EXHIBIT 3.2
LUNAR CORPORATION AND SUBSIDIARIES
BY-LAWS
OF
LUNAR CORPORATION
(A Wisconsin Corporation)
BY-LAWS
OF
LUNAR CORPORATION
(A Wisconsin Corporation)
Introduction - Variable References
0.01. Date of annual shareholders' meeting (See Section 2.01):
1:00 p.m. First Saturday February 1991
(HOUR) (WEEK) (DAY) (MONTH) (FIRST YEAR)
0.02. Required notice of shareholders' meeting (See Section 2.04):
not less than 10 days.
0.03. Authorized number of Directors (see Section 3.01): 9.
0.04. Required notice of Directors' meeting (see Section 3.05):
(a) Not less than 72 hours if by mail, and
(b) Not less than 36 hours if by telegram or personal delivery.
0.05. Authorized number of Vice Presidents (see Section 4.01): 4.
TABLE OF CONTENTS
ARTICLE I. OFFICES
1.01 Principal and Business Offices. . . . . . . . . . . . . . . . . 1
1.02 Registered Office . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II. SHAREHOLDERS
2.01 Annual Meeting. . . . . . . . . . . . . . . . . . . . . . . . . 1
2.02 Special Meeting . . . . . . . . . . . . . . . . . . . . . . . . 1
2.03 Place of Meeting. . . . . . . . . . . . . . . . . . . . . . . . 1
2.04 Notice of Meeting . . . . . . . . . . . . . . . . . . . . . . . 2
2.05 Closing of Transfer Books or Fixing of Record Date. . . . . . . 2
2.06 Voting Records. . . . . . . . . . . . . . . . . . . . . . . . . 2
2.07 Quorum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.08 Conduct of Meetings . . . . . . . . . . . . . . . . . . . . . . 3
2.09 Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.10 Voting of Shares. . . . . . . . . . . . . . . . . . . . . . . . 3
2.11 Voting of Shares by Certain Holders . . . . . . . . . . . . . . 3
(a) Other Corporations. . . . . . . . . . . . . . . . . . . . . . . 3
(b) Legal Representatives and Fiduciaries . . . . . . . . . . . . . 4
(c) Pledgees. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(d) Treasury Stock and Subsidiaries . . . . . . . . . . . . . . . . 4
(e) Minors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(f) Incompetents and Spendthrifts . . . . . . . . . . . . . . . . . 4
(g) Joint Tenants . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.12 Waiver of Notice by Shareholders. . . . . . . . . . . . . . . . 5
2.13 Unanimous Consent Without Meeting . . . . . . . . . . . . . . . 5
ARTICLE III. BOARD OF DIRECTORS
3.01 General Powers and Number . . . . . . . . . . . . . . . . . . . 5
3.02 Tenure and Qualifications . . . . . . . . . . . . . . . . . . . 5
3.03 Regular Meetings. . . . . . . . . . . . . . . . . . . . . . . . 6
3.04 Special Meetings. . . . . . . . . . . . . . . . . . . . . . . . 6
3.05 Notice; Waiver. . . . . . . . . . . . . . . . . . . . . . . . . 6
3.06 Quorum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.07 Manner of Acting. . . . . . . . . . . . . . . . . . . . . . . . 6
3.08 Conduct of Meetings . . . . . . . . . . . . . . . . . . . . . . 7
3.09 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.10 Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.11 Presumption of Assent . . . . . . . . . . . . . . . . . . . . . 7
3.12 Committees. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.13 Unanimous Consent Without Meeting . . . . . . . . . . . . . . . 8
3.14 Meetings by Telephone or by Other Communication Technology. . . 8
ARTICLE IV. OFFICERS
4.01 Number. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.02 Election and Term of Office . . . . . . . . . . . . . . . . . . 8
4.03 Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.04 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.05 Chairman of the Board . . . . . . . . . . . . . . . . . . . . . 9
4.06 President . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.07 The Executive Vice President. . . . . . . . . . . . . . . . . . 9
4.08 The Vice Presidents . . . . . . . . . . . . . . . . . . . . . . 9
4.09 The Secretary . . . . . . . . . . . . . . . . . . . . . . . . .10
4.10 The Treasurer . . . . . . . . . . . . . . . . . . . . . . . . .10
4.11 Assistant Secretaries and Assistant Treasurers. . . . . . . . .10
4.12 Other Assistants and Acting Officers. . . . . . . . . . . . . .10
4.13 Salaries. . . . . . . . . . . . . . . . . . . . . . . . . . . .11
ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS
5.01 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . .11
5.02 Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
5.03 Checks, Drafts, etc.. . . . . . . . . . . . . . . . . . . . . .11
5.04 Deposits. . . . . . . . . . . . . . . . . . . . . . . . . . . .11
5.05 Voting of Securities Owned by this Corporation. . . . . . . . .12
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.01 Certificates for Shares . . . . . . . . . . . . . . . . . . . .12
6.02 Facsimile Signatures and Seal . . . . . . . . . . . . . . . . .12
6.03 Signature by Former Officers. . . . . . . . . . . . . . . . . .12
6.04 Transfer of Shares. . . . . . . . . . . . . . . . . . . . . . .13
6.05 Restrictions on Transfer. . . . . . . . . . . . . . . . . . . .13
6.06 Lost, Destroyed or Stolen Certificates. . . . . . . . . . . . .13
6.07 Consideration for Shares. . . . . . . . . . . . . . . . . . . .13
6.08 Stock Regulations . . . . . . . . . . . . . . . . . . . . . . .13
ARTICLE VII. WAIVER OF NOTICE
ARTICLE VIII. UNANIMOUS CONSENT WITHOUT A MEETING
ARTICLE IX. INDEMNIFICATION
9.01 Indemnification for Successful Defense. . . . . . . . . . . . .14
9.02 Other Indemnification . . . . . . . . . . . . . . . . . . . . .14
9.03 Written Request . . . . . . . . . . . . . . . . . . . . . . . .15
9.04 Nonduplication. . . . . . . . . . . . . . . . . . . . . . . . .15
9.05 Determination of Right to Indemnification . . . . . . . . . . .15
