(Restated/approved 2/22/91)
(First Amendment 12/18/92)
(Second Amendment 2/17/93)
(Third Amendment 2/25/94)
(Fourth Amendment 2/24/95)
(Fifth Amendment 2/23/96)
(Sixth Amendment 4/29/98)
BY-LAWS
OF
GEHL COMPANY
ARTICLE I. OFFICES
1.01. Principal and Business Offices. The corporation may have
such principal and other business offices, either within or without the State
of Wisconsin, as the Board of Directors may designate or as the business of
the corporation may require from time to time.
1.02. Registered Office. The registered office of the
corporation required by the Wisconsin Business Corporation Law to be
maintained in the State of Wisconsin may be, but need not be, identical with
the principal office in the State of Wisconsin, and the address of the
registered office may be changed from time to time by the Board of Directors.
The business office of the registered agent of the corporation shall be
identical to such registered office.
ARTICLE II. SHAREHOLDERS
2.01. Annual Meeting. The annual meeting of shareholders (the
"Annual Meeting") shall be held each year at 7:00 P.M. (Central Time) on the
last Thursday in April, or at such other time and date as may be fixed by or
under the authority of the Board of Directors, for the purpose of electing
that number of directors equal to the number of directors in the class whose
term expires at the time of the Annual Meeting and for the transaction of such
other business as may properly come before the Annual Meeting in accordance
with Section 2.14 of these by-laws. If the day fixed for the Annual Meeting
is a legal holiday in the State of Wisconsin, such meeting shall be held on
the next succeeding business day. In fixing a meeting date for any Annual
Meeting, the Board of Directors may consider such factors as it deems relevant
within the good faith exercise of its business judgment.
2.02. Special Meetings.
(a) A special meeting of shareholders (a "Special Meeting") may be
called only by (i) the President or (ii) the Board of Directors and shall be
called by the President upon the demand, in accordance with this Section 2.02,
of the holders of record of shares representing at least 10% of all the votes
entitled to be cast on any issue proposed to be considered at the Special
Meeting.
(b) In order that the corporation may determine the shareholders
entitled to demand a Special Meeting, the Board of Directors may fix a record
date to determine the shareholders entitled to make such a demand (the "Demand
Record Date"). The Demand Record Date shall not precede the date upon which
the resolution fixing the Demand Record Date is adopted by the Board of
Directors and shall not be more than 10 days after the date upon which the
resolution fixing the Demand Record Date is adopted by the Board of Directors.
Any shareholder of record seeking to have shareholders demand a Special
Meeting shall, by sending written notice to the Secretary of the corporation
by hand or by certified or registered mail, return receipt requested, request
the Board of Directors to fix a Demand Record Date. The Board of Directors
shall promptly, but in all events within 10 days after the date on which a
valid request to fix a Demand Record Date is received, adopt a resolution
fixing the Demand Record Date and shall make a public announcement of such
Demand Record Date. If no Demand Record Date has been fixed by the Board of
Directors within 10 days after the date on which such request is received by
the Secretary, the Demand Record Date shall be the 10th day after the first
date on which a valid written request to set a Demand Record Date is received
by the Secretary. To be valid, such written request shall set forth the
purpose or purposes for which the Special Meeting is to be held, shall be
signed by one or more shareholders of record (or their duly authorized proxies
or other representatives), shall bear the date of signature of each such
shareholder (or proxy or other representative) and shall set forth all
information about each such shareholder and about the beneficial owner or
owners, if any, on whose behalf the request is made that would be required to
be set forth in a shareholder's notice described in paragraph (a)(ii) of
Section 2.14 of these by-laws.
(c) In order for a shareholder or shareholders to demand a Special
Meeting, a written demand or demands for a Special Meeting by the holders of
record as of the Demand Record Date of shares representing at least 10% of all
the votes entitled to be cast on any issue proposed to be considered at the
Special Meeting must be delivered to the corporation. To be valid, each
written demand by a shareholder for a Special Meeting shall set forth the
specific purpose or purposes for which the Special Meeting is to be held
(which purpose or purposes shall be limited to the purpose or purposes set
forth in the written request to set a Demand Record Date received by the
corporation pursuant to paragraph (b) of this Section 2.02), shall be signed
by one or more persons who as of the Demand Record Date are shareholders of
record (or their duly authorized proxies or other representatives), shall bear
the date of signature of each such shareholder (or proxy or other
representative), and shall set forth the name and address, as they appear in
the corporation's books, of each shareholder signing such demand and the class
and number of shares of the corporation which are owned of record and
beneficially by each such shareholder, shall be sent to the Secretary by hand
or by certified or registered mail, return receipt requested, and shall be
received by the Secretary within 70 days after the Demand Record Date.
(d) The corporation shall not be required to call a Special Meeting
upon shareholder demand unless, in addition to the documents required by
paragraph (c) of this Section 2.02, the Secretary receives a written agreement
signed by each Soliciting Shareholder (as defined below), pursuant to which
each Soliciting Shareholder, jointly and severally, agrees to pay the
corporation's costs of holding the Special Meeting, including the costs of
preparing and mailing proxy materials for the corporation's own solicitation,
provided that if each of the resolutions introduced by any Soliciting
Shareholder at such meeting is adopted, and each of the individuals nominated
by or on behalf of any Soliciting Shareholder for election as director at such
meeting is elected, then the Soliciting Shareholders shall not be required to
pay such costs. For purposes of this paragraph (d), the following terms shall
have the meanings set forth below:
(i) "Affiliate" of any Person (as defined herein) shall mean
any Person controlling, controlled by or under common control with
such first Person.
(ii) "Participant" shall have the meaning assigned to such term
in Rule 14a-11 promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act").
(iii) "Person" shall mean any individual, firm,
corporation, partnership, joint venture, association, trust,
unincorporated organization or other entity.
(iv) "Proxy" shall have the meaning assigned to such term in
Rule 14a-1 promulgated under the Exchange Act.
(v) "Solicitation" shall have the meaning assigned to such
term in Rule 14a-11 promulgated under the Exchange Act.
(vi) "Soliciting Shareholder" shall mean, with respect to any
Special Meeting demanded by a shareholder or shareholders, any of
the following Persons:
(A) if the number of shareholders signing the demand or
demands of meeting delivered to the corporation pursuant to
paragraph (c) of this Section 2.02 is 10 or fewer, each
shareholder signing any such demand;
(B) if the number of shareholders signing the demand or
demands of meeting delivered to the corporation pursuant to
paragraph (c) of this Section 2.02 is more than 10, each Person
who either (I) was a Participant in any Solicitation of such
demand or demands or (II) at the time of the delivery to the
corporation of the documents described in paragraph (c) of this
Section 2.02 had engaged or intended to engage in any
Solicitation of Proxies for use at such Special Meeting (other
than a Solicitation of Proxies on behalf of the corporation);
or
(C) any Affiliate of a Soliciting Shareholder, if a
majority of the directors then in office determine, reasonably
and in good faith, that such Affiliate should be required to
sign the written notice described in paragraph (c) of this
Section 2.02 and/or the written agreement described in this
paragraph (d) in order to prevent the purposes of this Section
2.02 from being evaded.
(e) Except as provided in the following sentence, any Special
Meeting shall be held at such hour and day as may be designated by whichever
of the President or the Board of Directors shall have called such meeting. In
the case of any Special Meeting called by the President upon the demand of
shareholders (a "Demand Special Meeting"), such meeting shall be held at such
hour and day as may be designated by the Board of Directors; provided,
however, that the date of any Demand Special Meeting shall be not more than 70
days after the Meeting Record Date (as defined in Section 2.05 hereof); and
provided further that in the event that the directors then in office fail to
designate an hour and date for a Demand Special Meeting within 10 days after
the date that valid written demands for such meeting by the holders of record
as of the Demand Record Date of shares representing at least 10% of all the
votes entitled to be cast on each issue proposed to be considered at the
Special Meeting are delivered to the corporation (the "Delivery Date"), then
such meeting shall be held at 2:00 P.M. (Central Time) on the 100th day after
the Delivery Date or, if such 100th day is not a Business Day (as defined
below), on the first preceding Business Day. In fixing a meeting date for any
Special Meeting, the President or the Board of Directors may consider such
factors as he or it deems relevant within the good faith exercise of his or
its business judgment, including, without limitation, the nature of the action
proposed to be taken, the facts and circumstances surrounding any demand for
such meeting, and any plan of the Board of Directors to call an Annual Meeting
or a Special Meeting for the conduct of related business.
