EXHIBIT 3.2
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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
Business Corporation Law, may be called only by (i) the Board of Directors, (ii)
the Chairman of the Board (if a Chairman is elected) 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
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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.
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(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
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(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).
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(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,
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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, if one is
elected, shall preside at all Annual Meetings and Special Meetings, if he
desires to do so, and at all meetings of the Board of Directors. 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
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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 be the Chief Executive Officer of
the corporation. Subject to the control of the Board of Directors, the President
shall, in general, supervise and control the business and affairs of the
corporation. The President 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. He shall have
authority to sign, execute and acknowledge, on behalf of the corporation, all
deeds, mortgages, contracts, leases, reports and all other documents or
instruments necessary or proper to be executed in the course of the
corporation's regular business, or which shall be authorized by resolution of
the Board of Directors; and, except as otherwise provided by law or the Board of
Directors, he may authorize any Executive Vice President or any Vice President
or other officer or agent of the corporation to sign, execute and acknowledge
such documents or instruments in his place and stead. In general he shall
perform all duties incident to the office of President and Chief Executive
Officer and such other duties as may be assigned or delegated by the Board of
Directors from time to time.
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
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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
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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
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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.
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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
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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
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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.
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(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.
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(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.
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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.
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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.
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