EXHIBIT 3.2
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AMENDED AND RESTATED
AS OF 4/6/01
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BYLAWS
OF
SCHULTZ SAV-O STORES, INC.
(a Wisconsin corporation)
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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, 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 Place of Meetings. Meetings of the shareholders of the corporation
shall be held at such place as may be designated from time to time by resolution
of the Board of Directors of the corporation. If no such place is designated,
then the meeting shall be held at the general office of the corporation in
Sheboygan County, Wisconsin.
2.02 Annual Meeting. The annual meeting of the shareholders shall be held
on the second Wednesday of May of each year or at such other date as may be
fixed 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.
2.03 Special Meetings. Special meetings of the shareholders may be called
by any officer of the corporation, the Board of Directors, or by the holders of
not less than one tenth of all the shares entitled to vote at the meeting.
2.04 Notice of Shareholders' Meetings. 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 ten
nor more than fifty days before the date of the meeting, either personally or by
mail, by or at the direction of the president, the secretary, or the officer or
person calling the meeting, to each shareholder of record entitled to vote at
such meeting. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail addressed to the shareholder at his address
as it appears on the stock record books or similar records of the corporation,
with postage thereon prepaid.
2.05 Meetings Without Notice. Any meeting of the shareholders of the
corporation at which all of the shareholders entitled to vote are present,
either in person or by proxy, shall be a legal meeting of the shareholders
without notice. The shareholders may transact any business at such meeting which
may lawfully be transacted at any meeting of the shareholders regularly called
and notified.
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2.06 Voting of Shares. Each outstanding share, entitled to vote, shall be
entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in person or by proxy appointed in
writing by the shareholder, or by his duly authorized attorney-in-fact. No proxy
shall be valid after eleven months from the date of its execution, unless
otherwise provided in the proxy.
2.07 Quorum. A majority of the shares entitled to vote, represented in
person or by proxy, shall constitute a quorum at the meeting of shareholders. If
a quorum be not present at a meeting, the majority present in person or by proxy
may adjourn from time to time, without notice other than by announcement at the
meeting, until the holders of the amount of shares requisite to constitute a
quorum shall attend. At any such adjourned meeting at which a quorum shall be
present, any business may be transacted which might have been transacted at the
meeting as originally notified.
2.08 Conduct of Meetings. The Chairman of the Board, and in his absence,
the Vice Chairman of the Board, and in his absence, the President, and in his
absence, a Vice President in the order provided under Section 4.09, and in their
absence, any director chosen by the directors present, in their absence, any
shareholder entitled to vote chosen by the shareholders present shall call the
meeting of the shareholders to order and shall act as chairman of the meeting,
and the Secretary of the corporation shall act as secretary of all meetings of
the shareholders, but, in the absence of the Secretary, the presiding officer
may appoint any shareholder entitled to vote to act as secretary of the meeting.
2.09 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 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 fix in advance a date as the record date for any such
determination of shareholders, such date in any case to be not more than seventy
days and, in case of a meeting of shareholders, not less than ten days prior to
the date on which the particular action requiring such determination of
shareholders is to be taken. If no record date is fixed for the determination of
shareholders entitled to notice of or to vote at a meeting of shareholders or
shareholders entitled to receive payment of a dividend, the close of business on
the date on which notice of the meeting is mailed or on the date on which the
resolution of the Board of Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determination of shareholders.
When a determination of shareholders entitled to vote at any meeting has been
made as provided in this section, such determination shall be applied to any
adjournment thereof.
ARTICLE III. BOARD OF DIRECTORS
3.01 General Powers and Number. All corporate powers shall be exercised by
or under the authority of, and the business and affairs of the corporation
managed under the direction of, the Board of Directors. The number of directors
of the corporation shall be determined from time to time by the Board of
Directors and shall be divided into three classes designated as Class I, Class
II and Class III, respectively.