(f) The corporation may engage regionally or nationally recognized
independent inspectors of elections to act as an agent of the corporation for
the purpose of promptly performing a ministerial review of the validity of any
purported written demand or demands for a Special Meeting received by the
Secretary. For the purpose of permitting the inspectors to perform such
review, no purported demand shall be deemed to have been delivered to the
corporation until the earlier of (i) 5 Business Days following receipt by the
Secretary of such purported demand and (ii) such date as the independent
inspectors certify to the corporation that the valid demands received by the
Secretary represent at least 10% of all the votes entitled to be cast on each
issue proposed to be considered at the Special Meeting. Nothing contained in
this paragraph (f) shall in any way be construed to suggest or imply that the
Board of Directors or any shareholder shall not be entitled to contest the
validity of any demand, whether during or after such 5 Business Day period, or
to take any other action (including, without limitation, the commencement,
prosecution or defense of any litigation with respect thereto).
(g) For purposes of these by-laws, "Business Day" shall mean any
day other than a Saturday, a Sunday or a day on which banking institutions in
the State of Wisconsin are authorized or obligated by law or executive order
to close.
2.03. Place of Meeting. The Board of Directors or the President
may designate any place, either within or without the State of Wisconsin, as
the place of meeting for any Annual Meeting or for any Special Meeting, or for
any postponement thereof. If no designation is made, the place of meeting
shall be the principal office of the corporation in the State of Wisconsin.
Any meeting may be adjourned to reconvene at any place designated by vote of
the Board of Directors or by the President.
2.04. Notice of Meeting. Written or printed notice stating the
place, day and hour of any Annual Meeting or Special Meeting shall be
delivered not less than 10 days (unless a longer period is required by the
Wisconsin Business Corporation Law) nor more than 70 days, before the date of
such meeting, either personally or by mail, by or at the direction of the
Secretary to each shareholder of record entitled to vote at such meeting and
to other shareholders as may be required by the Wisconsin Business Corporation
Law. In the event of any Demand Special Meeting, such notice of meeting shall
be sent not more than 30 days after the Delivery Date. If mailed, notice
pursuant to this Section 2.04 shall be deemed to be effective when deposited
in the United States mail, addressed to the shareholder at his address as it
appears on the stock transfer books of the corporation, with postage thereon
prepaid. Unless otherwise required by the Wisconsin Business Corporation Law
or the restated articles of incorporation, a notice of an Annual Meeting need
not include a description of the purpose for which the meeting is called. In
the case of any Special Meeting, (a) the notice of meeting shall describe any
business that the Board of Directors shall have theretofore determined to
bring before the meeting and (b) in the case of a Demand Special Meeting, the
notice of meeting (i) shall describe any business set forth in the statement
of purpose of the demands received by the corporation in accordance with
Section 2.02 of these by-laws and (ii) shall contain all of the information
required in the notice received by the corporation in accordance with Section
2.14(b) of these by-laws. If an Annual Meeting or Special Meeting is
adjourned to a different date, time or place, the corporation shall not be
required to give notice of the new date, time or place if the new date, time
or place is announced at the meeting before adjournment; provided, however,
that if a new Meeting Record Date for an adjourned meeting is or must be
fixed, the corporation shall give notice of the adjourned meeting to persons
who are shareholders as of the new Meeting Record Date.
2.05. Fixing of Record Date. The Board of Directors may fix a
future date not less than 10 days and not more than 70 days prior to the date
of any Annual Meeting or Special Meeting as the record date for the
determination of shareholders entitled to notice of, or to vote at, such
meeting (the "Meeting Record Date"). In the case of any Demand Special
Meeting, (i) the Meeting Record Date shall be not later than the 30th day
after the Delivery Date and (ii) if the Board of Directors fails to fix the
Meeting Record Date within 30 days after the Delivery Date, then the close of
business on such 30th day shall be the Meeting Record Date. The shareholders
of record on the Meeting Record Date shall be the shareholders entitled to
notice of and to vote at the meeting. Except as provided by the Wisconsin
Business Corporation Law for a court-ordered adjournment, a determination of
shareholders entitled to notice of or to vote at any Annual Meeting or Special
Meeting is effective for any adjournment of such meeting unless the Board of
Directors fixes a new Meeting Record Date, which it shall do if the meeting is
adjourned to a date more than 120 days after the date fixed for the original
meeting. The Board of Directors may also fix a future date as the record date
for the purpose of determining shareholders entitled to take any other action
or determining shareholders for any other purpose. Such record date shall be
not more than 70 days prior to the date on which the particular action,
requiring such determination of shareholders, is to be taken. The record date
for determining shareholders entitled to a distribution (other than a
distribution involving a purchase, redemption or other acquisition of the
corporation's shares) or a share dividend is the date on which the Board of
Directors authorizes the distribution or share dividend, as the case may be,
unless the Board of Directors fixes a different record date.
2.06. Voting Lists. After a Meeting Record Date has been fixed,
the corporation shall prepare a list of the names of all of the shareholders
entitled to notice of the meeting. The list shall be arranged by class or
series of shares, if any, and show the address of and number of shares held by
each shareholder. Such list shall be available for inspection by any
shareholder, beginning two business days after notice of the meeting is given
for which the list was prepared and continuing to the date of the meeting, at
the corporation's principal office or at a place identified in the meeting
notice in the city where the meeting will be held. A shareholder or his or
her agent may, on written demand, inspect and, subject to the limitations
imposed by the Wisconsin Business Corporation Law, copy the list, during
regular business hours and at his or her expense, during the period that it is
available for inspection pursuant to this Section 2.06. The corporation shall
make the shareholders' list available at the meeting and any shareholder or
his or her agent or attorney may inspect the list at any time during the
meeting or any adjournment thereof. Refusal or failure to prepare or make
available the shareholders' list shall not affect the validity of any action
taken at an Annual Meeting or Special Meeting.
2.07. Quorum and Voting Requirements; Postponements;
Adjournments.
(a) Shares entitled to vote as a separate voting group may take
action on a matter at any Annual Meeting or Special Meeting only if a quorum
of those shares exists with respect to that matter. If the corporation has
only one class of stock outstanding, such class shall constitute a separate
voting group for purposes of this Section 2.07. Except as otherwise provided
in the restated articles of incorporation or the Wisconsin Business
Corporation Law, a majority of the votes entitled to be cast on the matter
shall constitute a quorum of the voting group for action on that matter. Once
a share is represented for any purpose at any Annual Meeting or Special
Meeting, other than for the purpose of objecting to holding the meeting or
transacting business at the meeting, it is considered present for purposes of
determining whether a quorum exists for the remainder of the meeting and for
any adjournment of that meeting unless a new Meeting Record Date is or must be
set for the adjourned meeting. If a quorum exists, except in the case of the
election of directors, action on a matter shall be approved if the votes cast
within the voting group favoring the action exceed the votes cast opposing the
action, unless the restated articles of incorporation, these by-laws or the
Wisconsin Business Corporation Law requires a greater number of affirmative
votes. Unless otherwise provided in the restated articles of incorporation,
each director shall be elected by a plurality of the votes cast by the shares
entitled to vote in the election of directors at any Annual Meeting or Special
Meeting at which a quorum is present.
(b) The Board of Directors acting by resolution may postpone and
reschedule any previously scheduled Annual Meeting or Special Meeting;
provided, however, that a Demand Special Meeting shall not be postponed beyond
the 100th day following the Delivery Date. Any Annual Meeting or Special
Meeting may be adjourned from time to time, whether or not there is a quorum,
(i) at any time, upon a resolution of shareholders if the votes cast in favor
of such resolution by the holders of shares of each voting group entitled to
vote on any matter theretofore properly brought before the meeting exceed the
number of votes cast against such resolution by the holders of shares of each
such voting group or (ii) at any time prior to the transaction of any business
at such meeting, by the President or pursuant to a resolution of the Board of
Directors. No notice of the time and place of adjourned meetings need be
given except as required by the Wisconsin Business Corporation Law. At any
adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally notified.
2.08. Conduct of Meetings. The President, and in his absence a
Vice-President in the order provided under Section 4.06, and in their absence,
any person chosen by the shareholders present shall call any Annual Meeting or
Special Meeting to order and shall act as chairman of such meeting, and the
Secretary of the corporation shall act as secretary of all meetings of the
shareholders, but, in the absence of the Secretary, the presiding officer may
appoint any other person to act as secretary of the meeting.
2.09. Proxies. At any Annual Meeting or Special Meeting, a
shareholder entitled to vote may vote in person or by proxy. A shareholder
may appoint a proxy to vote or otherwise act for the shareholder by signing an
appointment form, either personally or by his attorney-in-fact. An
appointment of a proxy is effective when received by the Secretary or other
officer or agent of the corporation authorized to tabulate votes. An
appointment is valid for 11 months from the date of its signing unless a
different period is expressly provided in the appointment form. Unless
otherwise provided in the proxy, a proxy may be revoked at any time before it
is voted, either by written notice filed with the Secretary or the acting
secretary of the meeting or by oral notice given by the shareholder to the
presiding officer during the meeting. The presence of a shareholder who has
filed his proxy shall not of itself constitute a revocation.
