Exhibit 3.13
BYLAWS
of
SERVICE AMERICA CORPORATION OF WISCONSIN
ADOPTED
November 29, 1989
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...................................................................................4
2.11 Voting of Shares by Certain Holders................................................................4
(a) Other Corporations.........................................................................4
(b) Legal Representatives and Fiduciaries......................................................4
(c) Pledges....................................................................................4
(d) Treasury Stock and Subsidiaries............................................................5
(e) Minors.....................................................................................5
(f) Incompetents and Spendthrifts..............................................................5
(g) Joint Tenants..............................................................................5
ARTICLE III. BOARD OF DIRECTORS
3.01 General Powers and Number..........................................................................5
3.02 Tenure and Qualifications..........................................................................6
3.03 Regular Meetings...................................................................................6
3.04 Special Meetings...................................................................................6
3.05 Notice of Meetings.................................................................................6
3.06 Quorum.............................................................................................7
3.07 Manner of Acting...................................................................................7
3.08 Conduct of Meetings................................................................................7
3.09 Vacancies..........................................................................................7
3.10 Compensation.......................................................................................7
3.11 Presumption of Assent..............................................................................8
3.12 Committees.........................................................................................8
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ARTICLE IV. OFFICERS
4.01 Number.............................................................................................8
4.02 Election and Term of Office........................................................................9
4.03 Removal............................................................................................9
4.04 Vacancies..........................................................................................9
4.05 President..........................................................................................9
4.06 Vice Presidents...................................................................................10
4.07 Secretary.........................................................................................10
4.08 Treasurer.........................................................................................10
4.09 Assistant Secretaries and Assistant Treasurers....................................................11
4.10 Other Assistants and Acting Officers..............................................................11
4.11 Salaries..........................................................................................11
ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS
5.01 Contracts.........................................................................................11
5.02 Loans.............................................................................................12
5.03 Checks, Drafts, etc...............................................................................12
5.04 Deposits..........................................................................................12
5.05 Voting of Securities Owned by this Corporation....................................................12
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.01 Certificate for Shares............................................................................13
6.02 Facsimile Signatures and Seal.....................................................................13
6.03 Signature by Former Officers......................................................................13
6.04 Transfer of Shares................................................................................13
6.05 Restrictions on Transfer..........................................................................14
6.06 Lost, Destroyed or Stolen Certificates............................................................14
6.07 Consideration for Shares..........................................................................14
6.08 Stock Regulations.................................................................................14
ARTICLE VII. WAIVER OF NOTICE
ARTICLE VIII. UNANIMOUS CONSENT WITHOUT A MEETING
ARTICLE IX. INDEMNIFICATION
9.01 Indemnification for Successful Defense............................................................15
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9.02 Other Indemnification.............................................................................15
9.03 Written Request...................................................................................16
9.04 Nonduplication....................................................................................16
9.05 Determination of Right to Indemnification.........................................................16
9.06 Advance Expenses..................................................................................17
9.07 Nonexclusivity....................................................................................18
9.08 Court-Ordered Indemnification.....................................................................19
9.09 Indemnification of Employees or Agents............................................................19
9.10 Insurance.........................................................................................20
9.11 Securities Law Claims.............................................................................20
9.12 Liberal Construction..............................................................................20
9.13 Definitions Applicable to this Article............................................................20
ARTICLE X. SEAL
ARTICLE XI. AMENDMENTS
11.01 By Shareholders..................................................................................22
11.02 By Directors.....................................................................................22
11.03 Implied Amendments...............................................................................22
ARTICLE XII. STOCK TRANSFER RESTRICTION
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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. The address of the registered office may be
changed from time to time by the Board of Directors or, if within the county, 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 share holders
shall be held on the second Tuesday of October in each year at 10:00 o'clock
a.m. or at such other time and date as may be fixed by or under the authority of
the Board of Directors, for the purpose of electing 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
there of, 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 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
meet-
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ing may designate any place, whether 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 five
(5) days (unless a longer period is required by law or the articles of
incorporation) nor more than fifty (50) days before the date of the meeting,
either personally or by mail, by or at the direction of the President, the
Secretary, or the person(s) 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 or her 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 adjournment thereof, or shareholders entitled to
receive 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, fifty 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 fifty
days and, in case of a meeting of shareholders, at 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
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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 Records. 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 record 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. Except as otherwise provided in the articles of
incorporation, a majority of the shares entitled to vote, represented in person
or by proxy, shall constitute a quorum at a meeting of shareholders. If a quorum
is present, the affirmative vote of the majority of the shares represented at
the meeting and entitled to vote on the subject matter shall be the act of the
shareholders unless the vote of a greater number or voting by classes is
required by the Wisconsin Business Corporation Law or the articles of
incorporation. If less than a quorum is 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 noticed. The shareholders present at a duly organized
meeting
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may continue to transact business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum.