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At the 1989 annual meeting of shareholders, the directors of Class I shall
be elected for a term to expire at the first annual meeting of shareholders
after their election, and until their successors are elected and qualify, the
directors of Class II shall be elected for a term to expire at the second annual
meeting of shareholders after their election, and until their successors are
elected and qualify, and the directors of Class III shall be elected for a term
to expire at the third annual meeting of shareholders after their election, and
until their successors are elected and qualify. At each annual meeting of
shareholders after the 1989 annual meeting of shareholders the successors to the
class of directors whose terms shall expire at the time of such annual meeting
shall be elected to hold office until the third succeeding annual meeting of
shareholders, and until their successors are elected and qualify.
A director may be removed by the shareholders only at a meeting called for
the purpose of removing the director, and the meeting notice shall state that
the purpose, or one of the purposes, of the meeting is removal of the director.
A director may be removed from office with or without cause if the votes cast to
remove the director exceeds the number of votes cast not to remove such
director. A director may resign at any time by delivering written notice which
complies with the Wisconsin Business Corporation Law to the Board of Directors,
to the Chairman of the Board of Directors or to the corporation. A director's
resignation is effective when the notice is delivered unless the notice
specifies a later effective date.
From time to time, the Board of Directors may elect one or more former or
retiring directors as Directors Emeritus of the corporation. Directors Emeritus
shall be invited to attend and participate in all meetings of the Board of
Directors (and shall be provided with all information and documents provided to
directors generally) but shall not have a vote on any matter before the Board of
Directors and shall not be counted in determining the presence of a quorum at
any meeting of the Board of Directors. Each Director Emeritus of the corporation
shall be deemed a "Director" for purposes of Article VIII of these bylaws and
shall be entitled to such compensation as may be determined by the Board of
Directors.
3.02 Qualifications. Directors need not be residents of the State of
Wisconsin or shareholders of the corporation. No other restrictions, limitations
or qualifications may be imposed on individuals for service as a director.
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 communicated to the
directors at or prior to such meeting of shareholders. To the extent
practicable, 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 shall be communicated amongst and generally agreed upon by the
directors at any meeting of the Board of Directors.
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 President
or Secretary may fix
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any place, either within or without the State of Wisconsin, as the place for
holding any special meeting of the Board of Directors, and if no other place is
fixed the place of the meeting shall be the principal business office of the
corporation in the State of Wisconsin.
3.05 Notice; Waiver. Notice of each special meeting of the Board of
Directors shall be given by written notice delivered or communicated in person,
by telegraph, teletype, facsimile or other form of wire or wireless
communication, or by mail or private carrier, to each director at his business
address or at such other address as such director shall have designated in
writing filed with the Secretary, in each case not less than twenty-four hours
prior to the meeting. The notice need not prescribe the purpose of the special
meeting of the Board of Directors or the business to be transacted at such
meeting. If mailed, such notice shall be deemed to be effective when deposited
in the United States mail so addressed, with postage thereon prepaid. If notice
is given by telegram, such notice shall be deemed to be effective when the
telegram is delivered to the telegraph company. If notice is given by private
carrier, such notice shall be deemed to be effective when 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 or 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 the permanent corporate records. A director's attendance at or participation
in a meeting waives any required notice to him or her of the meeting unless the
director at the beginning of the meeting or promptly upon his or her 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.
3.06 Quorum. Except as otherwise provided by the Wisconsin Business
Corporation Law or by the articles of incorporation or these bylaws, a majority
of the number of directors specified in Section 3.01 of these bylaws shall
constitute a quorum for the transaction of business at any meeting of the Board
of Directors. Except as otherwise provided by the Wisconsin Business Corporation
Law or by 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. 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.
3.07 Manner of Acting. The affirmative vote of a majority of the directors
present at a meeting of the Board of Directors or a committee thereof at which a
quorum is present shall be the act of the Board of Directors or such committee,
as the case may be, unless the Wisconsin Business Corporation Law, the articles
of incorporation or these bylaws require the vote of a greater number of
directors.