2.10. Voting of Shares. Each outstanding share shall be
entitled to one vote upon each matter submitted to a vote at an Annual Meeting
or Special Meeting, except to the extent that the voting rights of the shares
of any class or classes are enlarged, limited or denied by the Wisconsin
Business Corporation Law or by the restated articles of incorporation.
2.11. Acceptance of Instruments Showing Shareholder Action. If
the name signed on a vote, consent, waiver or proxy appointment corresponds to
the name of the shareholder, the corporation, if acting in good faith, may
accept the vote, consent, waiver or proxy appointment and give it effect as
the act of a shareholder. If the name signed on a vote, consent, waiver or
proxy appointment does not correspond to the name of a shareholder, the
corporation may accept the vote, consent, waiver or proxy appointment and give
it effect as the act of the shareholder if any of the following apply:
(a) The shareholder is an entity and the name signed purports to be
that of an officer or agent of the entity.
(b) The name purports to be that of a personal representative,
administrator, executor, guardian or conservator representing the shareholder
and, if the corporation requests, evidence of fiduciary status acceptable to
the corporation is presented with respect to the vote, consent, waiver or
proxy appointment.
(c) The name signed purports to be that of a receiver or trustee in
bankruptcy of the shareholder and, if the corporation requests, evidence of
this status acceptable to the corporation is presented with respect to the
vote, consent, waiver or proxy appointment.
(d) The name signed purports to be that of a pledgee, beneficial
owner, or attorney-in-fact of the shareholder and, if the corporation
requests, evidence acceptable to the corporation of the signatory's authority
to sign for the shareholder is presented with respect to the vote, consent,
waiver or proxy appointment.
(e) Two or more persons are the shareholder as co-tenants or
fiduciaries and the name signed purports to be the name of at least one of the
co-owners and the person signing appears to be acting on behalf of all
co-owners.
The corporation may reject a vote, consent, waiver or proxy
appointment if the Secretary or other officer or agent of the corporation who
is authorized to tabulate votes, acting in good faith, has reasonable basis
for doubt about the validity of the signature on it or about the signatory's
authority to sign for the shareholder.
2.12. Waiver of Notice by Shareholders. A shareholder may waive
any notice required by the Wisconsin Business Corporation Law, the restated
articles of incorporation or these by-laws before or after the date and time
stated in the notice. The waiver shall be in writing and signed by the
shareholder entitled to the notice, contain the same information that would
have been required in the notice under applicable provisions of the Wisconsin
Business Corporation Law (except that the time and place of meeting need not
be stated) and be delivered to the corporation for inclusion in the corporate
records. A shareholder's attendance at any Annual Meeting or Special Meeting,
in person or by proxy, waives objection to all of the following: (a) lack of
notice or defective notice of the meeting, unless the shareholder at the
beginning of the meeting or promptly upon arrival objects to holding the
meeting or transacting business at the meeting; and (b) consideration of a
particular matter at the meeting that is not within the purpose described in
the meeting notice, unless the shareholder objects to considering the matter
when it is presented.
2.13. Unanimous Consent without Meeting. Any action required or
permitted by the restated articles of incorporation or these by-laws or any
provision of the Wisconsin Business Corporation Law to be taken at an Annual
Meeting or Special Meeting, may be taken without a meeting if a consent in
writing, setting forth the action so taken, shall be signed by all of the
shareholders entitled to vote with respect to the subject matter thereof.
2.14. Notice of Shareholder Business and Nomination of
Directors.
(a) Annual Meetings.
(i) Nominations of persons for election to the Board of Directors
of the corporation and the proposal of business to be considered by the
shareholders may be made at an Annual Meeting (A) pursuant to the
corporation's notice of meeting, (B) by or at the direction of the Board
of Directors or (C) by any shareholder of the corporation who is a
shareholder of record at the time of giving of notice provided for in
this by-law and who is entitled to vote at the meeting and complies with
the notice procedures set forth in this Section 2.14.
(ii) For nominations or other business to be properly brought before
an Annual Meeting by a shareholder pursuant to clause (C) of paragraph
(a)(i) of this Section 2.14, the shareholder must have given timely
notice thereof in writing to the Secretary of the corporation. To be
timely, a shareholder's notice shall be received by the Secretary of the
corporation at the principal office of the corporation not less than 60
days nor more than 90 days prior to the last Thursday in the month of
April; provided, however, that in the event that the date of the Annual
Meeting is advanced by more than 30 days or delayed by more than 60 days
from the last Thursday in the month of April, notice by the shareholder
to be timely must be so received not earlier than the 90th day prior to
the date of such Annual Meeting and not later than the close of business
on the later of (x) the 60th day prior to such Annual Meeting and (y) the
10th day following the day on which public announcement of the date of
such meeting is first made. Such shareholder's notice shall be signed by
the shareholder of record who intends to make the nomination or introduce
the other business (or his duly authorized proxy or other
representative), shall bear the date of signature of such shareholder (or
proxy or other representative) and shall set forth: (A) the name and
address, as they appear on the corporation's books, of such shareholder
and the beneficial owner or owners, if any, on whose behalf the
nomination or proposal is made; (B) the class and number of shares of the
corporation which are beneficially owned by such shareholder or
beneficial owner or owners; (C) a representation that such shareholder is
a holder of record of shares of the corporation entitled to vote at such
meeting and intends to appear in person or by proxy at the meeting to
make the nomination or introduce the other business specified in the
notice; (D) in the case of any proposed nomination for election or
re-election as a director, (I) the name and residence address of the
person or persons to be nominated, (II) a description of all arrangements
or understandings between such shareholder or beneficial owner or owners
and each nominee and any other person or persons (naming such person or
persons) pursuant to which the nomination is to be made by such
shareholder, (III) such other information regarding each nominee proposed
by such shareholder as would be required to be disclosed in solicitations
of proxies for elections of directors, or would be otherwise required to
be disclosed, in each case pursuant to Regulation 14A under the Exchange
Act, including any information that would be required to be included in a
proxy statement filed pursuant to Regulation 14A had the nominee been
nominated by the Board of Directors and (IV) the written consent of each
nominee to be named in a proxy statement and to serve as a director of
the corporation if so elected; and (E) in the case of any other business
that such shareholder proposes to bring before the meeting, (I) a brief
description of the business desired to be brought before the meeting and,
if such business includes a proposal to amend these by-laws, the language
of the proposed amendment, (II) such shareholder's and beneficial owner's
or owners' reasons for conducting such business at the meeting and (III)
any material interest in such business of such shareholder and beneficial
owner or owners.
(iii) Notwithstanding anything in the second sentence of
paragraph (a)(ii) of this Section 2.14 to the contrary, in the event that
the number of directors to be elected to the Board of Directors of the
corporation is increased and there is no public announcement naming all
of the nominees for director or specifying the size of the increased
Board of Directors made by the corporation at least 70 days prior to the
last Thursday in the month of April, a shareholder's notice required by
this Section 2.14 shall also be considered timely, but only with respect
to nominees for any new positions created by such increase, if it shall
be received by the Secretary at the principal office of the corporation
not later than the close of business on the 10th day following the day on
which such public announcement is first made by the corporation.
(b) Special Meetings. Only such business shall be conducted at a
Special Meeting as shall have been described in the notice of meeting sent to
shareholders pursuant to Section 2.04 of these by-laws. Nominations of
persons for election to the Board of Directors may be made at a Special
Meeting at which directors are to be elected pursuant to such notice of
meeting (i) by or at the direction of the Board of Directors or (ii) by any
shareholder of the corporation who (A) is a shareholder of record at the time
of giving of such notice of meeting, (B) is entitled to vote at the meeting
and (C) complies with the notice procedures set forth in this Section 2.14.
Any shareholder desiring to nominate persons for election to the Board of
Directors at such a Special Meeting shall cause a written notice to be
received by the Secretary of the corporation at the principal office of the
corporation not earlier than 90 days prior to such Special Meeting and not
later than the close of business on the later of (x) the 60th day prior to
such Special Meeting and (y) the 10th day following the day on which public
announcement is first made of the date of such Special Meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting.