2.08 Conduct of Meetings. The President, or in the President's
absence, a Vice President in the order provided under Section 4.06, and in their
absence, any person chosen by the shareholders present shall call the meeting of
the shareholders to order and shall act as chairman of the meeting, and the
Secretary shall act as secretary of all meetings of the share holders, 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 duly authorized attorney-in-fact. Such proxy shall be
filed with the Secretary 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 a 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
as to the validity and suffi ciency of proxies.
2.10 Voting of Shares. Each outstanding share shall be
entitled to one vote on 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
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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, of the
designation of some other person by the board of directors or
the bylaws of such other corporation.
(b) Legal Representatives and Fiduciaries. Shares
held by a personal representative, an administrator, executor,
guardian, conservator, trustee in bankruptcy, receiver, or
assignee for creditors may be voted by such person, 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 such
person's incumbency and the number of shares held. Shares
standing in the name of a fiduciary may be voted by him or
her, 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, given in
writing to the Secretary, that such manner of voting is
prohibited or otherwise directed by the document creating the
fiduciary relationship.
(c) Pledges. A shareholder whose shares are pledged
shall be entitled to vote such shares in person
or by proxy, 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.
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(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 of authority of the individual
present or having signed 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.
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 two (2). The number of directors may be
increased or decreased from time to time by amendment to this Section adopted by
the shareholders or the Board of Directors but no decrease shall have the effect
of shortening the term of an incumbent director.
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3.02 Tenure and Qualifications. Each director shall hold
office until next annual meeting of shareholders and until the director's
successor shall have been elected, or until his or her prior death, resignation
or removal. Any director or the entire Board of Directors may be removed from
office, with or without cause, by affirmative vote of a majority of the
outstanding shares entitled to vote for the election of such director, of Board
of Directors, taken at a meeting of shareholders called for that purpose. A
director may resign at any time by filing a 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 bylaw, 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 or any two
directors. The persons 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 of Meetings. 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 telephone or
telegram to each director at his or her business or home address or at such
other address as such director shall have designated in writing filed with the
Secretary, in each case not less than 48 hours prior thereto. If mailed, such
notice shall be deemed to be delivered
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when deposited in the United States mail so addressed, with postage thereon
prepaid. If notice be given by telegram, such notice shall be deemed to be
delivered when the telegram is delivered to the telegraph company; if by
telephone, at the time the call is completed. 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. A majority of the number of directors as provided
in Section 3.01 shall constitute a quorum for the transaction of business at any
meeting of the Board of Directors, but a majority of the directors present
(though less than such quorum) may adjourn the meeting from time to time without
further notice.
3.07 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 corporation's Articles of Incorporation
or these Bylaws.
3.08 Conduct of Meetings. The President, and in the
President's 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 to order and shall chair 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 removal of a director(s), the shareholders shall have the right
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to fill such vacancy at the same meeting or any adjournment thereof.
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,
and the manner and time of payment thereof, or may delegate such authority to an
appropriate committee. The Board of Directors also shall have authority to
provide for or to delegate authority to an appropriate committee to provide for
reasonable pensions, disability or death benefits, and other benefits or
payments, to directors, officers and employees and to their estates, families,
dependents or beneficiaries on account of prior services rendered by such
directors, officers and employees to the corporation.