9.06 Advance Expenses. . . . . . . . . . . . . . . . . . . . . . . .16
9.07 Nonexclusivity. . . . . . . . . . . . . . . . . . . . . . . . .16
9.08 Court-Ordered Indemnification . . . . . . . . . . . . . . . . .17
9.09 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . .18
9.10 Securities Law Claim. . . . . . . . . . . . . . . . . . . . . .18
9.11 Liberal Construction. . . . . . . . . . . . . . . . . . . . . .18
9.12 Definitions Applicable to This Article. . . . . . . . . . . . .18
ARTICLE X. SEAL
ARTICLE XI. AMENDMENTS
11.01 By Shareholders . . . . . . . . . . . . . . . . . . . . . . . .20
11.02 By Directors. . . . . . . . . . . . . . . . . . . . . . . . . .20
11.03 Implied Amendments. . . . . . . . . . . . . . . . . . . . . . .20
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 or by the registered agent. 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 the shareholders
shall be held at the date and hour in each year set forth in Section
0.01, or at such other time and date within thirty days before or after
said date as may be fixed by or under the authority of the Board of
Directors, for the purpose of electing Directors and for the
transaction of such other business as may come before the meeting. If
the day fixed for the annual meeting shall be a legal holiday in the
State of Wisconsin, such meeting shall be held on the next succeeding
business day. If the election of Directors shall not be held on the
day designated herein, or fixed as herein provided, for any annual
meeting of the shareholders, or at any adjournment thereof, the Board
of Directors shall cause the election to be held at a special meeting
of the shareholders as soon thereafter as conveniently may be.
2.02 Special Meeting. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by statute, may be
called by the Chairman of the Board (if one be designated), or the
President or the Board of Directors or by the person designated in the
written request of the holders of not less than one-tenth of all shares
of the Corporation entitled to vote at the meeting.
2.03 Place of Meeting. The Board of Directors may designate any
place, either within or without the State of Wisconsin, as the place of
meeting for any annual meeting or for any special meeting called by the
Board of Directors. A waiver of notice signed by all shareholders
entitled to vote at a meeting may designate any place, either within or
without the State of Wisconsin, as the place for the holding of such
meeting. If no designation is made, or if a special meeting be
otherwise called, the place of meeting shall be the principal business
office of the Corporation in the State of Wisconsin or such other
suitable place in the county of such principal office as may be
designated by the person calling such meeting, but any meeting may be
adjourned to reconvene at any place designated by vote of a majority of
the shares represented thereat.
2.04 Notice of Meeting. Written notice stating the place, day
and hour of the meeting and, in case of a special meeting, the purpose
or purposes for which the meeting is called, shall be delivered not
less than the number of days set forth in Section 0.02 (unless a longer
period is required by law or the articles of incorporation) nor more
than fifty days before the date of the meeting, either personally or by
mail, by or at the direction of the Chairman of the Board (if one be
designated), or the President, or the Secretary, or other Officer or
persons calling the meeting, to each shareholder of record entitled to
vote at such meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail, addressed to the
shareholder at his address as it appears on the stock record books of
the Corporation, with postage thereon prepaid.
2.05 Closing of Transfer Books or Fixing of Record Date. For the
purpose of determining shareholders entitled to notice of or to vote at
any meeting of shareholders or any payment of any dividend, or in order
to make a determination of shareholders for any other proper purpose,
the Board of Directors may provide that the stock transfer books shall
be closed for a stated period but not to exceed, in any case seventy
days. If the stock transfer books shall be closed for the purpose of
determining shareholders entitled to notice of or to vote at a meeting
of shareholders, such books shall be closed for at least ten days
immediately preceding such meeting. In lieu of closing the stock
transfer books, the Board of Directors may fix in advance a date as the
record date for any such determination of shareholders, such date in
any case to be not more than seventy days and, in case of a meeting of
shareholders, not less than ten days prior to the date on which the
particular action requiring such determination of shareholders, is to
be taken. If the stock transfer books are not closed and no record
date is fixed for the determination of shareholders entitled to notice
of or to vote at a meeting of shareholders, or shareholders entitled to
receive payment of a dividend, the close of business on the date on
which notice of the meeting is mailed or on the date on which the
resolution of the Board of Directors declaring such dividend is
adopted, as the case may be, shall be the record date for such
determination of shareholders. When a determination of shareholders
entitled to vote at any meeting of shareholders has been made as
provided in this section, such determination shall be applied to any
adjournment thereof except where the determination has been made
through the closing of the stock transfer books and the stated period
of closing has expired.
