EXHIBIT 3
AMENDED AND RESTATED BYLAWS
OF
MGIC INVESTMENT CORPORATION
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 ("Annual Meeting") shall be held
on the first Monday in May, at such time or on such other day
as may be designated by resolution of the Board of Directors.
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.Purposes of Annual Meeting. At each Annual
Meeting, the shareholders shall elect the number of directors
equal to the number of directors in the class whose term
expires at the time of such Annual Meeting and transact such
other business as may properly come before the Annual Meeting
in accordance with Section 2.14 of these Bylaws. If the
election of directors shall not be held on the date designated
herein, or fixed as herein provided, for any Annual Meeting,
or any adjournment thereof, the Board of Directors shall cause
the election to be held at a special meeting of shareholders
(a "Special Meeting") as soon thereafter as is practicable.
2.03.Special Meetings.
(a) A Special Meeting, unless otherwise prescribed
by the Wisconsin Insurance Corporation Law, may be called only
by (i) the Board of Directors, (ii) the Chairman of the Board
or (iii) the President and shall be called by the Chairman of
the Board or the President upon the demand, in accordance with
this Section 2.03, 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 ten 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 ten 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 ten 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 Bylaws.
(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 2.03), 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 seventy 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 2.03,
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
a 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 2.03 is ten
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 2.03 is more
than ten, 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 2.03 had engaged or intends
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 2.03 and/or the written
agreement described in this paragraph (d)
in order to prevent the purposes of this
Section 2.03 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 Board of Directors, the
Chairman of the Board or the President shall have called such
meeting. In the case of any Special Meeting called by the
Chairman of the Board or 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 seventy days after the
Meeting Record Date (as defined in Section 2.06 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 ten 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. local 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 Board of
Directors, the Chairman of the Board or the President may
consider such factors as it or he deems relevant within the
good faith exercise of its or his 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) five 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 five 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 Bylaws, "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.
2.04.Place of Meeting. The Board of Directors, the
Chairman of the Board, the President or the Secretary may
designate any place, either within or without the State of
Wisconsin, as the place of meeting for any Annual Meeting or
for any Special Meeting or for any postponement or adjournment
thereof. If no designation is made, the place of meeting
shall be the principal business 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 Chairman of the Board, the President or
the Secretary.
2.05.Notice of Meeting. Written or printed notice
stating the date, time and place of any Annual Meeting or
Special Meeting shall be delivered not less than three 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 Chairman of the Board, the President or the Secretary,
to each shareholder of record entitled to vote at such meeting
and to such other shareholders as required by the Wisconsin
Business Corporation Law. In the event of any Demand Special
Meeting, such notice shall be sent not more than 45 days after
the Delivery Date. If mailed, notice pursuant to this Section
2.05 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 record books of the
corporation, with postage thereon prepaid. Unless otherwise
required by the Wisconsin Business Corporation Law or the
articles of incorporation of the corporation, 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 2.03 of
these Bylaws 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 Bylaws. 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.
2.06.Fixing of Record Date. The Board of Directors
may fix in advance a 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 purpose of
determining shareholders entitled to notice of, and to vote
at, such meeting ("Meeting Record Date"). In the case of any
Demand Special Meeting, (i) the Meeting Record Date shall not
be 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, and 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 in advance a 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.
2.07.Voting Records. 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 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 expense, during the period that it is available for
inspection pursuant to this Section 2.07. The corporation
shall make the shareholders' list available at the meeting and
any shareholder or his 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 a meeting of shareholders.
2.08.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 2.08. Except as
otherwise provided in the articles of incorporation of this
corporation 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 articles
of incorporation of the corporation or the Wisconsin Business
Corporation Law requires a greater number of affirmative
votes. Unless otherwise provided in the articles of
incorporation of the corporation, 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 Chairman of the Board or 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.
2.09.Conduct of Meetings. The Chairman of the
Board, and in his absence, the Vice Chairman of the Board, and
in his absence, the President, and in their 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 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 Annual Meetings
and Special Meetings, but in the absence of the Secretary, the
presiding officer may appoint any other person to act as
secretary of the meeting.