3.11 Presumption of Assent. A director who is present at a
meeting of Board of Directors or a committee thereof of which he is a member at
which action on any corporate matter is taken shall be presumed to have assented
to the action taken unless his dissent shall be entered in the minutes of the
meeting or unless he shall file his 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 3.01, 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
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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.
ARTICLE IV. OFFICERS
4.01 Number. The principal officers shall be a President, one
or more Vice Presidents (the number and designations to be determined by the
Board of Directors), a Secretary, and a Treasurer, each of whom shall be elected
by the Board of Directors. The Board of Directors may designate one of the Vice
Presidents as the Executive Vice President. Such other officers and assistant
officers as may be deemed necessary may be elected or appointed by the Board of
Directors or the President. 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 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 successor shall have been duly elected or
until his prior 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
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otherwise, shall be filled by the Board of Directors for the unexpired portion
of the term.
4.05 President. The President shall be the principal executive
officer 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 preside at all meetings of the shareholders and of the Board of
Directors. The President 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. The President
shall have authority to sign, execute and acknowledge, on behalf of the
corporation, all deeds, mortgages, bonds, stock certificates, contracts, leases,
reports and all other documents or instruments necessary or proper to be
executed in the course of the corporation's regular business, or which
shall be authorized by resolution of the Board of Directors; and, except as
otherwise provided by law or the Board of Directors, the President 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 shall perform all duties incident to the office of President and such
other duties as may be prescribed by the Board of Directors from time to time.
4.06 Vice Presidents. In absence of the President, or in the
event of the President's death, inability or refusal to act, or in the event for
any reason it shall be impracticable for the President to act personally, the
Vice President (or in the event there be more than one Vice President, the Vice
Presidents in the order designated by the Board of Directors, or in the absence
of any designation, then in the order of their election) shall perform the
duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President. Any Vice President may sign,
with the Secretary or Assistant Secretary, certificates for shares of the
corporation; and shall perform such other duties and have such authority as from
time to time may be delegated or assigned to him or her by the President or the
Board of Directors. The execution of any instrument of the corporation by
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any Vice President shall be conclusive evidence, as to third parties, of the
Vice President's authority to act in the stead of the President.
4.07 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 bylaws or as required by law; (c) be
custodian of the corporate records and of the seal of the corporation, if any,
and see that the seal of the corporation, if any, is affixed to all documents
which are authorized to be executed on behalf of the corporation under its seal;
(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.
4.08 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 depositaries 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.
4.09 Assistant Secretaries and Assistant Treasurers. There
shall be such number of Assistant Secretaries and Assistant Treasurers as the
Board of Directors or President 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 Secretaries
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and Assistant Treasurers, in general, shall perform such duties and have such
authority as from time to time shall be delegated or assigned to them by the
Secretary or the Treasurer, respectively, or by the President or the Board of
Directors.
4.10 Other Assistants and Acting Officers. The Board of
Directors and President shall have the power to appoint any person to act as
assistant to any officer, or as agent for the corporation in the officer's
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 President shall
have the power to perform all the duties of the office to which that person 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 or President.
4.11 Salaries. The salaries of the principal officers shall be
fixed from time to time by the Board of Directors or by a duly authorized
committee thereof, and no officer shall be prevented from receiving such salary
by reason of the fact that such officer is also a director of the corporation.
ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS
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. No contract or
other transaction between the corporation and one or more of its
directors or any other corporation, firm, association, or entity in which one or
more of its directors are directors or officers or 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 the votes of the interested director(s) are
counted for such purpose, if (1) the fact of such relationship or interest is
disclosed or known to the Board of Directors or committee which authorizes,
approves or
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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
(2) 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 (3) 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 transaction.
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(s), employee(s) or
agents of the corporation and in such manner as shall from time to time be
determined by or under the authority of a resolution of the Board of Directors.
5.04 Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the corporation
in such banks, trust companies or other depositaries as may be selected by or
under the authority of a resolution of the Board of Directors.