2.06 Voting Record. The Officer or agent having charge of the
stock transfer books for shares of the Corporation shall, before each
meeting of shareholders, make a complete list of the shareholders
entitled to vote at such meeting, or any adjournment thereof, with the
address of and the number of shares held by each. Such record shall be
produced and kept open at the time and place of the meeting and shall
be subject to the inspection of any shareholder during the whole time
of the meeting for the purposes of the meeting. The original stock
transfer books shall be prima facie evidence as to who are the
shareholders entitled to examine such record or transfer books or to
vote at any meeting of shareholders. Failure to comply with the
requirements of this section shall not affect the validity of any
action taken at such meeting.
2.07 Quorum and Voting Requirements. Except as otherwise provided
in the articles of incorporation or the Wisconsin Business Corporation
Law, a majority of the votes entitled to be cast on a matter,
represented in person or by proxy, shall constitute a quorum for action
on that matter. Once a share is represented for any purpose at a
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 record
date is or must be set for that adjourned meeting. If a quorum is
present, action on a matter, other than the election of directors, is
approved if the votes cast favoring the action exceed the votes cast
opposing the action. Directors are elected by a plurality of the votes
cast by the shares entitled to vote in the election at a meeting at
which a quorum is present. In the preceding sentence, "plurality"
means that the individuals with the largest number of votes are elected
as directors up to the maximum number of directors to be chosen at the
election. Though less than a quorum of the outstanding shares are
represented at a meeting, a majority of the shares so represented may
adjourn the meeting from time to time without further notice. At such
adjourned meeting at which a quorum shall be present or represented,
any business may be transacted which might have been transacted at the
meeting as originally notified.
2.08 Conduct of Meetings. The Chairman of the Board (if one be
designated), or in the Chairman's absence, the President, or in the
President's absence, the Executive Vice President (if one be
designated), or in the Executive Vice President's absence, a Vice
President in the order provided under Section 4.08, and in their
absence, any person chosen by the shareholders present shall call the
meeting of the shareholders to order and shall act as chairman of the
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 all meetings of shareholders, a shareholder
entitled to vote may vote in person or by proxy appointed in writing by
the shareholder or by his or her duly authorized attorney-in-fact.
Such proxy shall be filed with the Secretary of the Corporation before
or at the time of the meeting. 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 or her proxy shall not of itself constitute a revocation. No
proxy shall be valid after eleven months from the date of its
execution, unless otherwise provided in the proxy. The Board of
Directors shall have the power and authority to make rules establishing
presumptions as to the validity and sufficiency of proxies.
2.10 Voting of Shares. Each outstanding share shall be entitled
to one vote upon each matter submitted to a vote at a meeting of
shareholders, except to the extent that the voting rights of the shares
of any class or classes are enlarged, limited or denied by the articles
of incorporation.
2.11 Voting of Shares by Certain Holders.
(a) Other Corporations. Shares standing in the name of
another corporation may be voted either in person or by proxy, by the
president of such corporation or any other officer appointed by such
president. A proxy executed by any principal officer of such other
corporation or assistant thereto shall be conclusive evidence of the
signer's authority to act, in the absence of express notice to this
Corporation, given in writing to the Secretary of this Corporation, or
the designation of some other person by the Board of Directors or by
the by-laws of such other corporation.
(b) Legal Representatives and Fiduciaries. Shares held by
an administrator, executor, guardian, conservator, trustee in
bankruptcy, receiver or assignee for creditors may be voted by him,
either in person or by proxy, without a transfer of such shares into
his or her name, provided that there is filed with the Secretary before
or at the time of meeting proper evidence of his or her incumbency and
the number of shares held or her. Shares standing in the name of a
fiduciary may be voted by him, either in person or by proxy. A proxy
executed by a fiduciary shall be conclusive evidence of the signer's
authority to act, in the absence of express notice to this Corporation,
given in writing to the Secretary of this Corporation, that such manner
of voting is expressly prohibited or otherwise directed by the document
creating the fiduciary relationship.
(c) Pledgees. A shareholder whose shares are pledged shall
be entitled to vote such shares until the shares have been transferred
into the name of the pledgee, and thereafter the pledgee shall be
entitled to vote the shares so transferred.
(d) Treasury Stock and Subsidiaries. Neither treasury
shares, nor shares held by another corporation if a majority of the
shares entitled to vote for the election of Directors of such other
corporation is held by this Corporation, shall be voted at any meeting
or counted in determining the total number of outstanding shares
entitled to vote, but shares of its own issue held by this Corporation
in a fiduciary capacity, or held by such other corporation in a
fiduciary capacity, may be voted and shall be counted in determining
the total number of outstanding shares entitled to vote.
(e) Minors. Shares held by a minor may be voted by such
minor in person or by proxy and no such vote shall be subject to
disaffirmance or avoidance, unless prior to such vote the Secretary of
the Corporation has received written notice or has actual knowledge
that such shareholder is a minor.