3.08 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 his
absence, a Vice
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President in the order provided under Section 4.09, and in their absence, any
director chosen by the directors present, shall call meetings of the Board of
Directors to order and shall act as chairman of the meeting. The Secretary of
the corporation shall act as secretary of all meetings of the Board of Directors
but in the absence of the Secretary, the presiding officer may appoint any 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 Vacancies. Except as provided below, any vacancy occurring in the
Board of Directors, including a vacancy resulting from an increase in the number
of directors, may be filled by any of the following: (a) the shareholders; (b)
the Board of Directors; or (c) if the directors remaining in office constitute
fewer than a quorum of the Board of Directors, the directors, by the affirmative
vote of a majority of all directors remaining in office. If the vacant office
was held by a director elected by a voting group of shareholders, only the
holders of shares of that voting group may vote to fill the vacancy if it is
filled by the shareholders, and only the remaining directors elected by that
voting group may vote to fill the vacancy if it is filled by the directors. A
vacancy that will occur at a specific later date, because of a resignation
effective at a later date or otherwise, may be filled before the vacancy occurs,
but the new director may not take office until the vacancy occurs. Any vacancy
resulting from a director's death, resignation, removal, disqualification or
otherwise shall be filled for the unexpired portion of such director's term.
3.10 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 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 and is announced as
present at a meeting of the Board of Directors or any committee thereof created
in accordance with Section 3.12 hereof, when corporate action is taken, assents
to the action taken unless any of the following occurs: (a) the director objects
at the beginning of the meeting or promptly upon his or her 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 or her dissent or abstention to the presiding
officer of the meeting before its adjournment or to the corporation immediately
after adjournment of the meeting. Such right of dissent or abstention shall not
apply to a director who votes in favor of the action taken.
3.12 Committees. The Board of Directors, by resolution adopted by the
affirmative vote of a majority of all of the directors then in office, may
create one or more
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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.
Each committee shall have two or more members who shall, unless otherwise
provided by the Board of Directors, serve at the pleasure of the Board of
Directors. A committee may be authorized to exercise the authority of the Board
of Directors, except that a committee may not do any of the following: (a)
authorize distributions; (b) approve or propose to shareholders action that the
Wisconsin Business Corporation Law requires to be approved by shareholders; (c)
fill vacancies on the Board of Directors or, unless the Board of Directors
provides by resolution that vacancies on a committee shall be filled by the
affirmative vote of the remaining committee members, on any Board committee; (d)
amend the corporation's articles of incorporation; (e) adopt, amend or repeal
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 may employ counsel,
accountants and other consultants to assist it in the exercise of its authority.
3.13 Telephonic Meetings. Except as herein provided and notwithstanding any
place set forth in the notice of the meeting or these bylaws, members of the
Board of Directors (and any committees thereof created pursuant to Section 3.12
hereof) may participate in regular or special meetings by, or through the use
of, any means of communication by which all participants may simultaneously hear
each other, such as by conference telephone. If a meeting is conducted by such
means, then at the commencement of such meeting the presiding officer shall
inform the participating directors that a meeting is taking place at which
official business may be transacted. Any participant in a meeting by such means
shall be deemed present in person at such meeting. If action is to be taken at
any meeting held by such means on any of the following: (a) a plan of merger or
share exchange; (b) a sale, lease, exchange or other disposition of substantial
property or assets of the corporation; (c) a voluntary dissolution or the
revocation of voluntary dissolution proceedings; or (d) a filing for bankruptcy,
then the identity of each director participating in such meeting must be
verified by the disclosure at such meeting by each such director of each such
director's social security number to the secretary of the meeting before a vote
may be taken on any of the foregoing matters. For purposes of the preceding
clause (b), the phrase "sale, lease, exchange or other disposition of
substantial property or assets" shall mean any sale, lease, exchange or other
disposition of property or assets of the corporation having a net book value
equal to 20% or more of the net book value of the total assets of the
corporation on and as of the close of the fiscal year last ended prior to the
date of such meeting and as to which financial statements of the corporation
have been prepared. Notwithstanding the foregoing, no action may be taken at any
meeting held by such means on any particular matter which the presiding officer
determines, in his or her sole discretion, to be inappropriate under the
circumstances for action at a meeting held by such means. Such determination
shall be made and announced in advance of such meeting.