5.05 Voting of Securities Owned by this Corporation. Subject
always to the specific directions of the Board of Directors, (a) any shares or
other securities issued by any other corporation and owned or controlled by this
corporation may be voted at any meeting of security holders of such other
corporation by the President of this corporation if he or she is present, or in
the 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 the
President's absence, of any Vice President, it is desirable for this corporation
to execute a
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proxy or written consent in respect to any shares or other securities issued by
any other corporation and owned by this corporation, such proxy or consent shall
be executed in the name of this corporation by the President or one of the Vice
Presidents of this corporation, without necessity of any authorization by the
Board of Directors, affixation of corporate seal or countersignature or
attestation by another officer. Any person or persons designated in the manner
above stated as the proxy or proxies of this corporation shall have full right,
power and authority to vote the shares or other securities issued by such other
corporation and owned by this corporation the same as such shares or other
securities might be voted by this corporation.
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.01 Certificate 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 cancelled and no new
certificate shall be issued until the former certificate for a like number of
shares shall have been surrendered and cancelled, except as provided in Section
6.06.
6.02 Facsimile Signatures and Seal. The seal of the
corporation, 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. If an officer, who has
signed or whose facsimile signature has been placed upon any
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certificate for shares, shall have ceased to be such officer before such
certificate is issued, the certificate may be issued by the corporation with the
same effect as if that person 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
power 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) if required by the corporation,
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,
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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 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 corresponding
provisions of the corporation's articles of incorporation or bylaws, 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 bylaws
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
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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 or officer, to the extent he or she has been
successful on the merits or otherwise in the defense of a proceeding, for all
reasonable expenses incurred in the proceeding if the director or officer was a
party because he or she is a director or officer of the corporation.
9.02 Other Indemnification.
(a) In cases not included under Section 9.01, the
corporation shall indemnify a director or officer against all
liabilities and expenses incurred by the director or officer
in a proceeding to which the director or officer was a party
because he or she is a director or officer of the corporation,
unless liability was incurred because the director or officer
breached or failed to perform a duty he or she owes to the
corporation and the breach or failure to perform constitutes
any of the following:
(1) A willful failure to deal fairly with
the corporation or its shareholders in connection
with a matter in which the director or officer has a
material conflict of interest.
(2) A violation of criminal law, unless the
director or officer had reasonable cause to believe
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 or
officer derived an improper personal profit.
(4) Willful misconduct.
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(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 or officer is
not required under this Section.
9.03 Written Request. A director or officer 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 or officer under Sections 9.01 or 9.02 if the director or officer has
previously received indemnification or allowance of expenses from any person,
including the corporation, in connection with the same proceeding. However, the
director or officer has no duty to look to any other person for indemnification.
9.05 Determination of Right to Indemnification.
(a) Unless otherwise provided by the Articles of
Incorporation or by written agreement between the
director or officer and the corporation, the director or
officer seeking indemnification under 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.
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(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's or
officer's indemnification under Section 9.02 shall be
submitted to both the corporation and the director or officer
within 60 days of the selection made under (a).
(d) If it is determined that indemnification is
required under Section 9.02, the corporation shall pay
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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 or officer in the determination
process under (a).
9.06 Advance Expenses. Within 10 days after receipt of a
written request by a director or officer who is a party to a proceeding, the
corporation shall pay or reimburse his or her reasonable expenses as incurred if
the director or officer provides the corporation with all of the following:
(1) A written affirmation of his or her good
faith belief that he or she has not breached or
failed to perform his or her duties to the
corporation.
(2) A written undertaking, executed
personally or on his or her behalf, to repay the
allowance to the extent that it is ultimately
determined under Section 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 or officer 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 or
officer may have under any of the following:
(1) The Articles of Incorporation.
(2) A written agreement between the
director or officer and the corporation.
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(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 or officer, or permit a director or officer to retain
any allowance of expenses unless it is determined by or on
behalf of the corporation that the director or officer did not
breach or fail to perform a duty he or she owes to the
corporation which constitutes conduct under Section
9.02(a)(1), (2), (3) or (4). A director or officer 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 9.13 do not affect the
corporation's power to pay or reimburse expenses incurred by a
director or officer in any of the following circumstances.
