07/31/01
BY-LAWS
OF
BANTA CORPORATION
(a Wisconsin 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. 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 of the
corporation (the "Annual Meeting") shall be held on the second Tuesday in the
month of April of each year, at the hour of two (2) o'clock p.m. (local time),
or at such other time and date as may be fixed by or under the authority of the
Board of Directors, for the purpose of electing directors and for the
transaction of such other business as may properly come before the Annual
Meeting in accordance with Section 2.13 of these by-laws. If the day fixed for
the Annual Meeting shall be a legal holiday in the State of Wisconsin, such
meeting shall be held on the next succeeding business day. If the election of
directors shall not be held on the day designated herein, or fixed as herein
provided, for any Annual Meeting, or at any adjournment thereof, the Board of
Directors shall cause the election to be held at a special meeting of the
shareholders (a "Special Meeting") as soon thereafter as conveniently may be. 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. Special Meetings.
(a) A Special Meeting may be called only by (i) the Chairman of the
Board, (ii) the Chief Executive Officer or (iii) the Board of Directors and
shall be called by the Chairman of the Board or the Chief Executive Officer
upon the demand, in accordance with this Section 2.02, of the holders of
record of shares representing at least 10% of all the votes entitled to be
cast on any issues proposed to be considered at the Special Meeting.
1
(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 10 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 10
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 10 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 day 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 2.13 of
these by-laws.
(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 2.02, 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 or series 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 70 days after the Demand Record Date.
(d) The corporation shall not be required to call a Special Meeting
upon shareholder demand unless, in addition to the documents required by
paragraph (c) of this Section 2.02, the Secretary receives a written
agreement signed by each Soliciting Shareholder (as defined herein),
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 director at such meeting is elected, then the
2
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 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 for a meeting delivered to the corporation pursuant to
paragraph (c) of this Section 2.02 is 10 or fewer, each
shareholder signing any such demand;
(B) if the number of shareholders signing the demand or
demands for a meeting delivered to the corporation pursuant to
paragraph (c) of this Section 2.02 is more than 10, 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 2.02, had engaged or intended to engage in any
Solicitation of Proxies for use at such Special Meeting (other
than a Solicitation of Proxies on behalf of the corporation); or
(C) any Affiliate of a Soliciting Shareholder, if a
majority of the directors then in office determine, reasonably
and in good faith, that such Affiliate should be required to sign
the written notice described in paragraph (c) of this Section
2.02 and/or the written agreement described in this paragraph (d)
in order to prevent the purposes of this Section 2.02 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
Chairman of the Board, the Chief Executive Officer or the Board of
Directors shall have called such meeting. In the case of any Special
Meeting called by the Chairman of the Board or the Chief Executive Officer
upon the demand of shareholders (a "Demand Special Meeting"), such meeting
shall be held at such hour and day as may
3
be designated by the Board of Directors; provided, however, that the date
of any Demand Special Meeting shall be not more than 70 days after the
Meeting Record Date (as defined in Section 2.05 of these by-laws); 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 10 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 any 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 Chairman of the Board, the Chief
Executive Officer or the Board of Directors may consider such factors as he
or it deems relevant within the good faith exercise of his or its 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 nationally or regionally 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) 5 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 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 5 Business Day period, or to take any other action (including, without
limitation, the commencement, prosecution or defense of any litigation with
respect thereto).
(g) For purposes of these by-laws, "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.
2.03. Place of Meeting. The Board of Directors, the Chairman of the Board
or the Chief Executive Officer 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 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 or the Chief Executive Officer.
2.04. Notice of Meeting. Written notice stating the place, day and hour of
any Annual Meeting or Special Meeting shall be delivered not less than 10
(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 Secretary, to each shareholder of record
entitled to vote at such meeting and to other shareholders as may be required by
the Wisconsin
4
Business Corporation Law. In the event of any Demand Special Meeting, such
notice of meeting shall be sent not more than 30 days after the Delivery Date.
If mailed, notice pursuant to this Section 2.04 shall be deemed to be effective
when deposited in the United States mail, addressed to each shareholder at his
or her 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, 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 2.02 of these by-laws and
(ii) shall contain all of the information required in the notice received by the
corporation in accordance with Section 2.13(b) of these by-laws. 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.