2.10.Proxies. At all Annual Meetings and Special
Meetings, 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
eleven months from the date of its signing unless a different
period is expressly provided in the appointment form. Unless
otherwise provided, a proxy may be revoked 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 does not
of itself constitute a revocation. The Board of Directors
shall have the power and authority to make rules establishing
presumptions as to the validity and sufficiency of proxies.
2.11.Voting of Shares.
(a) Each outstanding share shall be entitled to one
vote upon each matter submitted to a vote at any 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 the articles of incorporation of the
corporation.
(b) Shares held by another corporation, if a
sufficient number of shares entitled to elect a majority of
the directors of such other corporation is held directly or
indirectly by this corporation, shall not be entitled to vote
at any Annual Meeting or Special Meeting, but shares held in a
fiduciary capacity may be voted.
2.12.Acceptance of Instruments Showing Shareholder
Action. If the name signed on a vote, consent, waiver or
proxy appointment corresponds to the name of a 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.
2.13.Waiver of Notice by Shareholders. A
shareholder may waive any notice required by the Wisconsin
Business Corporation Law, the articles of incorporation of the
corporation or these Bylaws 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.
2.14.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 Bylaw 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
offices of the corporation not less than 45 days nor
more than 70 days prior to the first annual
anniversary of the date set forth in the
corporation's proxy statement for the immediately
preceding Annual Meeting as the date on which the
corporation first mailed definitive proxy materials
for the immediately preceding Annual Meeting (the
"Anniversary Date"); provided, however, that in the
event that the date for which the Annual Meeting is
called is advanced by more than 30 days or delayed
by more than 30 days from the first annual
anniversary of the immediately preceding Annual
Meeting, notice by the shareholder to be timely must
be so delivered not earlier than the close of
business on the 100th day prior to the date of such
Annual Meeting and not later of (A) the 75th day
prior to the date of such Annual Meeting or (B) the
10th day following the day on which public
announcement of the date of such Annual Meeting is
first made. In no event shall the announcement of
an adjournment of an Annual Meeting commence a new
time period for the giving of a shareholder notice
as described above. 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 this 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 Bylaws, 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
45 days prior to the Anniversary Date, 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 offices 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
2.05 of these Bylaws. 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 offices of the corporation
not earlier than ninety 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; Number and Classification; Vacancy.
(a) 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, the Board of
Directors.
(b) The number of directors of the corporation shall be not
less than 7 nor more than 17, as determined from time to time
by the Board of Directors, divided into three substantially
equal classes and designated as Class I, Class II and Class
III, respectively. Commencing at a Special Meeting to be held
promptly after the adoption of these Bylaws, a class of
directors shall be elected to Class I for a term to expire at
the 1992 Annual Meeting, a class of directors shall be elected
to Class II for a term to expire at the 1993 Annual Meeting
and a class of directors shall be elected to Class III for a
term to expire at the 1994 Annual Meeting and, in each case,
until their successors are duly qualified and elected. At
each Annual Meeting thereafter the successors to the class of
directors whose term shall expire at the time of Annual
Meeting shall be elected to hold office until the third
succeeding Annual Meeting, and until their successors are duly
qualified and elected or until there is a decrease in the
number of directors that takes effect after the expiration of
their term.
(c) Any vacancy occurring in the Board of Directors,
including a vacancy created by an increase in the number of
directors, shall be filled by the affirmative vote of a
majority of the directors then in office, though less than a
quorum of the Board of Directors, or by a sole remaining
director. Any director so elected shall serve until the next
election of the class for which such director shall have been
chosen and until his successor shall be duly qualified and
elected.
3.02. Resignations and Qualifications. A director may
resign at any time by delivering written notice which complies
with the Wisconsin Business Corporation Law to the Board of
Directors, the Chairman of the Board or to the corporation. A
director's resignation is effective when the notice is
delivered unless the notice specifies a later effective date.
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 Bylaw
immediately after the Annual Meeting. 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 to directors at or before such Annual Meeting.