(1) As a witness in a proceeding to which he
or she is not a party.
(2) As a plaintiff or petitioner in a
proceeding because he or she is or was an employee,
agent, director or officer of the corporation.
9.08 Court-Ordered Indemnification.
(a) Except as provided otherwise by written agreement
between the director or officer and the corporation, a
director or officer who is a party to a proceeding may apply
for indemnification to the court conducting the proceeding or
to another court of competent jurisdiction. Application 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)
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or (6). After receipt of an application, the court shall give
any notice it considers necessary.
(b) The court shall order indemnification if it
determines any of the following:
(1) That the director or officer is entitled
to indemnification under Sections 9.01 or 9.02.
(2) That the director or officer is fairly
and reasonably entitled to indemnification in view of
all the relevant circumstances, regardless of whether
indemnification is required under Section 9.02.
(c) If the court determines under (b) that the
director or officer is entitled to indemnification, the
corporation shall pay the director's or officer's expenses
incurred to obtain the court-ordered indemnification.
9.09 Indemnification of Employees or Agents. The corporation
may indemnify and allow reasonable expenses of an employee or agent who is not a
director or officer to the extent provided by the Articles of Incorporation or
Bylaws, by general or specific action of the board of directors or by contract.
9.10 Insurance. The corporation may purchase and maintain
insurance on behalf of an individual who is an employee, agent, director or
officer of the corporation against liability asserted against or incurred by the
individual in his or her capacity as an employee, agent, director or officer,
regardless of whether the corporation is required or authorized to indemnify or
allow expenses to the individual against the same liability under Sections 9.01,
9.02, 9.06 and 9.09.
9.11 Securities Law Claims.
(a) Pursuant to the public policy of the State of
Wisconsin, the corporation shall provide indemnification and
allowance of expenses and may insure for any liability
incurred in connection with a proceeding involving securities
regulation described
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under (b) to the extent required or permitted under Sections
9.01 to 9.10.
(b) Sections 9.01 to 9.10 apply, to the extent
applicable to any other proceeding, to any proceeding
involving a federal or state statute, rule or regulation
regulating the offer, sale or purchase of securities,
securities brokers or dealers, or investment companies or
investment advisers.
9.12 Liberal Construction. In order for the corporation to
obtain and retain qualified directors and officers, the foregoing provisions
shall be liberally administered in order to afford maximum indemnification of
directors and officers 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.
9.13 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 or Officer" means any of the following:
(1) A natural person who is or was a
director or officer of this corporation.
(2) A natural person who, while a director
or officer of this corporation, is or was serving at
the corporation's request as a director, officer,
partner, trustee, member of any governing
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or decision-making committee, employe or agent of
another corporation or foreign corporation,
partnership, joint venture, trust or other
enterprise.
(3) A natural person who, while a director
or officer of this corporation, is or was serving an
employe 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
or officer.
For purposes of this Article, 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.
(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 employe
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.
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ARTICLE X. SEAL
The Board of Directors may provide a corporate seal which
shall be circular in form and shall have inscribed thereon the name of the
corporation and the state of incorporation and the words "Corporate Seal."
ARTICLE XI. AMENDMENTS
11.01 By Shareholders. These bylaws may be altered, amended or
repealed and new bylaws 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 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; but no bylaw adopted by the shareholders
shall be amended or repealed by the Board of Directors if the bylaw 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 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.
ARTICLE XII. STOCK TRANSFER RESTRICTION
In the event the corporation makes a valid election, pursuant
to ss.1362 of the Internal Revenue Code of 1986, or any successor provision
thereto, to be treated as an S Corporation, no shareholder of the corporation
shall, without the written consent of shareholders holding more than fifty
percent (50%) of
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the outstanding stock of the corporation, transfer any shares of stock to any
person who, by reason of being a shareholder of the corporation, will cause a
termination of the corporation's election to be treated as an S Corporation.