(f) Incompetents and Spendthrifts. Shares held by an
incompetent or spendthrift may be voted by such incompetent or
spendthrift in person or by proxy and no such vote shall be subject to
disaffirmance or avoidance, unless prior to such vote the Secretary of
the Corporation has actual knowledge that such shareholder has been
adjudicated an incompetent or spendthrift or actual knowledge of filing
of judicial proceedings for appointment of a guardian.
(g) Joint Tenants. Shares registered in the names of two or
more individuals who are named in the registration as joint tenants may
be voted in person or by proxy signed by any one or more of such
individuals if either (I) no other such individual or his or her legal
representative is present and claims the right to participate in the
voting of such shares or prior to the vote files with the Secretary of
the Corporation a contrary written voting authorization or direction or
written denial or authority of the individual present or signing the
proxy proposed to be voted or (ii) all such other individuals are
deceased and the Secretary of the Corporation has no actual knowledge
that the survivor has been adjudicated not to be the successor to the
interests of those deceased.
2.12 Waiver of Notice by Shareholders. Whenever any notice
whatever is required to be given to any shareholder of the Corporation
under the articles of incorporation or by-laws or any provision of law,
a waiver thereof in writing, signed at any time, whether before or
after the time of meeting, by the shareholder entitled to such notice,
shall be deemed equivalent to the giving of such notice; provided that
such waiver in respect to any matter of which notice is required under
any provision of the Wisconsin Business Corporation Law, shall contain
the same information as would have been required to be included in such
notice, except the time and place of meeting.
2.13 Unanimous Consent Without Meeting. Any action required or
permitted by the articles of incorporation or by-laws or any provision
of law to be taken at a meeting of the shareholders, may be taken
without a meeting if a consent in writing, setting forth the action so
taken, shall be signed by all of the shareholders entitled to vote with
respect to the subject matter thereof.
ARTICLE III. BOARD OF DIRECTORS
3.01 General Powers and Number. The business and affairs of the
Corporation shall be managed by its Board of Directors. The number of
Directors of the Corporation shall be as provided in Section 0.03, but
shall not be less than six (6), nor more than twelve (12).
The Board of Directors shall be divided into three (3) classes of
not less than two (2) nor more than four (4) Directors each. The term
of office of the first class of Directors shall expire at the first
annual meeting after their initial election and until their successors
are elected and qualified, the term of office of the second class shall
expire at the second annual meeting after their initial election and
until their successors are elected and qualified, and the term of
office of the third class shall expire at the third annual meeting
after the initial election and until their successors are elected and
qualified. At each annual meeting after the initial classification of
the Board of Directors, the class of Directors whose term expires at
the time of such election shall be elected to hold office until the
third succeeding annual meeting and until their successors are elected
and qualified.
3.02 Tenure and Qualifications. Each Director shall hold office
until the next annual meeting of shareholders in the year in which such
Director's term expires and until his successor shall have been
elected, or until his prior death, resignation or removal. A Director
may be removed from office by affirmative vote of 80% of the
outstanding shares entitled to vote for the election of such Director,
taken at an annual meeting or a special meeting of shareholders called
for that purpose, and any vacancy so created may be filled by the
affirmative vote of 80% of such shares. A Director may resign at any
time by filing his written resignation with the Secretary of the
Corporation. Directors need not be residents of the State of Wisconsin
or shareholders of the Corporation.
3.03 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 of shareholders, and each
adjourned session thereof. The place of such regular meeting shall be
the same as the place of the meeting of shareholders which precedes it,
or such other suitable place as may be announced at such meeting of
shareholders. 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.
3.04 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 calling any
special meeting of the Board of Directors 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 called by them, and if no
other place is fixed, the place of meeting shall be the principal
business office of the Corporation in the State of Wisconsin.
3.05 Notice; Waiver. Notice of each meeting of the Board of
Directors (unless otherwise provided in or pursuant to Section 3.03)
shall be given by written notice delivered personally or mailed or
given by telegram to each Director at his or her 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 that number of
hours prior thereto as set forth in Section 0.04. If mailed, such
notice shall be deemed to be delivered when deposited in the United
States mail so addressed, with postage thereon prepaid. If notice be
given by telegram, such notice shall be deemed to be delivered when the
telegram is delivered to the telegraph company. Whenever any notice
whatever is required to be given to any Director of the Corporation
under the articles of incorporation or by-laws or any provision of law,
a waiver thereof in writing, signed at any time, whether before or
after the time of meeting, by the Director entitled to such notice,
shall be deemed equivalent to the giving of such notice. The
attendance of a Director at a meeting shall constitute a waiver of
notice of such meeting, except where a Director attends a meeting and
objects thereat to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of
the Board of Directors need be specified in the notice or waiver of
notice of such meeting.
3.06 Quorum. Except as otherwise provided by law or by the
articles of incorporation or these by-laws, a majority of the number of
Directors as provided in Section 0.03 shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors, by a
majority of the Directors present (though less than such quorum) may
adjourn the meeting from time to time without further notice.
3.07 Manner of Acting. The act of the majority of the Directors
present at a meeting at which a quorum is present shall be the act of
the Board of Directors, unless the act of a greater number is required
by law or by the articles of incorporation of these by-laws.
3.08 Conduct of Meetings. The Chairman of the Board (if one be
designated), or in the Chairman's absence, the President, or in the
President's absence, the Executive Vice President (if one be
designated), or in the Executive Vice President's 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 other person present to act as Secretary
of the meeting.