2.05. 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 determination of
shareholders entitled to notice of, or to vote at, such meeting (the "Meeting
Record Date"). In the case of any Demand Special Meeting, (i) the Meeting Record
Date shall be not later than the 30th day after the Delivery Date and (ii) if
the Board of Directors fails to fix the Meeting Record Date within 30 days after
the Delivery Date, then the close of business on such 30th day shall be the
Meeting Record Date. The shareholders of record on the Meeting Record Date shall
be the shareholders entitled to notice of and to vote at the meeting. Except as
provided by the Wisconsin Business Corporation Law for a court-ordered
adjournment, a determination of shareholders entitled to notice of and to vote
at any Annual Meeting or Special Meeting is effective for any adjournment of
such meeting unless the Board of Directors fixes a new Meeting Record Date,
which it shall do if the meeting is adjourned to a date more than 120 days after
the date fixed for the original meeting. The Board of Directors may also fix in
advance a date as the record date for the purpose of determining shareholders
entitled to take any other action or determining shareholders for any other
purpose. Such record date shall be not more than 70 days prior to the date on
which the particular action, requiring such determination of shareholders, is to
be taken. The record date for determining shareholders entitled to a
distribution (other than a distribution involving a purchase, redemption or
other acquisition of the corporation's shares) or a share dividend is the date
on which the Board of Directors authorizes the distribution or share dividend,
as the case may be, unless the Board of Directors fixes a different record date.
2.06. Shareholder Lists. 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 or her agent may,
on
5
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 or her expense, during the period that it is available for inspection
pursuant to this Section 2.06. The corporation shall make the shareholders' list
available at the meeting and any shareholder or his or her 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.
2.07. 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 2.07.
Except as otherwise provided in the Articles of Incorporation, any by-law
adopted under authority granted in the Articles of Incorporation, 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, any by-law adopted under authority granted in the
Articles of Incorporation, or the Wisconsin Business Corporation Law
requires a greater number of affirmative votes. Unless otherwise provided
in the Articles of Incorporation, directors 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. For purposes of this Section 2.07(a), "plurality" means that the
individuals with the largest number of votes are elected as directors up to
the maximum number of directors to be chosen at the Annual Meeting or
Special Meeting.
(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 pursuant to 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.
6
2.08. Conduct of Meetings. The Chairman of the Board, and in his absence
the Chief Executive Officer, shall call any Annual Meeting or Special Meeting to
order and shall act as chairman of such meeting. In the absence of the Chairman
of the Board and the Chief Executive Officer, such duties shall be performed by
the President. In the absence of the Chairman of the Board, the Chief Executive
Officer and the President, such duties shall be performed by a Vice-President in
the order provided under Section 4.07, or in their absence, by any person chosen
by the shareholders present. 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.
2.09. Proxies. At any Annual Meeting or Special Meeting, 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 or her 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. The Board of Directors shall have the power
and authority to make rules establishing presumptions as to the validity and
sufficiency of proxies.
2.10. Voting of Shares. Each outstanding share shall be entitled to one
vote upon each matter submitted to a vote at any Annual Meeting or Special
Meeting except to the extent that the voting rights of the shares of any class
or classes are enlarged, limited or denied by the Articles of Incorporation or
the Wisconsin Business Corporation Law.
2.11. 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, if acting in
good faith, 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.
7
(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 shareholders 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.
2.12. Waiver of Notice by Shareholders. A shareholder may waive any notice
required by the Wisconsin Business Corporation Law, the Articles of
Incorporation or these by-laws before or after the date and time stated in the
notice. The waiver shall be in writing and signed by the shareholder entitled to
the notice, contain the same information that would have been required in the
notice under applicable provisions of the Wisconsin Business Corporation Law
(except that the time and place of meeting need not be stated) and be delivered
to the corporation for inclusion in the corporate records. A shareholder's
attendance at any Annual Meeting or Special Meeting, in person or by proxy,
waives objection to all of the following: (a) lack of notice or defective notice
of the meeting, unless the shareholder at the beginning of the meeting or
promptly upon arrival objects to holding the meeting or transacting business at
the meeting; and (b) consideration of a particular matter at the meeting that is
not within the purpose described in the meeting notice, unless the shareholder
objects to considering the matter when it is presented.