The Board of Directors may provide, by resolution, the date,
time and place, either within or without the State of
Wisconsin, for the holding of additional regular meetings of
the Board of Directors 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 Chairman
of the Board, President, Secretary or any two directors. The
Chairman of the Board, the President or the Secretary may
designate any place, either within or without the State of
Wisconsin, as the place for holding any such special meeting.
If no designation is made, 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 to each director not less than 24 hours
prior to the meeting by giving oral, telephonic or written
notice to a director communicated in person, or by telegram,
facsimile or other form of wire or wireless communication, or
not less than 48 hours prior to a meeting by delivering,
sending by private carrier or mailing written notice to the
business address or such other address as a director shall
have designated in writing filed with the Secretary. 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 addressed as
in case of notice by mail is delivered to the telegraph
company. If notice is given by private carrier, such notice
shall be deemed to be effective when the notice addressed as
in case of notice by mail is delivered to the private carrier.
Whenever any notice whatever is required to be given to any
director of the corporation under the articles of
incorporation of the corporation, these Bylaws or any
provision of the Wisconsin Business Corporation Law, a waiver
thereof in writing, signed at any time, whether before or
after the date and 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 its permanent corporate records, but only for so long
as such other permanent corporate records are maintained. 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.
3.06. Quorum. Except as otherwise provided by the Wisconsin
Business Corporation Law, the articles of incorporation of the
corporation or these Bylaws, a majority of the number of
directors fixed 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 any meeting of the Board of
Directors or any committee thereof, as the case may be, from
time to time without further notice. Except as otherwise
provided by the Wisconsin Business Corporation Law, the
articles of incorporation or by these Bylaws, a quorum of any
committee of the Board of Directors created pursuant to
Section 3.12 hereof shall consist of a majority of the number
of directors appointed to serve on the committee, but a
majority of the members present (though less than a 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 the Wisconsin Business
Corporation Law, the articles of incorporation of this
corporation or these Bylaws.
3.08. Conduct of Meetings. The Chairman of the Board, and
in his absence, the Vice Chairman of the Board, and in their
absence, the President and in their absence, a Vice President
in the order provided under Section 4.08, and in their
absence, any director chosen by the directors present, shall
call 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.
3.09. Compensation. The Board of Directors, 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.
3.10. Unanimous Consent Without Meeting. Any action
required or permitted by the articles of incorporation of the
corporation, these Bylaws or any provision of the Wisconsin
Business Corporation Law to be taken by the Board of Directors
(or any committee thereof created pursuant to Section 3.12) 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. Any such consent action may
be signed in separate counterparts and shall be effective when
the last director or committee member signs the consent,
unless the consent specifies a different effective date.
3.11. Presumption of Assent. A director of the corporation
who is present at a meeting of the Board of Directors or any
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.
(a) (i) An Executive Committee consisting of three or more
members of the Board of Directors be and it hereby is created.
The Board of Directors by the affirmative vote of a majority
of the number of directors fixed in Section 3.01, shall
designate the members of the Executive Committee, one of whom
shall be designated by the Board of Directors as Chairman of
the Executive Committee. The Executive Committee shall have
and may exercise all powers of the Board of Directors in the
management of the business and affairs of the corporation when
the Board of Directors is not in session; provided, however,
that the Executive Committee shall have no power or authority
to take action on behalf of the Board of Directors to the
extent limited in Section 3.12(b) of these Bylaws or the
Wisconsin Business Corporation Law. The Board of Directors
shall have the power at any time to fill vacancies in, to
change the members of, or to dissolve the Executive Committee
by the affirmative vote of a majority of the directors then in
office, though less than a quorum of the Board of Directors,
or by a sole remaining director.
(ii) Notice of each meeting of the Executive Committee shall
be given to each member thereof in accordance with Section
3.05. The attendance or participation of a committee member
at a meeting shall constitute a waiver of required notice to
him of such meeting, unless the committee member 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, not
the purpose of, any meeting of the Executive Committee need be
specified in the notice, or waiver of notice, of such meeting.
(iii) The act of the majority of the members present at a
meeting at which a quorum is present shall be the act of the
Executive Committee, unless the act of a greater number is
required by the Wisconsin Business Corporation Law or by the
articles incorporation of the corporation or these Bylaws.