3.09 Vacancies. Any vacancy occurring in the Board of Directors,
including a vacancy created by an increase in the number of Directors,
may be filled until the next succeeding annual election by the
affirmative vote of a majority of the Directors then in office, though
less than a quorum of the Board of Directors, provided that in case of
a vacancy created by the removal of a Director by vote of the
shareholders, the shareholders shall have the right to fill such
vacancy at the same meeting or any adjournment thereof by the
affirmative vote of 80% of the outstanding shares entitled to vote for
the election of such Directors.
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 of 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 or she is a member, at which action on any corporate matter
is taken, shall be presumed to have assented to the action taken unless
his or her dissent shall be entered in to the minutes of the meeting or
unless he or she shall file his or her written dissent to such action
with the person acting as the Secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail to
the Secretary of the Corporation immediately after the adjournment of
the meeting. Such right to dissent shall not apply to a Director who
voted in favor of such action.
3.12 Committees. The Board of Directors, by resolution adopted
by the affirmative vote of a majority of the number of Directors as
provided in Section 0.03, may designate one or more committees, each
committee to consist of three or more Directors elected by the Board of
Directors, which to the extent provided in said resolution as initially
adopted, and as thereafter supplemented or amended by further
resolution adopted by a like vote, shall have and may exercise, when
the Board of Directors is not in session, the powers of the Board of
Directors in the management of the business and affairs of the
corporation, except action in respect to dividends to shareholders,
election of the principal officers or the filling of vacancies in the
Board of Directors or committees created pursuant to this section. The
Board of Directors may elect one or more of its members as alternate
members of any such committee who may take the place of any absent
member or members at any meeting of such committee, upon request by the
President or upon request by the chairman of such meeting. Each such
committee shall fix its own rules governing the conduct of its
activities and shall make such reports to the Board of Directors of its
activities as the Board of Directors may request.
3.13 Unanimous Consent Without Meeting. Any action required or
permitted by the articles of incorporation or by-laws or any provision
of law to be taken by the Board of Directors at a meeting or by
resolution may be taken without a meeting if a consent in writing,
setting forth the action so taken, shall be signed by all of the
Directors then in office.
3.14 Meetings by Telephone or by Other Communication Technology.
Meetings of the Board of Directors or committees may be conducted by
telephone or by other communication technology in accordance with
Section 180.0820 of the Wisconsin Business Corporation Law. At any
such meeting, all participating directors shall be informed that a
meeting is taking place at which official business may be transacted.
ARTICLE IV. OFFICERS
4.01 Number. The principal Officers of the Corporation shall be
a President, the number of Vice Presidents as provided in Section 0.05,
a Secretary, and a Treasurer, each of whom shall be elected by the
Board of Directors. Such other Officers and Assistant Officers as may
be deemed necessary may be elected or appointed by the Board of
Directors. Any two or more offices may be held by the same person,
except the offices of President and Secretary and the offices of
President and Vice President.
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 of the shareholders. If the
election of Officers shall not be held at such meeting, such election
shall be held as soon thereafter as conveniently may be. Each Officer
shall hold office until his or her successor shall have been duly
elected or until his or her prior to death, resignation or removal.
4.03 Removal. Any Officer or agent may be removed by the Board
of Directors whenever in its judgment the best interests of the
Corporation will be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed.
Election or appointment shall not of itself create contract rights.
4.04 Vacancies. A vacancy in any principal office because of
death, resignation, removal, disqualification, or otherwise shall be
filled by the Board of Directors for the unexpired portion of the term.
4.05 Chairman of the Board. The Board of Directors may at their
discretion elect a Chairman of the Board. The Chairman of the Board
shall preside at all meetings of the shareholders and Board of
Directors, and shall carry out such other duties and have such
responsibilities as may be specified by the Board of Directors.
4.06 President. The President shall be the Chief Executive
Officer of the Corporation and, subject to the control of the Board of
Directors, shall in general supervise and control all of the business
and affairs of the Corporation. He or she shall, when present, preside
at all meetings of the shareholders and of the Board of Directors. He
or she 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 or she 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 or she 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 r 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 or she may authorize any Vice
President or other Officer or agent of the Corporation to sign, execute
and acknowledge such documents or instruments in his or her place and
stead. In general, he or she shall perform all duties incident to the
office of Chief Executive Officer and such other duties as may be
prescribed by the Board of Directors from time to time.
4.07 The Executive Vice President. The Executive Vice President,
if one be designated, shall assist the President in the discharge of
supervisory, managerial and executive duties and functions. In the
absence of the President or in the event of his or her death, inability
or refusal to act, the Executive Vice President shall perform the
duties of the President, and when so acting shall have all the powers
and duties of the President. He or she shall perform such other duties
as from time to time may be assigned to him or her by the Board of
Directors or the President.
4.08 The Vice Presidents. In the absence of the President and
the Executive Vice President or in the event of their death, inability
or refusal to act, or in the event for any reason it shall be
impracticable for them 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 or her by the President, the Executive
Vice 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 or her authority to act in the
stead of the President.
