1
Exhibit (3)-1
BYLAWS
of
WISCONSIN ELECTRIC POWER COMPANY
As Amended and Restated
January 31, 1996
2
TABLE OF CONTENTS
ARTICLE I. STOCKHOLDERS.............................................. 1
1.01 Annual Meeting....................................................... 1
1.02 Special Meetings..................................................... 1
1.03 Place of Meetings; Postponements and Adjournments.................... 1
1.04 Notices to Stockholders.............................................. 1
(a) Required Notice.................................................. 1
(b) Fundamental Transactions......................................... 2
1.05 Fixing of Record Date................................................ 2
1.06 Quorum and Voting Requirements....................................... 2
1.07 Conduct of Meetings.................................................. 3
1.08 Voting at Meetings................................................... 3
(a) Proxies; Balloting and Inspectors of Election.................... 3
(b) Proxies Upon Accrual of Special Right............................ 3
1.09 Stockholder Unanimous Consent Without a Meeting...................... 3
1.10 Stockholder Waiver of Notice......................................... 4
1.11 Notice of Stockholder Nomination(s) and/or Proposal(s)............... 4
ARTICLE II. BOARD OF DIRECTORS....................................... 5
2.01 Number............................................................... 5
2.02 Term of Office....................................................... 5
2.03 Election and Tenure.................................................. 5
2.04 Removal.............................................................. 6
2.05 Vacancies............................................................ 6
2.06 Regular Meetings..................................................... 6
2.07 Special Meetings..................................................... 6
2.08 Meetings by Telephone or Other Communication Technology.............. 6
2.09 Notice of Meetings................................................... 7
2.10 Quorum............................................................... 7
2.11 Manner of Acting..................................................... 7
2.12 Committees........................................................... 7
2.13 Compensation......................................................... 8
2.14 Presumption of Assent................................................ 8
2.15 Director Unanimous Consent Without a Meeting......................... 8
ARTICLE III. OFFICERS................................................ 9
3.01 Positions............................................................ 9
3.02 Resignation and Removal.............................................. 9
3.03 Vacancies............................................................ 9
3.04 Powers and Duties.................................................... 9
ARTICLE IV. CERTIFICATES FOR SHARES AND THEIR TRANSFER............... 9
4.01 Stock Certificates and Facsimile Signatures.......................... 9
4.02 Transfer of Stock.................................................... 10
4.03 Lost, Destroyed or Stolen Certificates............................... 10
4.04 Shares Without Certificates.......................................... 10
ARTICLE V. INDEMNIFICATION........................................... 11
5.01 Mandatory Indemnification............................................ 11
5.02 Certain Definitions.................................................. 11
5.03 Legal Enforceability................................................. 11
5.04 Limitation on Modification or Termination............................ 11
5.05 Non-Exclusive Bylaw.................................................. 11
ARTICLE VI. OTHER INDEMNIFICATION PROVISIONS......................... 12
6.01 Indemnification for Successful Defense............................... 12
6.02 Other Indemnification................................................ 12
6.03 Written Request...................................................... 12
6.04 Nonduplication....................................................... 12
6.05 Determination of Right to Indemnification............................ 12
-i-
3
6.06 Advance of Expenses.................................................. 13
6.07 Limitations on Indemnification....................................... 14
6.08 Court-Ordered Indemnification........................................ 14
6.09 Indemnification and Allowance of Expenses of Employees and Agents.... 14
6.10 Insurance............................................................ 15
6.11 Securities Law Claims................................................ 15
6.12 Liberal Construction................................................. 15
ARTICLE VII. CONTRACTS, CHECKS, NOTES, BONDS, ETC.................... 15
7.01 Contracts............................................................ 15
7.02 Checks, Drafts, Etc.................................................. 15
ARTICLE VIII. FISCAL YEAR............................................ 16
ARTICLE IX. CORPORATE SEAL........................................... 16
ARTICLE X. EFFECT OF HEADINGS........................................ 16
ARTICLE XI. AMENDMENTS............................................... 16
11.01 By Stockholders...................................................... 16
11.02 By Directors......................................................... 16
11.03 Implied Amendments................................................... 17
11.04 Certain Voting Requirements Preserved................................ 17
-ii-
4
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 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. [Old Bylaw I, Section 2.] 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 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 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 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. 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
-1-
5
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, or any 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
-2-
6
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 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 Secretary shall act as secretary of all
meetings of the stockholders, but, in the absence of the 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; Balloting and Inspectors of Election. At all meetings of
stockholders, a stockholder entitled to vote may vote in person or by proxy
appointed in writing by the stockholder or by his or her duly authorized
attorney-in-fact. 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 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 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. [Old Bylaw I, Section 5D.]
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.
-3-
7
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 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
-4-
8
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 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. [Art.
III.C.(6)(b) of Restated Articles]
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 Secretary of the
corporation.
-5-
9
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. [Old Bylaw II, Section 2, 2nd
Paragraph.]
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. [WBCL Section 180.0810(2),
replacing Old Bylaw II, Section 2, 1st Paragraph.]
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
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.
-6-
10
(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 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
-7-
11
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
-8-
12
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. Positions. The officers of the corporation shall include a
Chairman of the Board, a President, the number of Vice Presidents provided for
by the Board of Directors, a Treasurer, and a Secretary, each of whom 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. 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 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, shall be filled by the Board of Directors.
The Board of Directors may, from time to time, omit to elect 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 generally pertain to their
respective offices, 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. The
Treasurer and the Assistant Treasurers may be required to give bond for the
faithful discharge of their duties, in such sum and of such character as the
Board of Directors may from time to time prescribe.
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
-9-
13
facsimile signature by the Chief Executive Officer, the President or a Vice
President, and by the Secretary or an Assistant 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.
-10-
14
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.
-11-
15
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:
-12-
16
(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.
-13-
17
(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
-14-
18
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
-15-
19
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
-16-
20
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.
[WBCL, Section 180.1706(4).]
-17-