(iv) The Chairman of the Executive Committee, and, in his
absence, any member chosen by the members present, shall call
meetings of the Executive Committee to order and shall act as
chairman of the meeting. The presiding officer may appoint
any member or other person present to act as secretary of the
meeting. Unless otherwise provided by the Wisconsin Business
Corporation Law, the articles of incorporation of the
corporation or these Bylaws, the Executive Committee shall fix
its own rules governing the conduct of its activities and
shall keep and report to the Board of Directors regular
minutes of the proceedings of the Executive Committee for
subsequent approval by the Board of Directors.
(b) The Board of Directors by resolution adopted by the
affirmative vote of a majority of the number of directors
fixed in Section 3.01 may designate one or more other
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 Chairman
of the Board or the President or upon request of the chairman
of such meeting. Each committee (other than the Executive
Committee) shall consist of two or more directors elected by,
and to 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 (including the
Executive 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
articles of incorporation of the corporation; (e) adopt, amend
or repeal these Bylaws; (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 (including the Executive
Committee) may employ counsel, accountants and other
consultants to assist it in the exercise of its authority.
Notices of committee meetings shall be given to committee
members in compliance with Section 3.05. 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. Telephonic Meetings. Except as herein provided and
notwithstanding any place set forth in the notice of the
meeting or these Bylaws, members of the Board of Directors
(and any committees thereof created pursuant to Section 3.12)
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 disputation 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.
ARTICLE IV. OFFICERS
4.01. Number. The principal offices of the corporation
shall be a President, one or more Vice Presidents, as
authorized from time to time by the Board of Directors, a
Controller, a Secretary and a Treasurer and such other
officers and agents as the Board of Directors may from time to
time determine necessary, each of whom shall be chosen by the
Board of Directors. The Board of Directors may also from time
to time elect or appoint a Chairman of the Board and a Vice
Chairman of the Board. The Board of Directors may also
authorize any duly authorized officer to appoint one or more
officers or assistant officers. Any number of 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 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 practicable. Each officer
shall hold office until his successor shall have been duly
chosen or until his prior death, resignation or removal.
4.03. Removal. The Board of Directors may remove any
officer and, unless restricted by the Board of Directors or
these Bylaws, 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. The election or appointment of an
officer does not of itself create contract rights.
4.04. Resignations and Vacancies.
(a) 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.
(b) A vacancy in the office of President, Secretary or
Treasurer shall be filled by the Board of Directors for the
unexpired portion of the term. A vacancy in any other office
may also be filled by the Board of Directors, should it deem
it necessary to do so. If a resignation of an officer is
effective at a later date as contemplated by this Section
4.04, the Board of Directors may fill the pending vacancy
before the effective date if the Board of Directors provides
that the successor may not take office until the effective
date.
4.05. Chairman of the Board. The Chairman of the Board
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 the business and affairs of the
corporation and shall determine long-range, strategic
direction and objectives and shall formulate major corporate
policies. The Chairman of the Board shall preside at all
Annual Meetings and Special Meetings and at all meetings of
the Board of Directors. He shall also in general perform such
other duties and functions as may be assigned herein and as
may be delegated or assigned to him by the Board of Directors
from time to time. The Chairman of the Board shall have
authority, subject to such rules as may be prescribed by the
Board of Directors, to appoint and remove 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. The Chairman 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 departments or
instruments necessary or proper to be executed in the course
of the corporation's regular business, or which shall be
authorized by the Board of Directors.
4.06. Vice Chairman of the Board. The Vice Chairman of the
Board, if one shall be elected or appointed, shall in the
absence of the Chairman of the Board, perform the duties and
functions of the Chairman of the Board. He shall also in
general perform such other duties and functions as may be
delegated or assigned to him by the Board of Directors or the
Chairman of the Board.
4.07. President. The President shall perform such duties as
may be delegated to or assigned to him by the Chief Executive
Officer or by the Board of Directors from time to time. The
President shall have authority to sign, execute and
acknowledge, on behalf of the corporation, all deeds,
mortgages, securities, contracts, leases, reports and all
other documents necessary or proper to be executed in the
course of the corporation's regular business, or which shall
be authorized by 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.
