certificates for shares of the corporation, the issuance of which
shall have been authorized by resolution of the Board of
Directors;
* have general charge of the stock transfer books of the
Corporation; and
* perform all other duties incident to the office of Corporate
Secretary and have such other duties and exercise such authority
as from time to time may be delegated or assigned by the Chief
Executive Officer, President, Vice President in charge, if any,
or the Board of Directors.
In the absence of the Corporate Secretary or in the event of the
Corporate Secretary's death, inability to act, resignation or
removal from office, or in the event for any reason it shall be
impracticable for the Corporate Secretary to act personally, the
powers and duties of the Corporate Secretary shall for the time
being devolve upon and be exercised by the Assistant Corporate
Secretary, unless otherwise ordered by the Board of Directors of
the corporation.
Controller
The Controller shall:
* be the principal accounting officer of the corporation,
unless otherwise designated by the Board of Directors;
* maintain proper audit control over the operations of the
corporation and be generally responsible for the accounting
system employed by the corporation;
* direct the budgetary control, general accounting, cost
accounting and statistical activities of the corporation;
* supervise activities in connection with credits and
collections, taxes and physical inventories;
* prepare and furnish reports and statements showing the
financial condition of the corporation as shall be required by
the Board of Directors, Chairman of the Board, Chief Executive
Officer or Chief Financial Officer; and
* in general perform all other duties incident to the office
of the Controller and have such other duties and exercise such
other authority as from time to time may be delegated or assigned
by the Chief Executive Officer, President, Chief Financial
Officer, Vice President in charge, if any, or the Board of
Directors.
3.05. Execution of Instruments. The execution of any
instrument of the corporation by any officer or assistant officer
shall be conclusive evidence, as to third parties, of his or her
authority to act on behalf of the corporation.
ARTICLE IV.
CERTIFICATES FOR SHARES AND THEIR TRANSFER
4.01. Stock Certificates and Facsimile Signatures. The
certificates for shares of stock of the corporation shall be
signed either manually or by facsimile signature by the Chief
Executive Officer, the President or a Vice President, and by the
Corporate Secretary or an Assistant Corporate Secretary of the
corporation, or any other officer or officers that the Board of
Directors designates, and may be sealed with the seal of the
corporation.
The certificates for shares shall be countersigned and
registered either manually or by facsimile signature in such
manner, if any, as the Board of Directors may from time to time
prescribe. The transfer agent and the registrar may, but need
not be, the same person or agency. In the event that the
corporation or its agent is acting in the dual capacity of
transfer agent and registrar, a single manual or facsimile
signature may be used.
In case any such person acting as an officer, transfer agent
or registrar, who has signed, or whose facsimile signature has
been placed upon such certificate, shall have ceased to be such
officer, transfer agent or registrar, before such certificate is
issued, it may be used by the corporation with the same effect as
if such person had not ceased to be such at the date of its
issue.
4.02. Transfer of Stock. The shares of stock of the
corporation shall be transferable on the books of the corporation
upon request by the holders thereof or by duly authorized
attorney, upon surrender and cancellation of certificates for a
like number of shares of the same class and series of stock, with
duly executed assignment and power of transfer endorsed thereon
or attached thereto, and with such proof of the authenticity of
the signature as the corporation or its agents may reasonably
require.
Prior to due presentment of a certificate for shares for
registration of transfer the corporation may treat the registered
owner of such shares as the person exclusively entitled to vote,
to receive notifications and otherwise to have and exercise all
the rights and powers of an owner. Where a certificate for
shares is presented to the corporation with a request to register
for transfer, the corporation shall not be liable to the owner or
any other person suffering loss as a result of such registration
of transfer if (a) there were on or with the certificate the
necessary endorsements, and (b) the corporation had no duty to
inquire into adverse claims or has discharged any such duty. The
corporation may require reasonable assurance that said
endorsements are genuine and effective and in compliance with
such other regulations as may be prescribed by or under the
authority of the Board of Directors.
4.03. 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, (b) files with the corporation a sufficient
indemnity bond and (c) satisfies such other reasonable
requirements as may be prescribed by or under the authority of
the Board of Directors.