2.13. 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 by-law and who is entitled to vote at the
meeting and complies with the notice procedures set forth in this
Section 2.13.
(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 2.13, 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 executive
offices of the corporation not less than 60 days nor more than 90
days prior to the second Tuesday in the month of
8
April; provided, however, that in the event that the date of the
Annual Meeting is advanced by more than 30 days or delayed by more
than 60 days from the second Tuesday in the month of April, notice by
the shareholder to be timely must be so received not earlier than the
90th day prior to the date of such Annual Meeting and not later than
the close of business on the later of (x) the 60th day prior to such
Annual Meeting and (y) the 10th day 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 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 by-laws, 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 2.13 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 70 days
prior to the second Tuesday in the month of April, a shareholder's
notice required by this Section 2.13 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 executive offices of the corporation not later than the
close of business on the
9
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 2.04 of these by-laws. Nominations of
persons for election to the Board of Directors may be made at a Special
Meeting at which directors are to be elected pursuant to such notice of
meeting (i) by or at the direction of the Board of Directors or (ii) by any
shareholder of the corporation who (A) is a shareholder of record at the
time of giving of such notice of meeting, (B) is entitled to vote at the
meeting and (C) complies with the notice procedures set forth in this
Section 2.13. 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
executive offices of the corporation not earlier than 90 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 2.13 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
2.13. 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 2.13 and, if any proposed
10
nomination or business is not in compliance with this Section 2.13,
to declare that such defective proposal shall be disregarded.
(ii) For purposes of this Section 2.13, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news service or
in a document publicly filed by the corporation with the Securities
and Exchange Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act.
(iii) Notwithstanding the foregoing provisions of this Section
2.13, 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
2.13. Nothing in this Section 2.13 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.
11
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 shall
be managed under the direction of, its Board of Directors. The number of
directors of the corporation shall be ten (10).
3.02. Tenure and Qualifications. Each director shall hold office until the
next annual meeting of shareholders and until his successor shall have been
elected and qualified, or until there is a decrease in the number of directors
which takes effect after the expiration of his term, or until his prior death,
resignation or removal. 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 but only for cause (as
defined herein) if the number of votes cast to remove the director exceeds the
number of votes cast not to remove him; provided, however, that, if the Board of
Directors, by resolution, shall have recommended removal of a director, then the
shareholders may remove such director without cause by the vote referred to
above. As used herein, "cause" shall exist only if the director whose removal is
proposed has been convicted of a felony by a court of competent jurisdiction,
where such conviction is no longer subject to direct appeal, or has been
adjudged liable for actions or omissions in the performance of his duty to the
corporation in a matter which has had a materially adverse effect on the
business of the corporation, where such adjudication is no longer subject to
appeal. A director may resign at any time by delivering written notice which
complies with the Wisconsin Business Corporation Law to 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 but must be
shareholders of the corporation. Except as otherwise provided by the Board of
Directors, a director shall retire no later than the end of the term in which
occurs the earlier of the director's attainment of age seventy (70) or the
completion of fifteen (15) years of service as a non-employee director;
provided, however, that the fifteen (15) year limitation shall be inapplicable
to any director who had completed at least fifteen (15) years as a non-employee
director as of January 1, 1995. As used herein, a "non-employee director" shall
mean a director who is not an employee of the corporation or any of its
subsidiaries.
3.03. Regular Meetings. A regular meeting of the Board of Directors shall
be held without other notice than this by-law immediately after the Annual
Meeting, and each adjourned session thereof. 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 at such Annual Meeting. The Board of
Directors may provide, by resolution, the time and place, either within or
without the State of Wisconsin, for the holding of additional regular meetings
without other notice than such resolution.
3.04. Special Meetings. Special meetings of the Board of Directors may be
called by or at the request of the Chairman of the Board, the Chief Executive
Officer or any three directors. The Chairman of the Board or the Chief Executive
Officer may fix any place, either within or without the State of Wisconsin, as
the place for holding any special meeting of the Board of Directors, and if no
other place is fixed the place of meeting shall be the principal business office
of the corporation in the State of Wisconsin.
