Amended August 6, 2001
Effective Immediately
Unless Otherwise Noted
BY-LAWS
OF
OSHKOSH TRUCK CORPORATION
(a Wisconsin Corporation)
INTRODUCTION
VARIABLE REFERENCES
0.01. Date of annual shareholders' meeting (See Section 2.01): The
regular annual meeting of the shareholders of this corporation shall be held at
the offices of the company or at any other place in the country as may be
determined by the Board of Directors, at ten o'clock A.M. upon the fourth Monday
in January of each year, or on such other date which shall not be a legal
holiday as shall be determined by the Board of Directors.
0.02. Required notice of shareholders' meeting (See Section 2.04): Not
less than ten days.
0.03. Authorized number of directors (See Section 3.01): Eleven (11)
0.04. Required notice of directors' meetings (See Section 3.05):
(a) not less than five days if by mail, and
(b) not less than 48 hours if by telegram, telephone, teletype,
telegraph, facsimile, or other form of wire or wireless communication, or
personal delivery.
0.05. Authorized number of Vice Presidents (See Section 4.01): One to
thirteen.
ARTICLE I. OFFICES
1.01. Principal and Business Offices. The corporation may have such
principal and other business offices, either within or without the State of
Wisconsin, as the Board of Directors may designate or as the business of the
corporation may require from time to time.
1.02. Registered Office. The registered office of the corporation
required by the Wisconsin Business Corporation Law to be maintained in the State
of Wisconsin may be, but need not be, identical with the principal office in the
State of Wisconsin, and the address of the registered office may be changed from
time to time by the Board of Directors or by the registered agent. The business
office of the registered agent of the corporation shall be identical to such
registered office.
ARTICLE II. SHAREHOLDERS
2.01. Annual Meeting. The annual meeting of the shareholders shall be
held at the date and hour in each year set forth in Section 0.01, or at such
other time and date within thirty days before or after said date as may be fixed
by or under the authority of the Board of Directors, for the purpose of electing
directors and for the transaction of such other business as may come before the
meeting. If the day fixed for the annual meeting shall be a legal holiday in the
State of Wisconsin, such meeting shall be held on the next succeeding business
day. If the election of directors shall not be held on the day designated
herein, or fixed as herein provided, for any annual meeting of the shareholders,
or at any adjournment thereof, the Board of Directors shall cause the election
to be held at a special meeting of the shareholders as soon thereafter as
conveniently may be.
2.02. Special Meeting. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by the Wisconsin Business
Corporation Law, may be called by the Board of Directors or the President. The
corporation shall call a special meeting of shareholders in the event that the
holders of at least 10% of all of the votes entitled to be cast on any issue
proposed to be considered at the proposed special meeting sign, date and deliver
to the corporation one or more written demands for the meeting describing one or
more purposes for which it is to be held. The corporation shall give notice of
such a special meeting within thirty days after the date that the demand is
delivered to the corporation.
2.03. Place of Meeting. The Board of Directors may designate any place,
either within or without the State of Wisconsin, as the place of meeting for any
annual or special meeting of shareholders. If no designation is made, the place
of meeting shall be the principal office of the corporation. Any meeting may be
adjourned to reconvene at any place designated by vote of a majority of the
shares represented thereat.
2.04. Notice of Meeting. Written notice stating the place, day and hour
of the meeting and, in case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less than the number of days
set forth in Section 0.02 (unless a longer period is required by the law or the
articles of incorporation) nor more than sixty days before the date of the
meeting, either personally or by mail, by or at the direction of the President,
or the Secretary, or other officer or persons calling the meeting, to each
shareholder of record entitled to vote at such meeting and to such other persons
as required by the Wisconsin Business Corporation Law. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail,
addressed to the shareholder at his, her or its address as appears on the stock
record books of the corporation, with postage thereon prepaid. If an annual or
special meeting of shareholders 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 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 record date.