4.04. Shares Without Certificates. The Board of Directors
may authorize the issuance of any shares of any of its classes or
series without certificates. The authorization does not affect
shares already represented by certificates until the certificates
are surrendered to the corporation. Within a reasonable time
after the issuance or transfer of shares without certificates,
the corporation shall send the stockholder a written statement
that includes (1) all of the information required on share
certificates and (2) any transfer restrictions applicable to the
shares.
ARTICLE V.
INDEMNIFICATION
5.01. Mandatory Indemnification. The corporation shall
indemnify to the fullest extent permitted by law any person who
is or was a party or threatened to be made a party to any legal
proceeding by reason of the fact that such person is or was a
director or officer of the corporation, or is or was serving at
the request of the corporation as a director or officer of
another enterprise, against expenses (including attorney fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such legal
proceeding.
5.02. Certain Definitions. As used in this Article V,
(a) "indemnify" includes the advancement of expenses upon receipt
of an undertaking to repay upon specified conditions,
(b) "fullest extent permitted by law" means the fullest extent to
which indemnity may lawfully be provided by, pursuant to or
consistently with, the provisions of Sections 180.0850 to
180.0859 of the Wisconsin Business Corporation Law (or any
successor provisions) or any other applicable law, whether
statutory or otherwise, (c) "person" includes the person's heirs,
executors and administrators, (d) "legal proceeding" means any
threatened, pending or completed action, suit or proceeding,
whether or not by or in right of the corporation, (e) "other
enterprise" includes any corporation, partnership, joint venture,
trust, dividend reinvestment plan, stock purchase plan, employee
benefit plan or other plan or entity, (f) "expenses" include
expenses in the enforcement of rights under this Bylaw and any
excise taxes assessed with respect to an employee benefit plan
and (g) in respect of any of such plans, (i) "serving at the
request of the corporation as a director or officer" includes
serving at the request of the corporation in any capacity that
involves services or duties with respect to the plan or its
participants or beneficiaries and (ii) action reasonably believed
to be in the interest of such participants or beneficiaries shall
be deemed reasonably believed to be in, or not opposed to, the
best interests of the corporation.
5.03. Legal Enforceability. The rights provided to any
person by the terms of this Article V shall be legally
enforceable against the corporation by such person, who shall be
presumed to have relied on the provisions of this Article V in
undertaking or continuing any of the positions with the
corporation or other enterprise referred to in Section 5.01.
5.04. Limitation on Modification or Termination. No
modification or termination of this Article V shall be effected
which would impair any rights hereunder arising at any time out
of events occurring prior to such modification or termination.
5.05. Non-Exclusive Bylaw. This Article V is not intended
to be exclusive and accordingly shall not be construed as
impairing in any way the power and authority of the corporation,
to the extent legally permissible without regard to this
Article V, in its discretion to indemnify or agree to indemnify,
or to purchase insurance indemnifying, any employee, agent or
other person.
ARTICLE VI.
OTHER INDEMNIFICATION PROVISIONS
6.01. Indemnification for Successful Defense. Within
twenty (20) days after receipt of a written request pursuant to
Section 6.03, the corporation shall indemnify a director or
officer, to the extent he or she has been successful on the
merits or otherwise in the defense of a proceeding, for all
reasonable expenses incurred in the proceeding if the director or
officer was a party because he or she is a director or officer of
the corporation.
6.02. Other Indemnification. (a) In cases not included
under Section 6.01, the corporation shall indemnify a director or
officer against all liabilities and expenses incurred by the
director or officer in a proceeding to which the director or
officer was a party because he or she is a director or officer of
the corporation, unless liability was incurred because the
director or officer breached or failed to perform a duty he or
she owes to the corporation and the breach or failure to perform
constitutes any of the following:
(1) A willful failure to deal fairly with the
corporation or its stockholders in connection with a matter
in which the director or officer has a material conflict of
interest.
(2) A violation of 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.
(3) A transaction from which the director or officer
derived an improper personal profit.
(4) Willful misconduct.
(b) Determination of whether indemnification is required
under this Section or Article V shall be made pursuant to
Section 6.05.