Such written notice shall be signed by the shareholder of record who intends
to make the nomination (or his duly authorized proxy or other representative),
shall bear the date of signature of such shareholder (or proxy or other
representative) and shall set forth: (A) the name and address, as they appear
on the corporation's books, of such shareholder and the beneficial owner or
owners, if any, on whose behalf the nomination is made; (B) the class and
number of shares of the corporation which are beneficially owned by such
shareholder or beneficial owner or owners; (C) a representation that such
shareholder is a holder of record of shares of the corporation entitled to
vote at such meeting and intends to appear in person or by proxy at the
meeting to make the nomination specified in the notice; (D) the name and
residence address of the person or persons to be nominated; (E) a description
of all arrangements or understandings between such shareholder or beneficial
owner or owners and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination is to be made by such
shareholder; (F) such other information regarding each nominee proposed by
such shareholder as would be required to be disclosed in solicitations of
proxies for elections of directors, or would be otherwise required to be
disclosed, in each case pursuant to Regulation 14A under the Exchange Act,
including any information that would be required to be included in a proxy
statement filed pursuant to Regulation 14A had the nominee been nominated by
the Board of Directors; and (G) the written consent of each nominee to be
named in a proxy statement and to serve as a director of the corporation if so
elected.
(c) General.
(i) Only persons who are nominated in accordance with the
procedures set forth in this Section 2.14 shall be eligible to serve as
directors. Only such business shall be conducted at an Annual Meeting or
Special Meeting as shall have been brought before such meeting in
accordance with the procedures set forth in this Section 2.14. The
chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought
before the meeting was made in accordance with the procedures set forth
in this Section 2.14 and, if any proposed nomination or business is not
in compliance with this Section 2.14, to declare that such defective
proposal shall be disregarded.
(ii) For purposes of this Section 2.14, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News
Service, Associated Press or comparable national news service or in a
document publicly filed by the corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange
Act.
(iii) Notwithstanding the foregoing provisions of this Section
2.14, a shareholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with respect to
the matters set forth in this Section 2.14. Nothing in this Section 2.14
shall be deemed to limit the corporation's obligation to include
shareholder proposals in its proxy statement if such inclusion is
required by Rule 14a-8 under the Exchange Act.
ARTICLE III. BOARD OF DIRECTORS
3.01. General Powers and Number. All corporate powers shall be
exercised by or under the authority of, and the business and affairs of the
corporation shall be managed under the direction of its Board of Directors.
The number of directors of the corporation shall be nine (9), divided into
three (3) classes: Class I - three (3) directors; Class II - three (3)
directors; Class III -three (3) directors.
3.02. Term and Qualifications. At each Annual Meeting the
successors to the class of directors whose terms shall expire at the time of
such Annual Meeting shall be elected to hold office until the third succeeding
Annual Meeting of shareholders, and until their successors are duly elected
and qualified. A director may resign at any time by delivering written notice
which complies with the Wisconsin Business Corporation Law to the Chairman of
the Board or to the corporation. Directors need not be residents of the State
of Wisconsin or shareholders of the corporation.
3.03. Nominations. Nominations for the election of directors
may only be made in accordance with the requirements of Section 2.14 hereof,
which requirements are hereby incorporated by reference in this Section 3.03.
3.04. Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this by-law immediately
after the Annual Meeting, and each adjourned session thereof. The place of
such regular meeting shall be the same as the place of the Annual Meeting
which precedes it, or such other suitable place as may be
announced at such Annual Meeting. The Board of Directors may provide, by
resolution, the time and place, either within or without the State of
Wisconsin, for the holding of additional regular meetings without other notice
than such resolution.
3.05. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the President, Secretary or
any two directors. The President or Secretary may fix any place, either
within or without the State of Wisconsin, as the place for holding any special
meeting of the Board of Directors, and if no other place is fixed, the place
of meeting shall be the principal office of the corporation in the State of
Wisconsin.
3.06. Notice; Waiver. Notice of each meeting of the Board of
Directors (unless otherwise provided in or pursuant to Section 3.04) shall be
given by written notice delivered or communicated in person, by telegram,
facsimile or other form of wire or wireless communication, or by mail or
private carrier, to each director at his business address or at such other
address as such director shall have designated in writing filed with the
Secretary, in each case not less than 48 hours prior to the time of the
meeting. If mailed, such notice shall be deemed to be effective when
deposited in the United States mail so addressed, with postage thereon
prepaid. If notice be given by telegram, such notice shall be deemed to be
effective when the telegram is delivered to the telegraph company. If notice
is given by private carrier, such notice shall be deemed to be effective when
the notice is delivered to the private carrier. Whenever any notice whatever
is required to be given to any director of the corporation under the restated
articles of incorporation or these by-laws or any provision of the Wisconsin
Business Corporation Law, a waiver thereof in writing, signed at any time,
whether before or after the time of meeting, by the director entitled to such
notice, shall be deemed equivalent to the giving of such notice. The
corporation shall retain any such waiver as part of the permanent corporate
records. A director's attendance at or participation in a meeting waives any
required notice to him of the meeting unless the director at the beginning of
the meeting or promptly upon his arrival objects to holding the meeting or
transacting business at the meeting and does not thereafter vote for or assent
to action taken at the meeting. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the Board of Directors need
be specified in the notice or waiver of notice of such meeting.
3.07. Quorum. Except as otherwise provided by the Wisconsin
Business Corporation Law or by the restated articles of incorporation or these
by-laws, a majority of the number of directors set forth in Section 3.01 shall
constitute a quorum for the transaction of business at any meeting of the
Board of Directors, but a majority of the directors present (though less than
such quorum) may adjourn the meeting from time to time without further notice.
3.08. Manner of Acting. The act of the majority of the
directors present at a meeting at which a quorum is present shall be the act
of the Board of Directors, unless the act of a greater number is required by
the Wisconsin Business Corporation Law or by the restated articles of
incorporation or these by-laws.
3.09. Conduct of Meetings. The Chairman of the Board, and in
his absence, the President, and in his absence, a Vice-President in the order
provided under Section 4.06, and in their absence, any director chosen by the
directors present, shall call meetings of the Board of Directors to order and
shall act as chairman of the meeting. The Secretary of the corporation shall
act as secretary of all meetings of the Board of Directors, but in the absence
of the Secretary, the presiding officer may appoint any Assistant Secretary or
any director or any other person present to act as secretary of the meeting.
Minutes of any regular or special meeting of the Board of Directors shall be
prepared and distributed to each director.
3.10. Compensation. The Board of Directors, by affirmative vote
of a majority of the directors then in office, and irrespective of any
personal interest of any of its members, may establish reasonable compensation
of all directors for services to the corporation as directors, officers or
otherwise, or may delegate such authority to an appropriate committee. The
Board of Directors also shall have authority to provide for or to delegate
authority to an appropriate committee to provide for reasonable pensions,
disability or death benefits, and other benefits or payments, to directors,
officers and employees and to their estates, families, dependents or
beneficiaries on account of prior services rendered by such directors,
officers and employees to the corporation.
3.11. Presumption of Assent. A director of the corporation who
is present at a meeting of the Board of Directors or a committee thereof of
which he is a member at which action on any corporate matter is taken shall be
presumed to have assented to the action taken unless any of the following
occurs: (a) the director objects at the beginning of the meeting or promptly
upon his arrival to holding the meeting or transacting business at the
meeting; (b) the director's dissent or abstention from the action taken is
entered in the minutes of the meeting; or (c) the director delivers written
notice that complies with the Wisconsin Business Corporation Law of his
dissent or abstention to the presiding officer of the meeting before its
adjournment or to the corporation immediately after adjournment of the
meeting. Such right to dissent or abstain shall not apply to a director who
voted in favor of such action.
3.12. Committees. The Board of Directors by resolution adopted
by the affirmative vote of a majority of the number of directors set forth in
Section 3.01 may create one or more committees, appoint members of the Board
of Directors to serve on the committees and designate other members of the
Board of Directors to serve as alternates. Alternate members of a committee
shall take the place of any absent member or members at any meeting of such
committee upon request of the President or upon request of the chairman of
such meeting. Each committee shall have two or more members who shall, unless
otherwise provided by the Board of Directors, serve at the pleasure of the
Board of Directors. A committee may be authorized to exercise the authority
of the Board of Directors, except that a committee may not do any of the
following: (a) authorize distributions; (b) approve or propose to
shareholders action that the Wisconsin Business Corporation Law requires to be
approved by shareholders; (c) fill vacancies on the Board of Directors or,
unless the Board of Directors provides by resolution that vacancies on a
committee shall be filled by the affirmative vote of the remaining committee
members, on any Board committee; (d) amend the corporation's restated articles
of incorporation; (e) adopt, amend or repeal by-laws; (f) approve a plan of
merger not requiring shareholder approval; (g) authorize or approve
reacquisition of shares, except according to a formula or method prescribed by
the Board of Directors; and (h) authorize or approve the issuance or sale or
contract for sale of shares, or determine the designation and relative rights,
preferences and limitations of a class or series of shares, except that the
Board of Directors may authorize a committee to do so within limits prescribed
by the Board of Directors. Unless otherwise provided by the Board of
Directors in creating the committee, a committee may employ counsel,
accountants and other consultants to assist it in the exercise of its
authority.