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3.14 Action without Meeting. Any action required or permitted by the
Wisconsin Business Corporation Law to be taken at a meeting of the Board of
Directors or a committee thereof created pursuant to Section 3.12 hereof may be
taken without a meeting if the action is taken by all members of the Board or of
the committee. The action shall be evidenced by one or more written consents
describing the action taken, signed by each director or committee member and
retained by the corporation. Such action shall be effective when the last
director or committee member signs the consent, unless the consent specifies a
different effective date.
ARTICLE IV. OFFICERS
4.01 Number. The principal officers of the corporation shall be a Chairman
of the Board, a Vice Chairman of the Board, a President, the number of Vice
Presidents as authorized from time to time by the Board of Directors, a
Secretary, and a Treasurer, each of whom shall be elected by the Board of
Directors. Such other officers and assistant officers as may be deemed necessary
may be elected or appointed by the Board of Directors. The Board of Directors
may also authorize any duly authorized officer to appoint one or more officers
or assistant officers. Any two or more offices may be held by the same person.
4.02 Election and Term of Office. The officers of the corporation to be
elected by the Board of Directors shall be elected annually by the Board of
Directors at the first meeting of the Board of Directors held after each annual
meeting of the shareholders. If the election of officers shall not be held at
such meeting, such election shall be held as soon thereafter as is practicable.
Each officer shall hold office until his or her successor shall have been duly
elected or until his or her 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 Resignation. 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.
4.05 Vacancies. A vacancy in any principal office because of death,
resignation, removal, disqualification or otherwise, shall be filled by the
Board of Directors for the unexpired portion of the term. If a resignation of an
officer is effective at a later date as contemplated by Section 4.04 hereof, the
Board of Directors may fill the pending vacancy before the effective date if the
Board provides that the successor may not take office until the effective date.
4.06 Chairman of the Board. The Chairman of the Board shall preside when
present at all meetings of directors and shareholders. He shall also perform all
such other
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functions and duties as may be assigned to him by the Board of Directors. He
shall also have authority to sign documents and instruments in the absence of
the President.
4.07 Vice Chairman of the Board. The Vice Chairman of the Board shall, when
present and when the Chairman of the Board is not present, preside at all
meetings of the directors and shareholders. The Vice Chairman shall also perform
all other functions and duties as may be assigned to him by the Board of
Directors or the Chairman of the Board.
4.08 President. The President shall be the principal executive officer of
the corporation and, subject to the direction of the Board of Directors, shall
in general supervise and control all of the business and affairs of the
corporation. In the absence of the Chairman and the Vice Chairman, the President
shall, when present, preside at all meetings of the directors and shareholders.
He shall have authority, subject to such rules as may be prescribed by the Board
of Directors, to appoint such agents and employees of the corporation as he
shall deem necessary, to prescribe their powers, duties and compensation, and to
delegate authority to them. Such agents and employees shall hold office at the
discretion of the President. He shall have authority to sign, execute and
acknowledge, on behalf of the corporation, all deeds, mortgages, bonds, stock
certificates, contracts, leases, reports and all other documents or instruments
necessary or proper to be executed in the course of the corporation's regular
business, or which shall be authorized by resolution of the Board of Directors;
and, except as otherwise provided by law or the Board of Directors, he may
authorize any Vice President or other officer or agent of the corporation to
sign, execute and acknowledge such documents or instruments in his place and
stead. In general, he shall perform all duties incident to the office of
President and such other duties as may be prescribed by the Board of Directors
from time to time.
4.09 The Vice Presidents. In the 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 Executive
Vice President, or in his absence 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 by the Board of Directors. The
execution of any instrument of the corporation by any Vice President shall be
conclusive evidence, as to third parties, of his or her authority to act in the
stead of the President.