12
3.05. Notice; Waiver. Notice of each meeting of the Board of Directors
(unless otherwise provided in or pursuant to Section 3.03) shall be given by
written notice delivered or communicated in person, by telegram, 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 48 hours prior to the time of the 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 be 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 the notice 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 or these by-laws or any provision of the Wisconsin
Business Corporation Law, a waiver thereof in writing, signed at any time,
whether before or after the time of meeting, by the director entitled to such
notice, shall be deemed equivalent to the giving of such notice. The 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 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 or by the Articles of Incorporation or these by-laws, a majority
of the number of directors set forth in Section 3.01 shall constitute a quorum
for the transaction of business at any meeting of the Board of Directors, but a
majority of the directors present (though less than such quorum) may adjourn the
meeting from time to time without further notice.
3.07. Manner of Acting. The act of the majority of the directors present at
a meeting at which a quorum is present shall be the act of the Board of
Directors, unless the act of a greater number is required by the Wisconsin
Business Corporation Law or by the Articles of Incorporation or these by-laws.
3.08. Conduct of Meetings. The Chairman of the Board, and in his absence,
the Chief Executive Officer, and in his absence, the President or a
Vice-President in the order provided under Section 4.07, and in their absence,
any director chosen by the directors present, shall call meetings of the Board
of Directors to order and shall act as chairman of the meeting. The Secretary of
the corporation shall act as secretary of all meetings of the Board of
Directors, but in the absence of the Secretary, the presiding officer may
appoint any Assistant Secretary or any director or other person present to act
as secretary of the meeting. 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
13
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.
3.10. Compensation. The Board of Directors, by affirmative vote of a
majority of the directors then in office, and irrespective of any personal
interest of any of its members, may establish reasonable compensation of all
directors for services to the corporation as directors, officers or otherwise,
or may delegate such authority to an appropriate committee. The Board of
Directors also shall have authority to provide for or to delegate authority to
an appropriate committee to provide for reasonable pensions, disability or death
benefits, and other benefits or payments, to directors, officers and employees
to the corporation.
3.11. Presumption of Assent. A director of the corporation who is present
at a meeting of the Board of Directors or a committee thereof of which he 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
dissents or abstains from an action taken and minutes of the meeting are
prepared that show the director's dissent or abstention from the action taken;
(c) the director delivers written notice that complies with the Wisconsin
Business Corporation Law of his dissent or abstention to the presiding officer
of the meeting before its adjournment or to the corporation immediately after
adjournment of the meeting; or (d) the director dissents or abstains from an
action taken, minutes of the meeting are prepared that fail to show the
director's dissent or abstention from the action taken, and the director
delivers to the corporation a written notice of that failure that complies with
the Wisconsin Business Corporation Law promptly after receiving the minutes.
Such right to dissent or abstain shall not apply to a director who voted in
favor of such action.
3.12. Committees. The Board of Directors by resolution adopted by the
affirmative vote of a majority of the number of directors set forth in Section
3.01 may create one or more 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 by-laws; (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
14
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 by-laws, members of
the Board of Directors (and any committee thereof) 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. 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 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.
3.14. Unanimous Consent without Meeting. Any action required or permitted
by the Articles of Incorporation or these by-laws or any provision of the
Wisconsin Business Corporation Law to be taken by the Board of Directors (or a
committee thereof) 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 or of the committee, as the case may be, then in office. 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 Chief Executive Officer, a President, one or more
Vice-Presidents, not to exceed six (6) at any given time, 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 appointed 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 the Annual
Meeting. If the election of officers shall not be held at such meeting, such
election shall be held as soon thereafter as conveniently may be. Each officer
shall hold office until such officer's successor shall have been duly elected or
until his prior death, resignation or removal.
4.03. Removal and Resignation. The Board of Directors may remove any
officer and, unless restricted by the Board of Directors or these by-laws, an
officer may remove any officer or assistant officer appointed by that officer,
at any time, with or without cause and notwithstanding
15
the contract rights, if any, of the officer removed. Election or appointment
shall not of itself create contract rights. 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.
4.04. Vacancies. A vacancy in any principal office because of death,
resignation, removal, disqualification or otherwise, shall be filled by the
Board of Directors for the unexpired portion of the term. If a resignation of an
officer is effective at a later date as contemplated by Section 4.03 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.