4.09 The Secretary. The Secretary shall: (a) keep the minutes
of the meetings of the shareholders and of the Board of Directors in
one or more books provided for that purpose; (b) see that all notices
are duly given in accordance with the provisions of these by-laws or as
required by law; (c) be custodian of the corporate records and of the
seal of the Corporation and see that the seal of the Corporation is
affixed to all documents, the execution of which on behalf of the
Corporation under its seal is duly authorized; (d) keep or arrange for
the keeping of a register of the post office address of each
shareholder which shall be furnished to the Secretary by such
shareholder; (e) sign with the President, or a Vice President,
certificates for shares of the Corporation, the issuance of which shall
have been authorized by resolution of the Board of Directors; (f) have
general charge of the stock transfer books of the Corporation; and (g)
in general, perform all duties incident to the office of Secretary and
have such other duties and exercise such authority as from time to time
may be delegated or assigned to him or her by the President or by the
Board of Directors.
4.10 The Treasurer. The Treasurer shall: (a) have charge and
custody of and be responsible for all funds and securities of the
Corporation; (b) receive and give receipts for moneys due and payable
to the Corporation from any source whatsoever, and deposit all such
moneys in the name of the Corporation in such banks, trust companies or
other depositories as shall be selected in accordance with the
provisions of Section 5.04; and (c) in general, perform all of the
duties incident to the office of Treasurer and have such other duties
and exercise such other authority as from time to time may be delegated
or assigned to him or her 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.
4.11 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 of
the Treasurer, respectively, or by the President or the Board of
Directors.
4.12 Other Assistants and Acting Officers. The Board of
Directors shall have the power to appoint any person to act as
assistant to any Officer, or as agent for the Corporation in his or her
stead, or to perform the duties of such Officer whenever for any reason
it is impracticable for such Officer to act personally and such
assistant or acting Officer or other agent so appointed by the Board of
Directors shall have the power to perform all the duties of the office
to which he or she is so appointed to be assistant, or as to which he
or she is so appointed to act, except as such power may be otherwise
defined or restricted by the Board of Directors.
4.13 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 or she 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 in specific
instances. No contract or other transaction between the Corporation
and one or more of its Directors of any other corporation, firm,
association, or entity in which one or more of its Directors of
Officers are financially interested, shall be either void or voidable
because of such relationship or interest or because such Director or
Directors are present at the meeting of the Board of Directors or a
committee thereof which authorizes, approves or ratifies such contract
or transaction or because his, or her, or their votes are counted for
such purpose, if (a) the fact of such relationship or interest is
disclosed or known to the Board of Directors or committee which
authorizes, approves or ratifies the contract or transaction by a vote
or consent sufficient for the purpose without counting the votes or
consents of such interested Directors; or (b) the fact of such
relationship or interest is disclosed or known to the shareholders
entitled to vote and they authorize, approve or ratify such contract or
transaction by vote or written consent; or (c) the contract or
transaction is fair and reasonable to the Corporation. Common or
interested Directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or a committee thereof
which authorizes, approves or ratifies such contract or transactions.
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 depositories 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 or she be present, or in the President's absence by the Executive
Vice President (if one be designated), or in the Executive Vice
President's 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 the Executive Vice President (if one be designated), or
in the Executive Vice President's 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, Executive
Vice President or one of the Vice Presidents of this Corporation in the
order as provided in clause (a) of this Section, 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.
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 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 canceled and no new certificate shall
be issued until the former certificate for a like number of shares
shall have been surrendered and canceled, except as provided in Section
6.06.
6.02 Facsimile Signatures and Seals. The seal of the
Corporation, if the Corporation has elected to have a seal, 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 manually
signed on behalf of a transfer agent, or 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 or she 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 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.
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 or her 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 may be prescribed by or under the
authority of the Board of Directors.
6.07 Consideration for Shares. The shares of the Corporation may
be issued for such consideration as shall be fixed from time to time by
the Board of Directors, provided that any shares having a par value
shall not be issued for a consideration less than the par value
thereof. The consideration to be paid for shares may be paid in whole
or in part, in money, in other property, tangible or intangible, or in
labor or services actually performed for the Corporation. When payment
of the consideration for which shares are to be issued shall have been
received by the Corporation, such shares shall be deemed to be fully
paid and nonassessable by the Corporation. No certificate shall be
issued for any share until such share is fully paid.
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. WAIVER OF NOTICE
Whenever any notice whatever is required to be given under the
provisions of the Wisconsin Business Corporation Law or under the
provisions of the articles of incorporation or by-laws a waiver thereof
in writing signed at any time, whether before or after the time of the
meeting, by the person or persons entitled to such notice shall be
deemed equivalent to the giving of such notice. Such waiver by a
shareholder in respect of any matter of which notice is required under
any provision of the Wisconsin Business Corporation Law shall contain
the same information as would have been required to be included in such
notice under any applicable provisions of said Law, except that the
time and place of meeting need not be stated.
ARTICLE VIII. UNANIMOUS CONSENT WITHOUT A MEETING
Any action required by the articles of incorporation or by-laws or
any provision of the Wisconsin Business Corporation Law to be taken at
a meeting or any other action which may be taken 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 of the shareholders, Directors
or members of a committee thereof entitled to vote with respect to the
subject matter thereof and such consent shall have the same force and
effect as a unanimous vote.