(c) The termination of a proceeding by judgment, order,
settlement or conviction, or upon a plea of no contest or an
equivalent plea, does not, by itself, create a presumption that
indemnification of the director or officer is not required under
this Section.
6.03. Written Request. A director or officer who seeks
indemnification under Article V or Sections 6.01 or 6.02 shall
make a written request to the corporation.
6.04. Nonduplication. The corporation shall not indemnify
a director or officer under Sections 6.01 or 6.02 if the director
or officer has previously received indemnification or allowance
of expenses from any person, including the corporation, in
connection with the same proceeding. However, the director or
officer has no duty to look to any other person for
indemnification.
6.05. Determination of Right to Indemnification.
(a) Unless otherwise provided by the Articles of Incorporation or
by written agreement between the director or officer and the
corporation, the director or officer seeking indemnification
under Article V or Section 6.02 shall select one of the following
means for determining his or her right to indemnification:
(1) By a majority vote of a quorum of the Board of
Directors consisting of directors not at the time parties to
the same or related proceedings. If a quorum of
disinterested directors cannot be obtained, by majority vote
of a committee duly appointed by the Board of Directors and
consisting solely of two (2) or more directors who are not
at the time parties to the same or related proceedings.
Directors who are parties to the same or related proceedings
may participate in the designation of members of the
committee.
(2) By independent legal counsel selected by a quorum
of the Board of Directors or its committee in the manner
prescribed in sub. (1) or, if unable to obtain such a quorum
or committee, by a majority vote of the full Board of
Directors, including directors who are parties to the same
or related proceedings.
(3) By a panel of three (3) arbitrators consisting of
one arbitrator selected by those directors entitled under
sub. (2) to select independent legal counsel, one arbitrator
selected by the director or officer seeking indemnification
and one arbitrator selected by the two (2) arbitrators
previously selected.
(4) By an affirmative vote of shares represented at a
meeting of stockholders at which a quorum of the voting
group entitled to vote thereon is present. Shares owned by,
or voted under the control of, persons who are at the time
parties to the same or related proceedings, whether as
plaintiffs or defendants or in any other capacity, may not
be voted in making the determination.
(5) By a court under Section 6.08.
(6) By any other method provided for in any additional
right to indemnification.
(b) In any determination under (a), the burden of proof is
on the corporation to prove by clear and convincing evidence that
indemnification under Article V or Section 6.02 should not be
allowed.
(c) A written determination as to a director's or officer's
indemnification under Article V or Section 6.02 shall be
submitted to both the corporation and the director or officer
within 60 days of the selection made under (a).
(d) If it is determined that indemnification is required
under Article V or Section 6.02, the corporation shall pay all
liabilities and expenses not prohibited by Section 6.04 within
ten (10) days after receipt of the written determination under
(c). The corporation shall also pay all expenses incurred by the
director or officer in the determination process under (a).
6.06. Advance of Expenses. Within ten (10) days after
receipt of a written request by a director or officer who is a
party to a proceeding, the corporation shall pay or reimburse his
or her reasonable expenses as incurred if the director or officer
provides the corporation with all of the following:
(1) A written affirmation of his or her good faith
belief that he or she has not breached or failed to perform
his or her duties to the corporation.
(2) A written undertaking, executed personally or on
his or her behalf, to repay the allowance to the extent that
it is ultimately determined under Section 6.05 that
indemnification under Article V or Section 6.02 is not
required and that indemnification is not ordered by a court
under Section 6.08(b)(2). The undertaking under this
subsection shall be an unlimited general obligation of the
director or officer and may be accepted without reference to
his or her ability to repay the allowance. The undertaking
may be secured or unsecured.
6.07. Limitations on Indemnification. (a) Regardless of
the existence or rights under these Bylaws and additional rights
to indemnification under any agreement with the corporation, the
corporation shall not indemnify a director or officer, or permit
a director or officer to retain any allowance of expenses, unless
it is determined by or on behalf of the corporation that the
director or officer did not breach or fail to perform a duty he
or she owes to the corporation which constitutes conduct under
Section 6.02(a)(1), (2), (3) or (4). A director or officer who
is a party to the same or related proceedings for which
indemnification or an allowance of expenses is sought may not
participate in a determination under this subsection.