4.05. Chairman of the Board. The Chairman of the Board shall, when present,
preside at all Annual Meetings and Special Meetings and at all meetings of the
Board of Directors. The Chairman of the Board shall perform such other duties
and functions as shall be assigned to him from time to time by the Board of
Directors or in these by-laws. Except where by law the signature of the Chief
Executive Officer or the President of the corporation is required, the Chairman
of the Board shall possess the same power and authority as the Chief Executive
Officer or the President 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 and shall have such additional
power to sign, execute and acknowledge, on behalf of the corporation, as may be
authorized by resolution of the Board of Directors.
4.06. Chief Executive Officer. Subject to the control of the Board of
Directors, the Chief Executive Officer shall in general supervise and control
all of the business and affairs of the corporation. He 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, securities, contracts, leases,
reports, and all other documents or other 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 elected
President, 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 Chief Executive
Officer of the corporation and such other duties as may be prescribed by the
Board of Directors from time to time.
4.07. President. In the absence of the Chief Executive Officer or in the
event of his death, inability or refusal to act, or in the event for any reason
it shall be impracticable for the Chief Executive Officer to act personally, the
President shall perform the duties of the Chief Executive Officer, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the Chief Executive Officer. 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
16
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 the President shall perform all duties incident to the office
of President and such other duties as may be prescribed by the Board of
Directors or the Chief Executive Officer from time to time.
4.08. The Vice-Presidents. In the absence of the President or in the event
of his death, inability or refusal to act, or in the event for any reason it
shall be impracticable for the President to act personally, the Vice-President
(or in the event there be more than one Vice-President, the Vice-Presidents in
the order designated by the Board of Directors, or in the absence of any
designation, then in the order of their election) shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the President. Any Vice-President may sign, with
the Secretary or Assistant Secretary, certificates for shares of the corporation
and shall perform such other duties and have such authority as from time to time
may be delegated or assigned to him by the President, Chief Executive Officer 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 all
Annual Meetings and Special Meetings and of all meetings of the Board of
Directors in one or more books provided for that purpose (including records of
actions taken without a meeting); (b) see that all notices are duly given in
accordance with the provisions of these by-laws 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 and showing the
number and class or series of shares held by each shareholder; (e) sign with the
Chairman of the Board, the Chief Executive Officer, the President, or a
Vice-President, certificates for shares of the corporation, the issuance of
which shall have been authorized by resolution of the Board of Directors; (f)
have general charge of the stock transfer books of the corporation; and (g) in
general perform all duties incident to the office of Secretary and have such
other duties and exercise such authority as from time to time may be delegated
or assigned to him by the President, the Chief Executive Officer or by the Board
of Directors.
4.10. The Treasurer. The Treasurer shall: (a) have charge and custody of
and be responsible for all funds and securities of the corporation; (b) 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 to him by the President, the Chief
Executive Officer or by the Board of Directors. If required by the Board of
17
Directors, the Treasurer shall give a bond for the faithful discharge of his
duties in such sum and with such surety or sureties as the Board of Directors
shall determine.
4.11. Assistant Secretaries and Assistant Treasurers. There shall be such
number of Assistant Secretaries and Assistant Treasurers as the Board of
Directors may from time to time authorize. The Assistant Secretaries may sign
with the Chairman of the Board, the Chief Executive Officer, 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, the Chief
Executive Officer or the Board of Directors.
4.12. 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 the appointing 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.
4.13. Salaries. The salaries of the principal officers shall be fixed from
time to time by the Board of Directors or by a duly authorized committee
thereof, and no officer shall be prevented from receiving such salary by reason
of the fact that he 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 Chairman of the Board, the Chief Executive Officer, 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 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.
18
5.03. Checks, Drafts, etc. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the corporation, shall be signed by such officer or officers, agent or agents of
the corporation and in such manner as shall from time to time be determined by
or under the authority of a resolution of the Board of Directors.
5.04. Deposits. All funds of the corporation not otherwise employed shall
be deposited from time to time to the credit of the corporation in such banks,
trust companies or other depositories as may be selected by or under the
authority of a resolution of the Board of Directors.