3.13. Telephonic Meetings. Except as herein provided and
notwithstanding any place set forth in the notice of the meeting or these
by-laws, members of the Board of Directors (and any committee thereof) may
participate in regular or special meetings by, or through the use of, any
means of communication by which all participants may simultaneously hear each
other, such as by conference telephone. If a meeting is conducted by such
means, then at the commencement of such meeting the presiding officer shall
inform the participating directors that a meeting is taking place at which
official business may be transacted. Any participant in a meeting by such
means shall be deemed present in person at such meeting. If action is to be
taken at any meeting held by such means on any of the following: (a) a plan
of merger or share exchange; (b) a sale, lease, exchange or other disposition
of substantial property or assets of the corporation; (c) a voluntary
dissolution or the revocation of voluntary dissolution proceedings; or (d) a
filing for bankruptcy, then the identity of each director participating in
such meeting must be verified by the disclosure at such meeting by each such
director of each such director's social security number to the secretary of
the meeting before a vote may be taken on any of the foregoing matters. For
purposes of the preceding clause (b), the phrase "sale, lease, exchange or
other disposition of substantial property or assets" shall mean any sale,
lease, exchange or other disposition of property or assets of the corporation
having a net book value equal to 10% or more of the net book value of the
total assets of the corporation on and as of the close of the fiscal year last
ended prior to the date of such meeting and as to which financial statements
of the corporation have been prepared. Notwithstanding the foregoing, no
action may be taken at any meeting held by such means on any particular matter
which the presiding officer determines, in his sole discretion, to be
inappropriate under the circumstances for action at a meeting held by such
means. Such determination shall be made and announced in advance of such
meeting.
3.14. Unanimous Consent without Meeting. Any action required or
permitted by the restated articles of incorporation or these by-laws or any
provision of the Wisconsin Business Corporation Law to be taken by the Board
of Directors (or any committee thereof) at a meeting may be taken without a
meeting if a consent in writing, setting forth the action so taken, shall be
signed by all members of the Board of Directors or of the committee, as the
case may be, then in office. Such action shall be effective when the last
director or committee member signs the consent, unless the consent specifies a
different effective date.
ARTICLE IV. OFFICERS
4.01. Number. The principal officers of the corporation shall
be a Chairman of the Board, a President, such number of Vice-Presidents as the
Board of Directors shall elect from time to time by affirmative vote of a
majority of the number of directors present at a meeting at which a quorum is
in attendance, a Secretary, and a Treasurer, each of whom shall be elected by
the Board of Directors. Such other officers and assistant officers as may be
deemed necessary may be elected or appointed by the Board of Directors. The
Board of Directors may also authorize any duly appointed officer to appoint
one or more officers or assistant officers. Any two or more offices may be
held by the same person.
4.02. Election and Term of Office. The officers of the
corporation to be elected by the Board of Directors shall be elected annually
by the Board of Directors at the first meeting of the Board of Directors held
after each Annual Meeting. If the election of officers shall not be held at
such meeting, such election shall be held as soon thereafter as conveniently
may be. Each officer shall hold office until his successor shall have been
duly elected or until his prior death, resignation or removal.
4.03. Removal; Vacancies. The Board of Directors may remove any
officer and, unless restricted by the Board of Directors or these by-laws, an
officer may remove any officer or assistant officer appointed by that officer,
at any time, with or without cause and notwithstanding the contract rights, if
any, of the officer removed. Election or appointment shall not of itself
create contract rights. An officer may resign at any time by delivering
notice to the corporation that complies with the Wisconsin Business
Corporation Law. The resignation shall be effective when the notice is
delivered, unless the notice specifies a later effective date and the
corporation accepts the later effective date. A vacancy in any principal
office because of death, resignation, removal, disqualification or otherwise,
shall be filled by the Board of Directors for the unexpired portion of the
term. If a resignation of an officer is effective at a later date as
contemplated by this Section 4.03, the Board of Directors may fill the pending
vacancy before the effective date if the Board provides that the successor may
not take office until the effective date.
4.04. Chairman of the Board. The Chairman of the Board shall,
when present, preside at all meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors from
time to time.
4.05. President. The President shall be the principal executive
officer of the corporation and, subject to the control of the Board of
Directors, shall in general supervise and control all of the business and
affairs of the corporation. He shall, when present, preside at all Annual
Meetings and Special Meetings. He shall have authority, subject to such rules
as may be prescribed by the Board of Directors, to appoint such agents and
employees of the corporation as he shall deem necessary, to prescribe their
powers, duties and compensation, and to delegate authority to them. Such
agents and employees shall hold office at the discretion of the President. He
shall have authority to sign, execute and acknowledge, on behalf of the
corporation, all deeds, mortgages, bonds, stock certificates, contracts,
leases, reports and all other documents or instruments necessary or proper to
be executed in the course of the corporation's regular business, or which
shall be authorized by resolution of the Board of Directors; and, except as
otherwise provided by law or the Board of Directors, he may authorize any
Vice-President or other officer or agent of the corporation to sign, execute
and acknowledge such documents or instruments in his place and stead. In
general he shall perform all duties incident to the office of the President
and such other duties as may be prescribed by the Board of Directors from time
to time.
4.06. The Vice-Presidents. In the absence of the President or
in the event of his death, inability or refusal to act, or in the event for
any reason it shall be impracticable for the President to act personally, the
Vice-President (or in the event there be more than one Vice-President, the
Vice-Presidents in the order designated by the Board of Directors, or in the
absence of any designation, then in the order of their election) shall perform
the duties of the President, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the President. Any Vice-President
may sign, with the Secretary or Assistant Secretary, certificates for shares
of the corporation; and shall perform such other duties and have such
authority as from time to time may be delegated or assigned to him by the
President or by the Board of Directors. The execution of any instrument of
the corporation by any Vice-President shall be conclusive evidence, as to
third parties, of his authority to act in the stead of the President.
4.07. The Secretary. The Secretary shall: (a) keep the minutes
of all Annual Meetings and Special Meetings and all meetings of the Board of
Directors in one or more books provided for that purpose (including records of
actions taken without a meeting); (b) see that all notices are duly given in
accordance with the provisions of these by-laws or as required by the
Wisconsin Business Corporation Law; (c) be custodian of the corporate records
and of the seal of the corporation and see that the seal of the corporation is
affixed to all documents the execution of which on behalf of the corporation
under its seal is duly authorized; (d) maintain a record of the shareholders
of the corporation, in the form that permits preparation of a list of the
names and addresses of all shareholders, by class or series of shares and
showing the number and class or series of shares held by each shareholder; (e)
sign with the President, or a Vice-President, certificates for shares of the
corporation, the issuance of which shall have been authorized by resolution of
the Board of Directors; (f) have general charge of the stock transfer books of
the corporation; and (g) in general perform all duties incident to the office of
Secretary and have such other duties and exercise such authority as from time
to time may be delegated or assigned to him by the President or by the Board
of Directors.
4.08. The Treasurer. The Treasurer shall: (a) have charge and
custody of and be responsible for all funds and securities of the corporation;
(b) maintain appropriate accounting records; (c) receive and give receipts for
moneys due and payable to the corporation from any source whatsoever, and
deposit all such moneys in the name of the corporation in such banks, trust
companies or other depositaries as shall be selected in accordance with the
provisions of Section 5.04; and (d) in general perform all of the duties
incident to the office of Treasurer and have such other duties and exercise
such other authority as from time to time may be delegated or assigned to him
by the President or by the Board of Directors. If required by the Board of
Directors, the Treasurer shall give a bond for the faithful discharge of his
duties in such sum and with such surety or sureties as the Board of Directors
shall determine.
4.09. Assistant Secretaries and Assistant Treasurers. There
shall be such number of Assistant Secretaries and Assistant Treasurers as the
Board of Directors may from time to time authorize. The Assistant Secretaries
may sign with the President or a Vice-President certificates for shares of the
corporation the issuance of which shall have been authorized by a resolution
of the Board of Directors. The Assistant Treasurers shall respectively, if
required by the Board of Directors, give bonds for the faithful discharge of
their duties in such sums and with such sureties as the Board of Directors
shall determine. The Assistant Secretaries and Assistant Treasurers, in
general, shall perform such duties and have such authority as shall from time
to time be delegated or assigned to them by the Secretary or the Treasurer,
respectively, or by the President or the Board of Directors.