ARTICLE IX. INDEMNIFICATION
9.01 Indemnification for Successful Defense. Within 20 days
after receipt of a written request pursuant to Section 9.03, the
Corporation shall indemnify a Director, Officer, Employee or Agent, 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, Officer, Employee or Agent was a party
because he or she is a Director, Officer, Employee or Agent of the
Corporation.
9.02 Other Indemnification. (a) In cases not included under
Section 9.01, the Corporation shall indemnify a Director, Officer,
Employee or Agent against all liabilities and expenses incurred by the
Director, Officer, Employee or Agent in a proceeding to which the
Director, Officer, Employee or Agent was a party because he or she is a
Director, Officer, Employee, or Agent of the Corporation, unless
liability was incurred because the Director, Officer, Employee or Agent
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 shareholders in connection with a matter in which the
Director, Officer, Employee or Agent has a material conflict of
interest.
(2) A violation of criminal law, unless the Director,
Officer, Employee or Agent had reasonable cause to believe his or
her conduct was lawful or no reasonable cause to believe his or
her conduct was unlawful.
(3) A transaction from which the Director, Officer, Employee
or Agent derived an improper personal profit.
(4) Willful misconduct.
(b) Determination of whether indemnification is required under
this Section shall be made pursuant to Section 9.05.
(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, Officer, Employee or Agent is not required under this
Section.
9.03 Written Request. A Director, Officer, Employee or Agent who
seeks indemnification under Sections 9.01 or 9.02 shall make a written
request to the Corporation.
9.04 Nonduplication. The Corporation shall not indemnify a
Director, Officer, Employee or Agent under Sections 9.01 or 9.02 if the
Director, Officer, Employee or Agent has previously received
indemnification or allowance of expenses from any person, including the
Corporation, in connection with the same proceeding. However, the
Director, Officer, Employee or Agent has no affirmative duty to look to
any other person for indemnification nor to first exhaust his remedies
to seek indemnification from such other person.
9.05 Determination of Right to Indemnification.
(a) Unless otherwise provided by the articles of incorporation or
by written agreement between the Director, Officer, Employee or Agent,
and the Corporation, the Director, Officer, Employee or Agent seeking
indemnification under Section 9.02 shall select one of the following
means for determining his or her right to indemnification:
(1) By a majority vote of a quorum of the Board of Directors
consisting of Directors not at the time parties to the same or
related proceedings. If a quorum of disinterested Directors
cannot be obtained, by majority vote of a committee duly appointed
by the Board of Directors and consisting solely of 2 or more
Directors 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 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 2 arbitrators previously selected.
(4) By an affirmative vote of the majority of shares
represented at a meeting of shareholders at which a quorum 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 9.08.
(6) By any other method provided for in any additional right
to indemnification permitted under Section 9.07.
(b) In any determination under (a), the burden of proof is on the
Corporation to prove by clear and convincing evidence that
indemnification under Section 9.02 should not be allowed.
(c) A written determination as to a Director, Officer, Employee
or Agent's indemnification under Section 9.02 shall be submitted to
both the Corporation and the Director, Officer, Employee or Agent
within 60 days of the selection made under (a).
(d) If it is determined that indemnification is required under
Section 9.02, the Corporation shall pay all liabilities and expenses
not prohibited by Section 9.04 within 10 days after receipt of the
written determination under (c). The Corporation shall also pay all
expenses incurred by the Director, Officer, Employee or Agent, in the
determination process under (a).
9.06 Advance Expenses. Within 10 days after receipt of a written
request by a Director, Officer, Employee or Agent who is a party to a
proceeding, the Corporation shall pay or reimburse his or her
reasonable expenses as incurred if the Director, Officer, Employee or
Agent provides the Corporation with all of the following:
(1) A written affirmation of his or her good faith belief
that he or she has not breached or failed to perform his or her
duties to the Corporation.
(2) A written undertaking, executed personally or on his or
her behalf, to repay the allowance (together with reasonable
interest thereon) to the extent that it is ultimately determined
under Section 9.05 that indemnification under Section 9.02 is not
required and that indemnification is not ordered by a court under
Section 9.08(b)(2). The undertaking under this subsection shall
be an unlimited general obligation of the Director, Officer,
Employee or Agent, and may be accepted without reference to his or
her ability to repay the allowance. The undertaking may be
secured or unsecured.
9.07 Nonexclusivity.
(a) Except as provided in (b), Sections 9.01, 9.02 and 9.06 do
not preclude any additional right to indemnification or allowance of
expenses that a Director, Officer, Employee or Agent may have under any
of the following:
(1) The articles of incorporation.
(2) A written agreement between the Director, Officer,
Employee or Agent, and the Corporation.
(3) A resolution of the Board of Directors.
(4) A resolution, after notice, adopted by a majority vote
of all of the Corporation's voting shares then issued and
outstanding.
(b) Regardless of the existence of an additional right under (a),
the Corporation shall not indemnify a Director, Officer, Employee or
Agent, or permit a Director, Officer, Employee or Agent to retain any
allowance of expenses, unless it is determined by or on behalf of the
Corporation that the Director, Officer, Employee or Agent did not
breach or fail to perform a duty he or she owes to the Corporation
which constitutes conduct under Section 9.02(a)(1), (2), (3) or (4). A
Director, Officer, Employee or Agent who is a party to the same or
related proceeding for which indemnification or an allowance of
expenses is sought may not participate in a determination under this
subsection.