2.05. Closing of Transfer Books or Fixing of Record Date. For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or shareholders entitled to
receive payment of any dividend, or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors may provide
that the stock transfer books shall be closed for a stated period but not to
exceed, in any case, seventy days. If the stock transfer
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books shall be closed for the purpose of determining shareholders entitled to
notice of or to vote at a meeting of shareholders, such books shall be closed
for at least ten days immediately preceding such meeting. In lieu of closing the
stock transfer books, the Board of Directors may fix in advance a date as of 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 the stock transfer books
are not closed and 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. If no record
date is fixed by the Board of Directors or by the Wisconsin Business Corporation
Law for the determination of shareholders entitled to demand a special meeting
under Section 2.02, the record date shall be the date that the first shareholder
signs the demand. 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 a meeting of shareholders is effective for any
adjournment of such meeting unless the Board of Directors fixes a new 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.
2.06. Voting Records. After a record date for a special or annual
meeting of shareholders 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 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 Section 2.07. 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. Shares entitled to vote as a separate voting group may
take action on a matter at a meeting only if a quorum of those shares exists
with respect to that matter. Except as otherwise provided 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 a
meeting, other than for the purpose of objecting to holding the meeting or
transacting business at the meeting, it is considered present for purpose of
determining whether a quorum exists for the remainder of the meeting and for any
adjournment of that meeting unless a new 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 or the Wisconsin Business Corporation Law
requires a greater number of affirmative votes. Unless otherwise provided in the
articles of incorporation, each director shall be elected by a plurality of the
votes cast by the shares entitled to vote in the election of directors at a
meeting at which a quorum is
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present. Though less than a quorum of the outstanding votes of a voting group
are represented at a meeting, a majority of the votes so represented may adjourn
the meeting from time to time without further notice. At such adjourned meeting
at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
2.08. Conduct of Meetings. The Chairman of the Board and in his or her
absence any person chosen by the shareholders present, shall call the meeting of
the shareholders to order and shall act as Chairman of the meeting, and the
Secretary 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 other person to act as Secretary of the meeting.
2.09. Proxies. At all meetings of shareholders, a shareholder entitled
to vote may vote in person or by proxy appointed in writing by the shareholder
or his or her duly authorized attorney in fact. Such proxy shall be filed with
the Secretary of the Corporation before or at the time of the meeting. Unless
otherwise provided in the proxy, a proxy may be revoked at any time before it is
voted, either by written notice filed with the Secretary or the acting secretary
of the meeting or by oral notice given by the shareholder to the presiding
officer during the meeting. The presence of a shareholder who has filed his or
her proxy shall not of itself constitute a revocation. No proxy shall be valid
after eleven months from the date of its execution, unless otherwise provided in
the proxy. The Board of Directors shall have the power and authority to make
rules 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 a meeting of shareholders, except
to the extent that the voting rights of the shares of any class or classes are
enlarged, limited or denied by the articles of incorporation.
2.11. Voting of Shares by Certain Holders.
(a) Other Corporations. Shares standing in the name of
another corporation may be voted either in person or by proxy, by the president
of such corporation or any other officers appointed by such president. A proxy
executed by any principal officer of such other corporation or assistant thereto
shall be conclusive evidence of the signer's authority to act, in the absence of
express notice to this corporation, given in writing to the Secretary of this
corporation, at the designation of some other person by the Board of Directors
or the by-laws of such other corporation.
(b) Legal Representatives and Fiduciaries. Shares held by an
administrator, executor, guardian, conservator, trustee in bankruptcy, receiver,
or assignee for creditors may be voted by him, either in person or by proxy,
without a transfer of such shares into his name, provided that there is filed
with the Secretary before or at the time of meeting proper evidence of his
incumbency and the number of shares held. Shares standing in the name of a
fiduciary may be voted by him, either in person or by proxy. A proxy executed by
a fiduciary, shall be conclusive evidence of the signer's authority to act, in
the absence of express notice to this corporation, given in writing to the
Secretary of this corporation, that such manner of voting is expressly
prohibited or otherwise directed by the document creating the fiduciary
relationship.