5.05 Voting of Securities Owned by this Corporation. Subject always to the
specific directions of the Board of Directors, (a) any shares or other
securities issued by any other corporation and owned or controlled by this
corporation may be voted at any meeting of security holders of such other
corporation by the Chairman of the Board of this corporation if he be present,
or in his absence by the Chief Executive Officer if he be present, or in his
absence 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 Chairman of the Board, or in his absence of the Chief
Executive Officer, or in his absence 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 Chairman of the Board, the Chief
Executive Officer, the President or one of the Vice-Presidents of this
corporation, without necessity of any authorization by the Board of Directors,
affixation of corporate seal or countersignature or attestation by another
officer. Any person or persons designated in the manner above stated as the
proxy or proxies of this corporation shall have full right, power and authority
to vote the shares or other securities issued by such other corporation and
owned by this corporation the same as such shares or other securities might be
voted by this corporation.
5.06. No Nominee Procedures. The corporation has not established, and
nothing in these by-laws 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 Chairman of the Board, the Chief Executive
Officer, 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.
19
6.02. Facsimile Signatures and Seal. The seal of the corporation on any
certificates for shares may be a facsimile. The signatures of the Chairman of
the Board, the Chief Executive Officer, the President or any Vice-President and
the Secretary or Assistant Secretary upon a certificate may be facsimiles if the
certificate is countersigned by a transfer agent, or registered by a registrar,
other than the corporation itself or an employee of the corporation.
6.03. Signature by Former Officers. In case any officer, who has signed or
whose facsimile signature has been placed upon any certificate for shares, shall
have ceased to be such officer before such certificate is issued, it may be
issued by the corporation with the same effect as if he 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 or with the certificate the necessary endorsements, and (b) the
corporation had no duty to inquire into adverse claims or has discharged any
such duty. The corporation may require reasonable assurance that said
endorsements are genuine and effective and in compliance with such other
regulations as may be prescribed under the authority of the Board of Directors.
6.05. Restrictions on Transfer. The face or reverse side of each
certificate representing shares shall bear a conspicuous notation of any
restriction imposed by the corporation upon the transfer of such shares.
6.06. Lost, Destroyed or Stolen Certificates. Where the owner claims that
his certificate for shares has been lost, destroyed or wrongfully taken, a new
certificate shall be issued in place thereof if the owner (a) so requests before
the corporation has notice that such shares have been acquired by a bona fide
purchaser, and (b) files with the corporation a sufficient indemnity bond, and
(c) satisfies such other reasonable requirements as the Board of Directors may
prescribe.
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. In the absence of a resolution adopted by the Board of
Directors expressly determining that the consideration received or to be
received is adequate, Board approval of the issuance of the shares shall be
deemed to constitute such a determination. 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,
20
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 Regulation. The Board of Directors shall have the power and
authority to make all such further rules and regulations not inconsistent with
the statutes of the State of Wisconsin as it may deem expedient concerning the
issue, transfer and registration of certificates representing shares of the
corporation.
ARTICLE VII. SEAL
7.01. The Board of Directors shall provide a corporate seal which shall be
circular in form and shall have inscribed thereon the name of the corporation
and the state of incorporation and the words, "Corporate Seal".
ARTICLE VIII. INDEMNIFICATION
8.01. Certain Definitions. All capitalized terms used in this Article VIII
and not otherwise hereinafter defined in this Section 8.01 shall have the
meaning set forth in Section 180.0850 of the Statute. The following capitalized
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.
21
(f) "Director or Officer" shall have the meaning set forth in the
Statute; provided, that, for purposes of 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, for purposes of this Article VIII, the term "Proceeding"
shall also include all Proceedings (i) brought under (in whole or in part)
the Securities Act of 1933, as amended, the Exchange Act, their respective
state counterparts, and/or any rule or regulation promulgated under any of
the foregoing; (ii) brought before an Authority or otherwise to enforce
rights hereunder; (iii) any appeal from a Proceeding; and (iv) any
Proceeding in which the Director or Officer is a plaintiff or petitioner
because he or she is a Director or Officer; provided, however, that such
Proceeding is 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, Chapter 180 of the
Wisconsin Statutes, 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 60-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 or (ii) a Disinterested Quorum cannot be
obtained.
22
(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
60-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 determined that
the Director or Officer did not engage in misconduct constituting a Breach
of Duty and, in the case of subsection (i) above (but not subsection (ii)),
indemnification by the Corporation of the requested amount of Liabilities
shall be paid to the Director or Officer immediately.