4.10 The Secretary. The Secretary shall: (a) keep minutes of the meetings
of the shareholders and of the Board of Directors (and of committees thereof) in
one or more books provided for that purpose (including records of 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
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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 and showing the number and class or
series of shares held by each shareholder; (e) sign with the President, or a
Vice President, certificates for shares of the corporation, the issuance of
which shall have been authorized by resolution of the Board of Directors; (f)
have general charge of the stock transfer books of the corporation; and (g) in
general perform all duties incident to the office of Secretary and have such
other duties and exercise such authority as from time to time may be delegated
or assigned by the President or by the Board of Directors.
4.11 The Treasurer. The Treasurer shall: (a) have charge and custody of and
be responsible for all funds and securities of the corporation; (b) maintain
appropriate accounting records; (c) receive and give receipts for moneys due and
payable to the corporation from any source whatsoever, and deposit all such
moneys in the name of the corporation in such banks, trust companies or other
depositaries as shall be selected in accordance with the provisions of Section
5.04; and (d) in general perform all of the duties incident to the office of
Treasurer and have such other duties and exercise such other authority as from
time to time may be delegated or assigned by the President or by the Board of
Directors. If required by the Board of Directors, the Treasurer shall give a
bond for the faithful discharge of his or her duties in such sum and with such
surety or sureties as the Board of Directors shall determine.
4.12 Assistant Secretaries and Assistant Treasurers. There shall be such
number of Assistant Secretaries and Assistant Treasurers as the Board of
Directors or the President may from time to time authorize. The Assistant
Secretaries may sign with the President or a Vice President certificates for
shares of the corporation the issuance of which shall have been authorized by a
resolution of the Board of Directors. The Assistant Treasurers shall
respectively, if required by the Board of Directors, give bonds for the faithful
discharge of their duties in such sums and with such sureties as the Board of
Directors shall determine. The Assistant Secretaries and Assistant Treasurers,
in general, shall perform such duties and have such authority as shall from time
to time be delegated or assigned to them by the Secretary or the Treasurer,
respectively, or by the President or the Board of Directors.
4.13 Other Assistants and Acting Officers. The Board of Directors and the
President 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 or her stead, or to perform the
duties of such officer whenever for any reason it is impracticable for such
officer to act personally, and such assistant or acting officer or other agent
so appointed by the Board of Directors or an authorized officer shall have the
power to perform all the duties of the office to which he or she is so appointed
to be an 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, the
President or the appointing officer.
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ARTICLE V. CONTRACTS, LOANS, CHECKS
AND DEPOSITS; SPECIAL CORPORATE ACTS
5.01 Contracts. The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute or deliver any
instrument in the name of and on behalf of the corporation, and such
authorization may be general or confined to specific instances. In the absence
of other designation, all deeds, mortgages and instruments of assignment or
pledge made by the corporation shall be executed in the name of the corporation
by the President or one of the Vice Presidents and by the Secretary, an
Assistant Secretary, the Treasurer or an Assistant Treasurer; the Secretary or
an Assistant Secretary, when necessary or required, shall affix the corporate
seal, if any, thereto; and when so executed no other party to such instrument or
any third party shall be required to make any inquiry into the authority of the
signing officer or officers.
5.02 Loans. No indebtedness for borrowed money shall be contracted on
behalf of the corporation and no evidences of such indebtedness shall be issued
in its name unless authorized by or under the authority of a resolution of the
Board of Directors. Such authorization may be general or confined to specific
instances.
5.03 Checks, Drafts, etc. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the corporation, shall be signed by such officer or officers, agent or agents of
the corporation and in such manner as shall from time to time be determined by
or under the authority of a resolution of the Board of Directors.
5.04 Deposits. All funds of the corporation not otherwise employed shall be
deposited from time to time to the credit of the corporation in such banks,
trust companies or other depositaries as may be selected by or under the
authority of a resolution of the Board of Directors.