(c) Sections 9.01 to 9.12 do not affect the Corporation's power
to pay or reimburse expenses incurred by a Director, Officer, Employee
or Agent 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 a Director, Officer, Employee or Agent of the
Corporation.
9.08 Court-Ordered Indemnification.
(a) Except as provided otherwise by written agreement between the
Director, Officer, Employee, or Agent and the Corporation, a Director,
Officer, Employee, or Agent 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 may be made for
an initial determination by the court under Section 9.05(a)(5) or for
review by the court of an adverse determination under Section 9.05(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, Officer, Employee or Agent is
entitled to indemnification under Sections 9.01 or 9.02.
(2) That the Director, Officer, Employee or Agent is fairly
and reasonably entitled to indemnification in view of all the
relevant circumstances, regardless of whether indemnification is
required under Section 9.02.
(c) If the court determines under (b) that the Director, Officer,
Employee or Agent is entitled to indemnification, the Corporation shall
pay the Director, Officer, Employee or Agent's expenses incurred to
obtain the court-ordered indemnification.
9.09 Insurance. The Corporation may purchase and maintain
insurance on behalf of an individual who is a Director, Officer,
Employee or Agent of the Corporation against liability asserted against
or incurred by the individual in his or her capacity as a Director,
Officer, Employee or Agent, regardless of whether the Corporation is
required or authorized to indemnify or allow expenses to the individual
against the same liability under Sections 9.01, 9.02, or 9.06.
9.10 Securities Law Claims.
(a) Pursuant to the public policy of the State of Wisconsin, the
Corporation shall provide indemnification, allowance of expenses and
insurance for any liability incurred in connection with a proceeding
involving securities regulation described under (b) to the extent
required or permitted under Sections 9.01 to 9.09.
(b) Sections 9.01 to 9.09 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.
9.11 Liberal Construction. In order for the corporation to
obtain and retain qualified Directors, Officers, Employees, and Agents,
the foregoing provisions shall be liberally administered in order to
afford maximum indemnification of Directors, Officers, Employees, or
Agents, and accordingly, the indemnification above provided for shall
be granted in all cases unless to do so would clearly contravene
applicable law, controlling precedent or public policy.
9.12 Definitions Applicable to This Article.
(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) "Corporation" means this Corporation and any domestic or
foreign predecessor of this Corporation where the predecessor
corporation's existence ceased upon the consummation of a merger or
other transaction.
(c) "Director, Officer, Employee or Agent" means any of the
following:
(1) A natural person who is or was a director, officer,
employee or agent (including attorneys) of this Corporation,
provided, however, that no attorney of the Corporation shall be
considered an agent with respect to those actions taken by such
attorney solely in his capacity as an independent contractor to
the Corporation.
(2) A natural person who, while a Director, Officer,
Employee or Agent, of this Corporation, is or was serving at the
Corporation's request as a Director, Officer, Employee, Agent,
Partner, trustee, member of any governing or decision-making
committee of another Corporation or foreign corporation,
partnership, joint venture, trust or other enterprise.
(3) A natural person who, while a Director, Officer,
Employee or Agent of this Corporation, is or was serving an
employee benefit plan because his or her duties to the Corporation
also impose duties on, or otherwise involve services by, the
person to the plan or to participants or beneficiaries of the
plan.
(4) Unless the context requires otherwise, the estate or
personal representative of a Director, Officer, Employee or Agent.
For purposes of this Article, it shall be conclusively presumed
that any Director, Officer, Employee or Agent serving as a Director,
Officer, Employee, Agent, partner, trustee, member of any governing or
decision-making committee of an affiliate shall be so serving at the
request of the Corporation.
(d) "Expenses" include fees, costs, charges, disbursements,
attorney fees and other expenses incurred in connection with a
proceeding.
(e) "Liability" includes the obligation to pay a judgment,
settlement, penalty, assessment, forfeiture or fine, including an
excise tax assessed with respect to an employee benefit plan, and
reasonable expenses.
(f) "Party" includes a natural person who was or is, or who is
threatened to be made, a named defendant or respondent in a proceeding.
(g) "Proceeding" means any threatened, pending or completed
civil, criminal, administrative or investigative action, suit,
arbitration or other proceeding, whether formal or informal, which
involves foreign, federal, state or local law and which is brought by
or in the right of the Corporation or by any other person.
ARTICLE X. SEAL
There shall be no corporate seal.
ARTICLE XI. AMENDMENTS
11.01 By Shareholders. These by-laws may be altered, amended or
repealed and new by-laws may be adopted by the shareholders by
affirmative vote of not less than a majority of the shares present or
represented at an annual or special meeting of the shareholders at
which a quorum is in attendance.
11.02. By Directors. These by-laws may also be altered, amended
or repealed and new by-laws may be adopted by the board of Directors by
affirmative vote of a majority of the number of Directors present at
any meeting at which a quorum is in attendance, but no by-law adopted
by the shareholders or subscribers shall be amended or repealed by the
Board of Directors if the by-law so adopted so provides.
11.03 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 shares 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.