8.04. Determination of Indemnification.
(a) If the Board authorizes an Authority to determine a Director's or
Officer's right to indemnification pursuant to Section 8.03, then the
Director or Officer requesting indemnification shall have the absolute
discretionary authority to select one of the following as such Authority:
(i) An independent legal counsel; provided, that such counsel
shall be mutually selected by such Director or Officer and by a
majority vote of a Disinterested Quorum or, if a Disinterested Quorum
cannot be obtained, then by a majority vote of the Board;
(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; or
(iii) A court pursuant to and in accordance with Section 180.0854
of the Statute.
(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.
23
(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 as to some claims, issues or
matters, but not as to other claims, issues or matters, involved in the
subject Proceeding, the Corporation shall be required to pay (as set forth
above) only the amount of such requested Liabilities as the Authority shall
deem appropriate in light of all of the circumstances of such Proceeding.
(e) The determination by the Authority that indemnification is
required hereunder shall be binding upon the Corporation regardless of any
prior determination that the Director or Officer engaged in a Breach of
Duty.
(f) All Expenses incurred in the determination process under this
Section 8.04 by either the Corporation or the Director or Officer,
including, without limitation, all Expenses of the selected Authority,
shall be paid by the Corporation.
8.05. Mandatory Allowance of Expenses.
(a) The Corporation shall pay or reimburse, 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 this 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 Corporation shall 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
24
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 that he or she has been successful on the merits
or otherwise in defense of a Proceeding, for all reasonable Expenses
incurred in the Proceeding if the employee was a Party because he or she
was an employee of the Corporation.
(c) The Board may, in its sole and absolute discretion as it deems
appropriate, pursuant to a majority vote thereof, indemnify (to the extent
not otherwise provided in Section 8.06(b) hereof) against Liabilities
incurred by, and/or provide for the allowance of reasonable Expenses of, an
employee or authorized agent of the Corporation acting within the scope of
his or her duties as such and who is not otherwise a Director or Officer.
8.07. Insurance. The Corporation may purchase and maintain insurance on
behalf of a Director or Officer or any individual who is or was an employee or
authorized agent of the Corporation against any Liability asserted against or
incurred by such individual in his or her capacity as such or arising from his
or her status as such, regardless of whether the Corporation is required or
permitted to indemnify against any such Liability under this Article VIII.
8.08. Notice to the Corporation. A Director, Officer or employee shall
promptly notify the Corporation in writing when he or she has actual knowledge
of a Proceeding which may result in a claim of indemnification against
Liabilities or allowance of Expenses hereunder, but the failure to do so shall
not relieve the Corporation of any liability to the Director, Officer or
employee hereunder unless the Corporation shall have been irreparably prejudiced
by such failure (as determined, in the case of Directors or Officers only, by an
Authority selected pursuant to Section 8.04(a)).
8.09. 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.
8.10. Nonexclusivity 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
advancement 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 advance
Expenses to a Director, Officer or employee under the Statute.
8.11. 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
25
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. AMENDMENTS
9.01. By Shareholders. These by-laws may be altered, amended or repealed
and new by-laws may be adopted by the shareholders at any Annual Meeting or
Special Meeting at which a quorum is in attendance.
9.02. By Directors. These by-laws may also be altered, amended or repealed
and new by-laws may be adopted by the Board of Directors by affirmative vote of
a majority of the number of directors present at any meeting at which a quorum
is in attendance; provided, however, that the shareholders in adopting, amending
or repealing a particular by-law may provide therein that the Board of Directors
may not amend, repeal or readopt that by-law.
9.03. Implied Amendments. Any action taken or authorized by the
shareholders or by the Board of Directors, which would be inconsistent with the
by-laws then in effect but is taken or authorized by affirmative vote of not
less than the number of shares or the number of directors required to amend the
by-laws so that the by-laws would be consistent with such action, shall be given
the same effect as though the by-laws had been temporarily amended or suspended
so far, but only so far, as is necessary to permit the specific action so taken
or authorized.
ARTICLE X. INTERPRETATION
10.01. Interpretation. Unless the context requires otherwise, all words
used in these by-laws in the singular number extend to and include the plural,
all words in the plural number extend to and include the singular, and all words
in any gender extend to and include all genders.
26