5.05 Voting of Securities Owned by this Corporation. Subject always to the
specific directions of the Board of Directors, (a) any shares or other
securities issued by any other corporation and owned or controlled by this
corporation may be voted at any meeting of security holders of such other
corporation by the President of this corporation if he be present, or in his
absence by any Vice President of this corporation who may be present, and (b)
whenever, in the judgment of the President, or in his absence, of any Vice
President, it is desirable for this corporation to execute a proxy or written
consent in respect to any shares or other securities issued by any other
corporation and owned by this corporation, such proxy or consent shall be
executed in the name of this corporation by the President or one of the Vice
Presidents of this corporation, without necessity of any authorization by the
Board of Directors, affixation of corporate seal, if any, 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.
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ARTICLE VI. CERTIFICATES FOR SHARES; TRANSFER OF SHARES
6.01 Certificates for Shares. Certificates representing shares of the
corporation shall be in such form, consistent with the Wisconsin Business
Corporation Law, as shall be determined by the Board of Directors. Such
certificates shall be signed by the President or a Vice President and by the
Secretary or an Assistant Secretary. All certificates for shares shall be
consecutively numbered or otherwise identified. The name and address of the
person to whom the shares represented thereby are issued, with the number of
shares and date of issue, shall be entered on the stock transfer books of the
corporation. All certificates surrendered to the corporation for transfer shall
be cancelled and no new certificate shall be issued until the former certificate
for a like number of shares shall have been surrendered and cancelled, except as
provided in Section 6.06.
6.02 Facsimile Signatures and Seal. The seal of the corporation, if any, on
any certificates for shares may be a facsimile. The signature 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. 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.
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 such endorsements are genuine and effective and 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
certificates for shares have 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, (b) files with the corporation a sufficient indemnity bond if
required by the Board of Directors or any principal officer, and (c) satisfies
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such other reasonable requirements as may be prescribed by or under the
authority of the Board of Directors.
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 otherwise for property to
be issued in the future, or make other arrangements to restrict the transfer of
the shares, and may credit distributions in respect of the shares against their
purchase price, until the services are performed, the benefits or property are
received or the promissory note is paid. If the services are not performed, the
benefits or property are not received or the promissory note is not paid, the
corporation may cancel, in whole or in part, the shares escrowed or restricted
and the distributions credited.
6.08 Stock Regulations. The Board of Directors shall have the power and
authority to make all such further rules and regulations not inconsistent with
law as it may deem expedient concerning the issue, transfer and registration of
shares of the corporation.
ARTICLE VII. SEAL
7.01 The Board of Directors may provide for a corporate seal for the
corporation.
ARTICLE VIII. INDEMNIFICATION
8.01 Provision of Indemnification. The corporation shall, to the fullest
extent permitted or required by Sections 180.0850 to 180.0859, inclusive, of the
Wisconsin Business Corporation Law, 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 prior to
such amendment), indemnify its Directors and Officers against any and all
Liabilities, and advance any and all reasonable Expenses, incurred thereby in
any Proceeding to which any such Director or Officer is a Party because he or
she is or was a Director or Officer of the corporation. The corporation shall
also indemnify an employee who is not a Director or Officer, to the extent that
the employee 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 is or was an employee of the corporation. The rights to
indemnification granted hereunder shall not be deemed exclusive of any other
rights to indemnification against Liabilities or the advancement of Expenses
which a Director, Officer or employee may be entitled under any written
agreement, Board resolution, vote of shareholders, the Wisconsin Business
Corporation Law or otherwise. The corporation may, but shall not be required to,
supplement the foregoing rights to indemnification against
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Liabilities and advancement of Expenses under this Section 8.01 by the purchase
of insurance on behalf of any one or more of such Directors, Officers or
employees, whether or not the corporation would be obligated to indemnify or
advance Expenses to such Director, Officer or employee under this Section 8.01.