4.08. The Vice Presidents. The Board of Directors shall
elect one or more Vice Presidents as it shall deem necessary
for the carrying out of the corporation's business, some of
whom may be designated as Executive Vice Presidents and some
of whom may be designated as Senior Vice Presidents. In the
absence of the President or in the event of his death,
inability or refusal to act, the Vice President (or, in the
event there be more than one Vice President, giving priority
to any Executive Vice Presidents, and then to any Senior Vice
Presidents (in the order of their respective priorities), but
otherwise in the order designated by the Board of Directors or
in the absence of any such designation, then in order of
choosing) shall perform the duties of the President and, when
so acting, shall have all the powers of and be subject to all
restrictions upon the President. Any Vice President shall
perform such 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.
4.09. The Secretary. The Secretary shall: (a) keep the
minutes of the Annual Meetings and Special Meetings and other
meetings of the Board of Directors in one or more books
provided for that purpose (including records of consent
actions taken by the shareholders or the Board of Directors
(or committees thereof) without a meeting; (b) see that all
notices are duly given in accordance with the provisions of
these Bylaws 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 a form that permits preparation of a list of
the names and addresses of all shareholders, by class or
series of shares, if any, and showing the number and class or
series of shares, if any, 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, any Vice President or 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 by the President, any Vice President or 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. Controller. Subject to the control and supervision of
the Board of Directors, the Controller shall have charge of
the books of account of the corporation and maintain
appropriate accounting records and he shall perform such other
duties and exercise such other authority as from time to time
may be delegated or assigned to him by the Board of Directors,
the President or the Vice President responsible for financial
matters.
4.12. 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, any Vice
President or the Board of Directors.
4.13. 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 an authorized officer shall have the power to perform all
the duties of the office to which he is so appointed to be
assistant, or as to which he is so appointed to act, except as
such power may be otherwise defined or restricted by the Board
of Directors or the appointing officer.
4.14. Salaries. The salaries of the principal officers
shall be fixed from time to time by the Board of Directors or,
except in the case of the Chairman of the Board, the Vice
Chairman of the Board, President or any Executive Vice
President, 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 any Vice
President 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 loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued
in its name unless authorized by or under the authority of a
resolution of the Board of Directors. Such authorization may
be general or confined to specific instances.
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 the Corporation. Subject
always to the specific directions of the Board of Directors,
any share or shares of stock or other securities issued by any
other corporation and owned or controlled by the corporation
may be voted at any meeting of security holders of such other
corporation by the President or by any Vice President who may
be present. Whenever, in the judgment of the President or of
any Vice President, it is desirable for the corporation to
execute a proxy or written consent in respect to any share or
shares of stock or other securities issued by any other
corporation and owned by the corporation, such proxy or
consent shall be executed in the name of the corporation by
the President or by any one of the Vice Presidents and, if
required, should be attested by the Secretary or an Assistant
Secretary under the corporate seal without necessity of any
authorization by the Board of Directors. Any person or
persons designated in the manner above stated as the proxy or
proxies of the corporation shall have full right, power and
authority to vote the share or shares of stock issued by such
other corporation and owned by the corporation the same as
such share or shares might be voted by the corporation.
5.06. No Nominee Procedures. The corporation has not
established, and nothing in these Bylaws 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 Treasurer or an Assistant Treasurer or 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 registered upon 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 Signature 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
Treasurer or Assistant Treasurer or the Secretary or an
Assistant Secretary upon a certificate may be facsimiles if
the certificate is manually countersigned (a) by a transfer
agent other than the corporation or its employee, or (b) by a
registrar other than the corporation or its employee.
6.03. Signature by Former Officers. The validity of a share
certificate is not affected if a person who signed the
certificate (either manually or in facsimile) no longer holds
office when the certificate is issued. If any officer, who
has signed or whose facsimile signature has been placed upon
any certificate for shares, has 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 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
such 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. The Board of
Directors may direct a new certificate or certificates to be
issued in place of any certificate or certificates theretofore
issued by the corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate
or certificates, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require
the person requesting such new certificate or certificates, or
his or her legal representative, to give the corporation a
bond in such sum as it may direct as indemnity against any
claim that may be made against the corporation with respect to
the certificate alleged to have been lost, stolen or
destroyed.