4.10. Other Assistants and Acting Officers. The Board of
Directors shall have the power to appoint, or to authorize any duly appointed
officer of the corporation to appoint, any person to act as assistant to any
officer, or as agent for the corporation in his stead, or to perform the
duties of such officer whenever for any reason it is impracticable for such
officer to act personally, and such assistant or acting officer or other agent
so appointed by the Board of Directors or the appointing officer shall have
the power to perform all duties of the office to which he is so appointed to
be assistant, or as to which he is so appointed to act, except as such power
may be otherwise defined or restricted by the Board of Directors or the
appointing officer.
4.11. Salaries. The salaries of the principal officers shall be
fixed from time to time by the Board of Directors or by a duly authorized
committee thereof, and no officer shall be prevented from receiving such
salary by reason of the fact that he is also a director of the corporation.
ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS; SPECIAL CORPORATE ACTS
5.01. Contracts. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or execute or
deliver any instrument in the name of and on behalf of the corporation, and
such authorization may be general or confined to specific instances. In the
absence of other designation, all deeds, mortgages and instruments of
assignment or pledge made by the corporation shall be executed in the name of
the corporation by the President or one of the Vice-Presidents and by the
Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer;
the Secretary or an Assistant Secretary, when necessary or required, shall
affix the corporate seal thereto; and when so executed no other party to such
instrument or any third party shall be required to make any inquiry into the
authority of the signing officer or officers.
5.02. Loans. No indebtedness for borrowed money shall be
contracted on behalf of the corporation and no evidences of such indebtedness
shall be issued in its name unless authorized by or under the authority of a
resolution of the Board of Directors. Such authorization may be general or
confined to specific instances.
5.03. Checks, Drafts, etc. All checks, drafts or other orders
for the payment of money, notes or other evidences of indebtedness issued in
the name of the corporation, shall be signed by such officer or officers,
agent or agents of the corporation and in such manner as shall from time to
time be determined by or under the authority of a resolution of the Board of
Directors.
5.04. Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the corporation
in such banks, trust companies or other depositaries as may be selected by or
under the authority of a resolution of the Board of Directors.
5.05. Voting of Securities Owned by this Corporation. Subject
always to the specific directions of the Board of Directors, (a) any shares or
other securities issued by any other corporation and owned or controlled by
this corporation may be voted at any meeting of security holders of such other
corporation by the President of this corporation if he be present, or in his
absence by any Vice-President of this corporation who may be present, and (b)
whenever, in the judgment of the President, or in his absence, of any
Vice-President, it is desirable for this corporation to execute a proxy or
written consent in respect to any shares or other securities issued by any
other corporation and owned by this corporation, such proxy or consent shall
be executed in the name of this corporation by the President or one of the
Vice-Presidents of this corporation, without necessity of any authorization by
the Board of Directors, affixation of corporate seal or countersignature or
attestation by another officer. Any person or persons designated in the
manner above stated as the proxy or proxies of this corporation shall have
full right, power and authority to vote the shares or other securities issued
by such other corporation and owned by this corporation the same as such
shares or other securities might be voted by this corporation.
5.06. No Nominee Procedures. The corporation has not
established, and nothing in these by-laws shall be deemed to establish, any
procedure by which a beneficial owner of the corporation's shares that are
registered in the name of a nominee is recognized by the corporation as the
shareholder under Section 180.0723 of the Wisconsin Business Corporation Law.
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.01. Certificates for Shares. Certificates representing shares
of the corporation shall be in such form, consistent with the Wisconsin
Business Corporation Law, as shall be determined by the Board of Directors.
Such certificates shall be signed by the President or a Vice-President and by
the Secretary or an Assistant Secretary. All certificates for shares shall be
consecutively numbered or otherwise identified. The name and address of the
person to whom the shares represented thereby are issued, with the number of
shares and date of issue, shall be entered on the stock transfer books of the
corporation. All certificates surrendered to the corporation for transfer
shall be cancelled and no new certificate shall be issued until the former
certificate for a like number of shares shall have been surrendered and
cancelled, except as provided in Section 6.06.
6.02. Facsimile Signatures and Seal. The seal of the
corporation on any certificates for shares may be a facsimile. The signatures
of the President or Vice-President and the Secretary or Assistant Secretary
upon a certificate may be facsimiles if the certificate is countersigned by a
transfer agent, or registered by a registrar, other than the corporation
itself or an employee of the corporation.
6.03. Signature by Former Officers. In case any officer, who
has signed or whose facsimile signature has been placed upon any certificate
for shares, shall have ceased to be such officer before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer at the date of its issue.
6.04. Transfer of Shares. Prior to due presentment of a
certificate for shares for registration of transfer the corporation may treat
the registered owner of such shares as the person exclusively entitled to
vote, to receive notifications and otherwise to exercise all the rights and
powers of an owner. Where a certificate for shares is presented to the
corporation with a request to register for transfer, the corporation shall not
be liable to the owner or any other person suffering loss as a result of such
registration of transfer if (a) there were on or with the certificate the
necessary endorsements, and (b) the corporation had no duty to inquire into
adverse claims or has discharged any such duty. The corporation may require
reasonable assurance that said endorsements are genuine and effective and
compliance with such other regulations as may be prescribed under the
authority of the Board of Directors.
6.05. Restrictions on Transfer. The face or reverse side of
each certificate representing shares shall bear a conspicuous notation of any
restriction imposed by the corporation upon the transfer of such shares.
6.06. Lost, Destroyed or Stolen Certificates. Where the owner
claims that his certificate for shares has been lost, destroyed or wrongfully
taken, a new certificate shall be issued in place thereof if the owner (a) so
requests before the corporation has notice that such shares have been acquired
by a bona fide purchaser, and (b) files with the corporation a sufficient
indemnity bond, and (c) satisfies such other reasonable requirements as the
Board of Directors may prescribe.
6.07. Consideration for Shares. The Board of Directors may
authorize shares to be issued for consideration consisting of any tangible or
intangible property or benefit to the corporation, including cash, promissory
notes, services performed, contracts for services to be performed or other
securities of the corporation. Before the corporation issues shares, the
Board of Directors shall determine that the consideration received or to be
received for the shares to be issued is adequate. In the absence of a
resolution adopted by the Board of Directors expressly determining that the
consideration received or to be received is adequate, Board approval of the
issuance of the shares shall be deemed to constitute such a determination.
The determination of the Board of Directors is conclusive insofar as the
adequacy of consideration for the issuance of shares relates to whether the
shares are validly issued, fully paid and nonassessable. The corporation may
place in escrow shares issued in whole or in part for a contract for future
services or benefits, a promissory note, or other property to be issued in the
future, or make other arrangements to restrict the transfer of the shares, and
may credit distributions in respect of the shares against their purchase
price, until the services are performed, the benefits or property are received
or the promissory note is paid. If the services are not performed, the
benefits or property are not received or the promissory note is not paid, the
corporation may cancel, in whole or in part, the shares escrowed or restricted
and the distributions credited.
6.08. Stock Regulations. The Board of Directors shall have the
power and authority to make all such further rules and regulations not
inconsistent with the statutes of the State of Wisconsin as it may deem
expedient concerning the issue, transfer and registration of certificates
representing shares of the corporation.
ARTICLE VII. SEAL
7.01. The Board of Directors shall provide a corporate seal
which shall be circular in form and shall have inscribed thereon the name of
the corporation and the state of incorporation and the words, "Corporate
Seal."
ARTICLE VIII. AMENDMENTS
8.01. By Shareholders. The affirmative vote of shareholders
possessing at least seventy-five percent of the voting power of the then
outstanding shares of all classes of stock of the corporation generally
possessing voting rights in elections of directors, considered for this
purpose as one class, shall be required to amend, alter, change or repeal, or
to adopt any provision inconsistent with, Sections 2.01 to 2.05 inclusive of
Article II of these by-laws, Sections 8.01 to 8.03 inclusive of Article VIII
of these by-laws and Sections 9.01 to 9.11 inclusive of Article IX of these
by-laws. Subject to the foregoing and except as otherwise provided in the
restated articles of incorporation of the corporation, the by-laws of this
corporation may be altered, amended, changed or repealed by the affirmative
vote of shareholders possessing at least a majority of the voting power of the
shares of all classes of stock of the corporation generally possessing voting
rights in elections of directors considered for this purpose as one class,
which are present or represented at any Annual Meeting or Special Meeting at
which a quorum is present.