All capitalized terms used in this Article VIII and not otherwise defined herein
shall have the meaning set forth in Section 180.0850 of the Wisconsin Business
Corporation Law.
ARTICLE IX. AMENDMENTS
9.01 By Shareholders. These bylaws may be amended or repealed and new
bylaws may be adopted by the shareholders at any annual or special meeting of
the shareholders at which a quorum is in attendance.
9.02 By Directors. Except as otherwise provided by the Wisconsin Business
Corporation Law, the articles of incorporation or these bylaws, these bylaws may
also be amended or repealed and new bylaws may be adopted by the Board of
Directors provided, however, that the shareholders in adopting, amending or
repealing a particular bylaw may provide therein that the Board of Directors may
not amend, repeal or readopt that bylaw and provided, further, that the Board of
Directors shall have no power to amend or repeal any provisions of Article II.
9.03 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 which 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 X. SHAREHOLDER PROPOSALS
10.01 Annual Meetings.
(a) 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 of shareholders by any shareholder
of the corporation who (i) is a shareholder of record at the time of giving of
notice provided for in this Section 10.01, (ii) is entitled to vote at the
meeting, and (iii) complies with the notice procedures set forth in this Section
10.01.
(b) For nominations or other business to be properly brought before an
annual meeting of shareholders by a shareholder, such 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 later than the
earlier of (i) the date 45 days prior to the first anniversary (the "Anniversary
Date") of the date set forth, in the corporation's proxy statement for the last
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annual meeting of shareholders held by the corporation, as the date on which the
corporation first mailed definitive proxy materials for such annual meeting of
shareholders and (ii) the later of (x) the date 70 days prior to the annual
meeting of shareholders before which the shareholder providing notice desires to
bring the business set forth in the notice and (y) the date 10 days following
the day on which public announcement of the date of such meeting is first made.
Such shareholder's notice shall be signed by the shareholder of record who
intends to make the nomination or introduce the other business (or his duly
authorized proxy or other representative), shall bear the date of signature of
such shareholder (or proxy or other representative) and shall set forth: (A) the
name and address, as they appear on the corporation's books, of such shareholder
and the beneficial owner or owners, if any, on whose behalf the nomination or
other proposal is made; (B) the class and number of shares of the corporation
that 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 residential 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 Securities Exchange Act of 1934 (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.
(c) Notwithstanding the foregoing provisions of this Section 10.01 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 10.01
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.
10.02 Special Meetings.
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(a) Only such business shall be conducted at a special meeting of the
shareholders of the corporation as is described in the notice of such meeting
sent to shareholders in accordance with Section 2.04 of these bylaws.
(b) Nominations of persons for election to the Board of Directors at a
special meeting of shareholders at which directors are to be elected may be made
a shareholder only if such shareholder (i) is a shareholder of record at the
time of giving of notice of such meeting, (ii) is entitled to vote at the
meeting, and (iii) complies with the notice procedures set forth in this Section
10.02.
(c) 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 date 60 days prior to
such special meeting and (y) the date 10 days 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: (i) 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; (ii) the class and number of
shares of the corporation which are beneficially owned by such shareholder or
beneficial owner or owners; (iii) 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; (iv) the name and residence address of the
person or persons to be nominated; (v) 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; (vi) 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 (vii) 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.
10.03 General.
(a) Only persons who are nominated by or at the direction of the Board
of Directors or nominated by shareholders of the corporation in compliance with
the procedures set forth in this Article X shall be eligible to serve as
directors. Only such business shall be conducted at an annual meeting or special
meeting of shareholders as shall have been brought before such meeting by or at
the direction of the Board of Directors or by a shareholder in compliance with
the procedures set forth in this Article X. The chairman of any
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meeting of shareholders 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 Article X and, if any proposed
nomination or business is not in compliance with this Article X, to declare that
such defective proposal shall be disregarded.
(b) For purposes of this Article X, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(c) In addition to complying with the foregoing provisions of this
Article X, a shareholder shall comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Article X. Nothing in this Article X 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.
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