(b) Sections 6.01 to 6.12 do not affect the corporation's
power to pay or reimburse expenses incurred by a director or
officer in any of the following circumstances.
(1) As a witness in a proceeding to which he or she is
not a party.
(2) As a plaintiff or petitioner in a proceeding
because he or she is or was an employee, agent, director or
officer of the corporation.
6.08. Court-Ordered Indemnification. (a) Except as
provided otherwise by written agreement between the director or
officer and the corporation, a director or officer who is a party
to a proceeding may apply for indemnification to the court
conducting the proceeding or to another court of competent
jurisdiction. Application shall be made for an initial
determination by the court under Section 6.05(a)(5) or for review
by the court of an adverse determination under
Section 6.05(a) (1), (2), (3), (4) or (6). After receipt of an
application, the court shall give any notice it considers
necessary.
(b) The court shall order indemnification if it determines
any of the following:
(1) That the director or officer is entitled to
indemnification under Article V or Sections 6.01 or 6.02.
(2) That the director or officer is fairly and
reasonably entitled to indemnification in view of all the
relevant circumstances, regardless of whether
indemnification is required under Article V or Section 6.02.
(c) If the court determines under (b) that the director or
officer is entitled to indemnification, the corporation shall pay
the director's or officer's expenses incurred to obtain the
court-ordered indemnification.
6.09. Indemnification and Allowance of Expenses of
Employees and Agents. The corporation shall indemnify an
employee of the corporation who is not a director or officer of
the corporation, to the extent that he or she has been successful
on the merits or otherwise in defense of a proceeding, for all
reasonable expenses incurred in the proceeding if the employee
was a party because he or she was an employee of the corporation.
In addition, the corporation may indemnify and allow reasonable
expenses of an employee or agent who is not a director or officer
of the corporation to the extent provided by the Articles of
Incorporation or these Bylaws, by general or specific action of
the Board of Directors or by contract.
6.10. Insurance. The corporation may purchase and
maintain insurance on behalf of an individual who is an employee,
agent, director or officer of the corporation against liability
asserted against or incurred by the individual in his or her
capacity as an employee, agent, director or officer, regardless
of whether the corporation is required or authorized to indemnify
or allow expenses to the individual against the same liability
under Article V or Sections 6.01, 6.02, 6.06, 6.07 and 6.09.
6.11. Securities Law Claims. (a) Pursuant to the public
policy of the State of Wisconsin, the corporation shall provide
indemnification and allowance of expenses and may insure for any
liability incurred in connection with a proceeding involving
securities regulation described under (b) to the extent required
or permitted under Article V or Sections 6.01 to 6.10.
(b) Article V and Sections 6.01 to 6.10 apply, to the
extent applicable to any other proceeding, to any proceeding
involving a federal or state statute, rule or regulation
regulating the offer, sale or purchase of securities, securities
brokers or dealers, or investment companies or investment
advisers.
6.12. Liberal Construction. In order for the corporation
to obtain and retain qualified directors, officers and employees,
the foregoing provisions shall be liberally administered in order
to afford maximum indemnification of directors, officers and,
where Section 6.09 of these Bylaws applies, employees. The
indemnification above provided for shall be granted in all
applicable cases unless to do so would clearly contravene law,
controlling precedent or public policy.
ARTICLE VII.
CONTRACTS, CHECKS, NOTES, BONDS, ETC.
7.01. Contracts. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract
or execute or deliver any document or instrument, whether of
conveyance or otherwise, in the name of and on behalf of the
corporation, and such authorization may be general or confined to
specific instances.