8.02. By Directors. A Requisite Vote (as defined herein) of the
directors shall be required to alter, amend, change or repeal, or to adopt any
provision inconsistent with, Sections 2.01 to 2.05 inclusive, Section 2.07 and
Section 2.14 of Article II of these by-laws, Sections 8.01 to 8.03 inclusive
of Article VIII of these by-laws and Sections 9.01 to 9.11 inclusive of
Article IX of these by-laws. For purposes of this Section 8.02, "Requisite
Vote" shall mean the affirmative vote of at least two-thirds of the directors
then in office plus one director. Subject to the foregoing and except as
otherwise provided in the restated articles of incorporation of the
corporation, the by-laws of this corporation may be altered, amended, changed
or repealed by the Board of Directors by the affirmative vote of a majority of
the number of directors present at any meeting at which a quorum is present;
provided, however, that the shareholders in altering, adopting, amending,
changing or repealing a particular by-law may provide therein that the Board
of Directors may not amend, repeal or readopt that by-law.
8.03. Implied Amendments. Any action taken or authorized by the
shareholders or by the Board of Directors, which would be inconsistent with
the by-laws then in effect but is taken or authorized by affirmative vote of
not less than the number of votes or the number of directors required to amend
the by-laws so that the by-laws would be consistent with such action, shall be
given the same effect as though the by-laws had been temporarily amended or
suspended so far, but only so far, as is necessary to permit the specific
action so taken or authorized.
ARTICLE IX. INDEMNIFICATION
9.01. Certain Definitions. All capitalized terms used in this
Article IX and not otherwise hereinafter defined in this Section 9.01 shall
have the meaning set forth in Section 180.0850 of the Statute. The following
capitalized terms (including any plural forms thereof) used in this Article IX
shall be defined as follows:
(a) "Affiliate" shall include, without limitation, any corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise
that directly or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the Corporation.
(b) "Authority" shall mean the entity selected by the Director or
Officer to determine his or her right to indemnification pursuant to Section
9.04.
(c) "Board" shall mean the entire then elected and serving Board of
Directors of the Corporation, including all members thereof who are Parties to
the subject Proceeding or any related Proceeding.
(d) "Breach of Duty" shall mean the Director or Officer breached or
failed to perform his or her duties to the Corporation and his or her breach
of or failure to perform those duties is determined, in accordance with
Section 9.04, to constitute misconduct under Section 180.0851(2)(a) l, 2, 3 or
4 of the Statute.
(e) "Corporation," as used herein and as defined in the Statute and
incorporated by reference into the definitions of certain other capitalized
terms used herein, shall mean this Corporation, including, without limitation,
any successor corporation or entity to this Corporation by way of merger,
consolidation or acquisition of all or substantially all of the capital stock
or assets of this Corporation.
(f) "Director or Officer" shall have the meaning set forth in the
Statute; provided, that, for purposes of this Article IX, it shall be
conclusively presumed that any Director or Officer serving as a director,
officer, partner, trustee, member of any governing or decision-making
committee, employee or agent of an Affiliate shall be so serving at the
request of the Corporation.
(g) "Disinterested Quorum" shall mean a quorum of the Board who are
not Parties to the subject Proceeding or any related Proceeding.
(h) "Party" shall have the meaning set forth in the Statute;
provided, that, for purposes of this Article IX, the term "Party" shall also
include any Director or Officer or employee of the Corporation who is or was a
witness in a Proceeding at a time when he or she has not otherwise been
formally named a Party thereto.
(i) "Proceeding" shall have the meaning set forth in the Statute;
provided, that, in accordance with Section 180.0859 of the Statute and for
purposes of this Article IX, the term "Proceeding" shall also include all
Proceedings (i) brought under (in whole or in part) the Securities Act of
1933, as amended, the Exchange Act, their respective state counterparts,
and/or any rule or regulation promulgated under any of the foregoing; (ii)
brought before an Authority or otherwise to enforce rights hereunder; (iii)
any appeal from a Proceeding; and (iv) any Proceeding in which the Director or
Officer is a plaintiff or petitioner because he or she is a Director or
Officer; provided, however, that any such Proceeding under this subsection
(iv) must be authorized by a majority vote of a Disinterested Quorum.
(j) "Statute" shall mean Sections 180.0850 through 180.0859,
inclusive, of the Wisconsin Business Corporation Law, Chapter 180 of the
Wisconsin Statutes, as the same shall then be in effect, including any
amendments thereto, but, in the case of any such amendment, only to the extent
such amendment permits or requires the Corporation to provide broader
indemnification rights than the Statute permitted or required the Corporation
to provide prior to such amendment.
9.02. Mandatory Indemnification. To the fullest extent
permitted or required by the Statute, the Corporation shall indemnify a
Director or Officer against all Liabilities incurred by or on behalf of such
Director or Officer in connection with a Proceeding in which the Director or
Officer is a Party because he or she is a Director or Officer.
9.03. Procedural Requirements.
(a) A Director or Officer who seeks indemnification under Section
9.02 shall make a written request therefor to the Corporation. Subject to
Section 9.03(b), within 60 days of the Corporation's receipt of such request,
the Corporation shall pay or reimburse the Director or Officer for the entire
amount of Liabilities incurred by the Director or Officer in connection with
the subject Proceeding (net of any Expenses previously advanced pursuant to
Section 9.05).
(b) No indemnification shall be required to be paid by the
Corporation pursuant to Section 9.02 if, within such 60-day period, (i) a
Disinterested Quorum, by a majority vote thereof, determines that the Director
or Officer requesting indemnification engaged in misconduct constituting a
Breach of Duty or (ii) a Disinterested Quorum cannot be obtained.
(c) In either case of nonpayment pursuant to Section 9.03(b), the
Board shall immediately authorize by resolution that an Authority, as provided
in Section 9.04, determine whether the Director's or Officer's conduct
constituted a Breach of Duty and, therefore, whether indemnification should be
denied hereunder.
(d) (i) If the Board does not authorize an Authority to determine
the Director's or Officer's right to indemnification hereunder within such
60-day period and/or (ii) if indemnification of the requested amount of
Liabilities is paid by the Corporation, then it shall be conclusively presumed
for all purposes that a Disinterested Quorum has affirmatively determined that
the Director or Officer did not engage in misconduct constituting a Breach of
Duty and, in the case of subsection (i) above (but not subsection (ii)),
indemnification by the Corporation of the requested amount of Liabilities
shall be paid to the Director or Officer immediately.
9.04. Determination of Indemnification.
(a) If the Board authorizes an Authority to determine a Director's
or Officer's right to indemnification pursuant to Section 9.03, then the
Director or Officer requesting indemnification shall have the absolute
discretionary authority to select one of the following as such Authority:
(i) An independent legal counsel; provided, that such counsel shall
be mutually selected by such Director or Officer and by a majority vote
of a Disinterested Quorum or, if a Disinterested Quorum cannot be
obtained, then by a majority vote of the Board;
(ii) A panel of three arbitrators selected from the panels of
arbitrators of the American Arbitration Association in Wisconsin;
provided, that (A) one arbitrator shall be selected by such Director or
Officer, the second arbitrator shall be selected by a majority vote of a
Disinterested Quorum or, if a Disinterested Quorum cannot be obtained,
then by a majority vote of the Board, and the third arbitrator shall be
selected by the two previously selected arbitrators, and (B) in all other
respects, such panel shall be governed by the American Arbitration
Association's then existing Commercial Arbitration Rules; or
(iii) A court pursuant to and in accordance with Section
180.0854 of the Statute.
(b) In any such determination by the selected Authority there shall
exist a rebuttable presumption that the Director's or Officer's conduct did
not constitute a Breach of Duty and that indemnification against the requested
amount of Liabilities is required. The burden of rebutting such a presumption
by clear and convincing evidence shall be on the Corporation or such other
party asserting that such indemnification should not be allowed.
(c) The Authority shall make its determination within 60 days of
being selected and shall submit a written opinion of its conclusion
simultaneously to both the Corporation and the Director or Officer.
(d) If the Authority determines that indemnification is required
hereunder, the Corporation shall pay the entire requested amount of
Liabilities (net of any Expenses previously advanced pursuant to Section
9.05), including interest thereon at a reasonable rate, as determined by the
Authority, within 10 days of receipt of the Authority's opinion; provided,
that, if it is determined by the Authority that a Director or Officer is
entitled to indemnification against Liabilities incurred in connection with
some claims, issues or matters, but not as to other claims, issues or matters,
involved in the subject Proceeding, the Corporation shall be required to pay
(as set forth above) only the amount of such requested Liabilities as the
Authority shall deem appropriate in light of all of the circumstances of such
Proceeding.
(e) The determination by the Authority that indemnification is
required hereunder shall be binding upon the Corporation regardless of any
prior determination that the Director or Officer engaged in a Breach of Duty.