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. 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 respects 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 statues 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 Directions shall provide a
corporate seal for the corporation 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. INDEMNIFICATION
8.01. Certain Definitions. All capitalized terms
used in this Article VIII and not otherwise hereinafter
defined in this Section 8.01 shall have the meaning set forth
in Section 180.0850 of the Statute. The following terms
(including any plural forms thereof) used in this Article VIII
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 8.04.
(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 8.04,
to constitute misconduct under Section 180.0851 (2) (a) 1, 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
VIII, 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 VIII, the term
"Party" shall also include any Director or Officer or employee
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 VIII, 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 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.
8.02 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.
8.03. Procedural Requirements.
(a) A Director or Officer who seeks indemnification under
Section 8.02 shall make a written request therefor to the
Corporation. Subject to Section 8.03 (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 8.05).
(b) No indemnification shall be required to be paid by the
Corporation pursuant to Section 8.02 if, within such 120-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 of (ii) a Disinterested Quorum cannot be obtained.
(c) In either case of nonpayment pursuant to Section
8.03(b), the Board shall immediately authorize by resolution
that an Authority, as provided in Section 8.04, 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 120-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.
8.04. Determination of Indemnification.
(a) If the Board authorizes an Authority to determine a
Director's or Officer's right to indemnification pursuant to
Section 8.03, 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; or
(ii) A panel of three arbitrators selected from the
panels of arbitrators of the American Arbitration
Association in Milwaukee, 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.
(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 8.05), 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 8.04 by either the Corporation or the Director or
Officer, including, without limitation, all Expenses of the
selected Authority, shall be paid by the Corporation.
8.05. 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 8.05 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 8.04.
(b) If the Director or Officer must repay any previously
advanced Expenses pursuant to this Section 8.05, such Director
or Officer shall not be required to pay interest on such
amounts.
8.06. 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 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
8.06(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.
8.07. 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 VIII.
8.08. Severability. If any provision of this Article VIII
shall be deemed invalid or inoperative, or if a court of
competent jurisdiction determines that any of the provisions
of this Article VIII contravene public policy, this Article
VIII 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.
8.09. Nonexclusively of Article VIII. The rights of a
Director, Officer or employee (or any other person) granted
under this Article VIII 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 VIII shall be
deemed to limit the Corporation's obligations to indemnify
against Liabilities or allow Expenses to a Director, Officer
or employee under the Statute.
8.10. Contractual Nature of Article VIII; Repeal or
Limitation of Rights. This Article VIII 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 VIII 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 VIII with regard to acts, omissions or events arising
prior to such repeal or limitation.
ARTICLE IX. FISCAL YEAR
9.01. The fiscal year of the corporation shall be the
calendar year.
ARTICLE X. AMENDMENTS
10.01. By Shareholders. Except as otherwise
provided in the articles of incorporation of the corporation
or these Bylaws, these Bylaws may be altered, amended or
repealed and new Bylaws may be adopted by the shareholders at
any Annual Meeting or Special Meeting at which a quorum is in
attendance.
10.02. By Directors. Except as otherwise provided in the
articles of incorporation of the corporation or these Bylaws,
these Bylaws may also be altered, amended or repealed and new
Bylaws 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; provided, however,
that notice of any proposal to take any such action shall have
been given to each director not less than 72 hours prior to
the meeting by one of the methods set forth in Section 3.05;
but no Bylaw adopted by the shareholders shall be amended,
repealed or readopted by the Board of Directors unless the
Bylaw so adopted so permits.
10.03. Implied Amendments. Except as otherwise provided in
the articles of incorporation of the corporation or these
Bylaws, any action taken or authorized by the shareholders or
by the Board of Directors, which would be inconsistent with
the Bylaws 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 Bylaws so that the
Bylaws would be consistent with such action, shall be given
the same effect as though the Bylaws had been temporarily
amended or suspended so far, but only so far, as is necessary
to permit the specific action so taken or authorized.