7.02. Checks, Drafts, Etc. All checks and drafts on the
corporation's bank accounts and all bills of exchange and
promissory notes, and all acceptances, obligations and other
instruments for the payment of money, shall be signed or, in the
case of wire transfers, shall be authorized by such officer or
officers, employee or employees or agent or agents as shall be
thereunto authorized from time to time by the Board of Directors;
provided that checks drawn on the corporation's bank accounts may
bear the facsimile signature of such officer or officers,
employee or employees, or agent or agents as the Board of
Directors shall authorize; and provided further that in the case
of notes, bonds or debentures issued under a trust instrument of
the corporation and required to be signed by two officers of the
corporation, the signatures of either or both of such officers
may be in facsimile if specifically authorized and directed by
the Board of Directors of the corporation and if such notes,
bonds or debentures are required to be authenticated by a
corporate trustee which is a party to the trust instrument. In
case any such officer who has signed or whose facsimile signature
has been placed upon such instrument shall have ceased to be such
officer before such instrument is issued, it may be issued by the
corporation with the same effect as if such officer had not
ceased to be such at the date of its issue.
ARTICLE VIII.
FISCAL YEAR
The fiscal year of the corporation shall begin on the first
day of January in each year and shall end on the thirty-first day
of December following.
ARTICLE IX.
CORPORATE SEAL
The corporate seal shall have inscribed thereon the name of
the corporation and the words "Corporate Seal, Jan. 29, 1896."
ARTICLE X.
EFFECT OF HEADINGS
The descriptive headings and references to Articles and
Sections in these Bylaws were formulated, used and inserted
herein for convenience only and shall not be deemed to affect the
meaning or construction of any of the provisions hereof.
ARTICLE XI.
AMENDMENTS
11.01. By Stockholders. These Bylaws may be amended or
repealed and new Bylaws may be adopted by the stockholders by the
vote provided in Section 1.06 of these Bylaws except as
specifically provided below or in the Articles of Incorporation.
If authorized by the Articles of Incorporation, the stockholders
may adopt or amend a Bylaw that fixes a greater or lower quorum
requirement or a greater voting requirement for stockholders or
voting groups of stockholders than otherwise is provided in the
Wisconsin Business Corporation Law. The adoption or amendment of
a Bylaw that adds, changes or deletes a greater or lower quorum
requirement or a greater voting requirement for stockholders must
meet the same quorum requirement and be adopted by the same vote
and voting groups required to take action under the quorum and
voting requirement then in effect.
11.02. By Directors. Except as the Articles of
Incorporation may otherwise provide, these Bylaws may also be
amended or repealed and new Bylaws may be adopted by the Board of
Directors by the vote provided in Sections 2.10 and 2.11, but
(a) no Bylaw adopted by the stockholders shall be amended,
repealed or readopted by the Board of Directors if such Bylaw
provides that it may not be amended, repealed or readopted by the
Board of Directors and (b) a Bylaw adopted or amended by the
stockholders that fixes a greater or lower quorum requirement or
a greater voting requirement for the Board of Directors than
otherwise is provided in the Wisconsin Business Corporation Law
may not be amended or repealed by the Board of Directors unless
the Bylaw expressly provides that it may be amended or repealed
by a specified vote of the Board of Directors. Action by the
Board of Directors to adopt or amend a Bylaw that changes the
quorum or voting requirement for the Board of Directors must meet
the same quorum requirement and be adopted by the same vote
required to take action under the quorum and voting requirement
then in effect, unless a different voting requirement is
specified as provided by the preceding sentence. A Bylaw that
fixes a greater or lower quorum requirement or a greater voting
requirement for stockholders or voting groups of stockholders
than otherwise is provided in the Wisconsin Business Corporation
Law may not be adopted, amended or repealed by the Board of
Directors.
11.03. Implied Amendments. Any action taken or authorized
by the stockholders or by the Board of Directors, which would be
inconsistent with the Bylaws then in effect but is taken or
authorized by a vote that would be sufficient to amend the Bylaws
so that the Bylaws would be consistent with such action, shall be
given the same effect as though the Bylaws had been temporarily
amended or suspended so far, but only so far, as is necessary to
permit the specific action so taken or authorized.
11.04. Certain Voting Requirements Preserved. If the
corporation had a Bylaw in effect on December 31, 1990, that
establishes a greater shareholder voting requirement than one
required under the Wisconsin Business Corporation Law, that
voting requirement applies until the Bylaw is amended or
repealed.