(f) All Expenses incurred in the determination process under this
Section 9.04 by either the Corporation or the Director or Officer, including,
without limitation, all Expenses of the selected Authority, shall be paid by
the Corporation.
9.05. Mandatory Allowance of Expenses.
(a) The Corporation shall pay or reimburse from time to time or at
any time, within 10 days after the receipt of the Director's or Officer's
written request therefor, the reasonable Expenses of the Director or Officer
as such Expenses are incurred; provided, the following conditions are
satisfied:
(i) The Director or Officer furnishes to the Corporation an
executed written certificate affirming his or her good faith belief that
he or she has not engaged in misconduct which constitutes a Breach of
Duty; and
(ii) The Director or Officer furnishes to the Corporation an
unsecured executed written agreement to repay any advances made under
this Section 9.05 if it is ultimately determined by an Authority that he
or she is not entitled to be indemnified by the Corporation for such
Expenses pursuant to Section 9.04.
(b) If the Director or Officer must repay any previously advanced
Expenses pursuant to this Section 9.05, such Director or Officer shall not be
required to pay interest on such amounts.
9.06. Indemnification and Allowance of Expenses of Certain
Others.
(a) The Board may, in its sole and absolute discretion as it deems
appropriate, pursuant to a majority vote thereof, indemnify a director or
officer of an Affiliate (who is not otherwise serving as a Director or
Officer) against all Liabilities, and shall advance the reasonable Expenses,
incurred by such director or officer in a Proceeding to the same extent
hereunder as if such director or officer incurred such Liabilities because he
or she was a Director or Officer, if such director or officer is a Party
thereto because he or she is or was a director or officer of the Affiliate.
(b) The Corporation shall indemnify an employee of the Corporation
who is not a Director or Officer, to the extent he or she has been successful
on the merits or otherwise in defense of a Proceeding, for all Expenses
incurred in the Proceeding if the employee was a Party because he or she was
an employee of the Corporation.
(c) The Board may, in its sole and absolute discretion as it deems
appropriate, pursuant to a majority vote thereof, indemnify (to the extent not
otherwise provided in Section 9.06(b) hereof) against Liabilities incurred by,
and/or provide for the allowance of reasonable Expenses of, an employee or
authorized agent of the Corporation acting within the scope of his or her
duties as such and who is not otherwise a Director or Officer.
9.07. Insurance. The Corporation may purchase and maintain
insurance on behalf of a Director or Officer or any individual who is or was
an employee or authorized agent of the Corporation against any Liability
asserted against or incurred by such individual in his or her capacity as such
or arising from his or her status as such, regardless of whether the
Corporation is required or permitted to indemnify against any such Liability
under this Article IX.
9.08. Notice to the Corporation. A Director, Officer or
employee of the Corporation shall promptly notify the Corporation in writing
when he or she has actual knowledge of a Proceeding which may result in a
claim of indemnification against Liabilities or allowance of Expenses
hereunder, but the failure to do so shall not relieve the Corporation of any
liability to the Director, Officer or employee hereunder unless the
Corporation shall have been irreparably prejudiced by such failure (as
determined, in the case of Directors or Officers only, by an Authority
selected pursuant to Section 9.04(a)).
9.09. Severability. If any provision of this Article IX shall
be deemed invalid or inoperative, or if a court of competent jurisdiction
determines that any of the provisions of this Article IX contravene public
policy, this Article IX shall be construed so that the remaining provisions
shall not be affected, but shall remain in full force and effect, and any such
provisions which are invalid or inoperative or which contravene public policy
shall be deemed, without further action or deed by or on behalf of the
Corporation, to be modified, amended and/or limited, but only to the extent
necessary to render the same valid and enforceable; it being understood that
it is the Corporation's intention to provide the Directors and Officers with
the broadest possible protection against personal liability allowable under
the Statute.
9.10. Nonexclusivity of Article IX. The rights of a Director,
Officer or employee of the Corporation (or any other person) granted under
this Article IX shall not be deemed exclusive of any other rights to
indemnification against Liabilities or allowance of Expenses which the
Director, Officer or employee (or such other person) may be entitled to under
any written agreement, Board resolution, vote of shareholders of the
corporation or otherwise, including, without limitation, under the Statute.
Nothing contained in this Article IX shall be deemed to limit the
Corporation's obligations to indemnify against Liabilities or allow Expenses
to a Director, Officer or employee of the Corporation under the Statute.
9.11. Contractual Nature of Article IX; Repeal or Limitation of
Rights. This Article IX shall be deemed to be a contract between the
Corporation and each Director, Officer and employee of the Corporation and any
repeal or other limitation of this Article IX or any repeal or limitation of
the Statute or any other applicable law shall not limit any rights of
indemnification against Liabilities or allowance of Expenses then existing or
arising out of events, acts or omissions occurring prior to such repeal or
limitation, including, without limitation, the right to indemnification
against Liabilities or allowance of Expenses for Proceedings commenced after
such repeal or limitation to enforce this Article IX with regard to acts,
omissions or events arising prior to such repeal or limitation.
First
Amendment
of the
Restated 2/22/91
By-Laws
of
GEHL COMPANY
(A Wisconsin Corporation)
Section 3.01 shall be revised to read as follows:
"3.01. General Powers and Number. All corporate powers shall be
exercised by or under the authority of, and the business and affairs of the
corporation shall be managed under the direction of its Board of Directors.
The number of directors of the corporation shall be seven (7), divided into
three (3) classes: Class I - two (2) directors; Class II - three (3)
directors; Class III - two (2) directors.
Approved at 12/18/92 Board Meeting
Second
Amendment
of the
Restated 2/22/91
By-Laws
of
GEHL COMPANY
(A Wisconsin Corporation)
Section 3.01 shall be revised to read as follows:
"3.01. General Powers and Number. All corporate powers shall be
exercised by or under the authority of, and the business and affairs of the
corporation shall be managed under the direction of its Board of Directors.
The number of directors of the corporation shall be eight (8), divided into
three (3) classes: Class I - two (2) directors; Class II - four (4)
directors; Class III - two (2) directors.
Approved at 12/17/93 Board Meeting
Third
Amendment
of the
Restated 2/22/91
By-Laws
of
GEHL COMPANY
(A Wisconsin Corporation)
Effective immediately prior to the commencement of the Annual Meeting,
Section 3.01 shall be revised to read as follows:
"3.01. General Powers and Number. All corporate powers shall be
exercised by or under the authority of, and the business and affairs of the
corporation shall be managed under the direction of its Board of Directors.
The number of directors of the corporation shall be seven (7), divided into
three (3) classes: Class I - two (2) directors; Class II - three (3)
directors; Class III - two (2) directors."
Approved at 2/25/94 Board Meeting
Fourth
Amendment
of the
Restated 2/22/91
By-Laws
of
GEHL COMPANY
(A Wisconsin Corporation)
Effective immediately, Section 3.01 shall be revised to read as follows:
"3.01. General Powers and Number. All corporate powers shall be
exercised by or under the authority of, and the business and affairs of the
corporation shall be managed under the direction of its Board of Directors.
The number of directors of the corporation shall be eight (8), divided into
three (3) classes: Class I - three (3) directors; Class II - three (3)
directors; Class III - two (2) directors."
Approved at 2/24/95 Board Meeting
Fifth
Amendment
of the
Restated 2/22/91
By-Laws
of
GEHL COMPANY
(A Wisconsin Corporation)
Effective immediately, Section 3.01 shall be revised to read as follows:
"3.01. General Powers and Number. All corporate powers shall be
exercised by or under the authority of, and the business and affairs of the
corporation shall be managed under the direction of its Board of Directors.
The number of directors of the corporation shall be nine (9) divided into
three (3) classes: Class I - three (3) directors; Class II - three (3)
directors; Class III - three (3) directors."
Approved at 2/23/96 Board Meeting
Sixth
Amendment
of the
Restated 2/22/91
By-Laws
of
Gehl Company
(A Wisconsin Corporation)
Effective immediately, Section 3.01 shall be revised to read as follows:
"3.01. General Powers and Number. All corporate powers shall be
exercised by or under the authority of, and the business and affairs of the
corporation shall be managed under the direction of its Board of Directors.
The number of directors of the corporation shall be eight (8) divided into
three (3) classes: Class I - three (3) directors; Class II - two (2)
directors; Class III - three (3) directors."
Approved at 4/29/98 Board Meeting
(Restated/Approved 2/22/91)
(First Amendment 12/18/92)
(Second Amendment 2/17/93)
(Third Amendment 2/25/94)
(Fourth Amendment 2/24/95)
(Fifth Amendment 2/23/96)
(Sixth Amendment 4/29/98)