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(c) Pledges. A shareholder whose shares are pledged shall be
entitled to vote such shares until the shares have been transferred into the
name of the pledgee, and thereafter the pledgee shall be entitled to vote the
shares so transferred.
(d) Treasury Stock and Subsidiaries. Neither treasury
shares, nor shares held by another corporation if a majority of the shares
entitled to vote for the election of directors of such other corporation is held
by the corporation, shall be voted at any meeting or counted in determining the
total number of outstanding shares entitled to vote, but shares of its own issue
held by this corporation in a fiduciary capacity, or held by such other
corporation in a fiduciary capacity, may be voted and shall be entitled to vote.
(e) Minors. Shares held by a minor may be voted by such
minor in person or by proxy and no such vote shall be subject to disaffirmance
or avoidance, unless prior to such vote the Secretary of the corporation has
received written notice or has actual knowledge that such shareholder is a
minor.
(f) Incompetents and Spendthrifts. Shares held by a
incompetent or spendthrift may be voted by such incompetent or spendthrift in
person or by proxy and no such vote shall be subject to disaffirmance or
avoidance, unless prior to such vote the Secretary of the Corporation has actual
knowledge that such shareholder has been adjudicated an incompetent or
spendthrift or actual knowledge of filing of judicial proceedings for
appointment of a guardian.
(g) Joint Tenants. Shares registered in the names of two or
more individuals who are named in the registration as joint tenants may be voted
in person or by proxy signed by any one or more of such individuals if either
(i) no other such individual or his legal representative is present and claims
the right to participate in the voting of such shares or prior to the vote filed
with the Secretary of the corporation a contrary written voting authorization or
direction or written denial of authority of the individual present or signing
the proxy proposed to be voted or (ii) all such other individuals are deceased
and the Secretary of the corporation has no knowledge that the survivor has been
adjudicated not to be the successor to the interest of those deceased.
2.12. Waiver of Notice by Shareholders. Whenever any notice whatever is
required to be given to any shareholder of the corporation under the articles of
incorporation or by-laws or any provision of law, a waiver thereof in writing,
signed at any time, whether before or after the time of meeting, by the
shareholder entitled to such notice, shall be deemed equivalent to the giving of
such notice; provided that such waiver in respect to any matter of which notice
is required under any provision of the Wisconsin Business Corporation Law, shall
contain the same information as would have been required to be included in such
notice, except the time and place of meeting.
2.13. Unanimous Consent without Meeting. Any action required or
permitted by the articles of incorporation or by-laws or any provision of law to
be taken at a meeting of the shareholders, may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by all of
the entitled shareholders to vote with respect to the subject matter thereof.
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ARTICLE III. BOARD OF DIRECTORS
3.01. General Powers and Number. The business and affairs of the
corporation shall be managed by its Board of Directors. The number of directors
of the corporation shall be as provided in Section 0.03.
3.02. Tenure and Qualifications. Each director shall hold office until
the next annual meeting of shareholders, and until his or her successor shall
have been elected, or until his or her prior death, resignation or removal. A
Director may be removed from office by affirmative vote of a majority of the
outstanding shares entitled to vote for the election of such director, taken at
a meeting of shareholders called for that purpose. A director may resign at any
time by filing his or her written resignation with the Secretary of the
corporation, which shall be effective when the notice is delivered unless the
notice specifies a later date. Directors need not be residents of the State of
Wisconsin or shareholders of the corporation. No one shall be eligible for
election as a director, nor shall any directors be eligible for re-election
after attaining the age of seventy-two (72); provided, however, that this
restriction shall not apply to any director with an attained age of seventy-two
(72) holding such office at the time of adoption of this by-law, i.e., November
14, 2000 until January 1, 2002.
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 of shareholders, and each adjourned session thereof. The place of such
regular meeting shall be the same as the place of the meeting of shareholders
which precedes it, or such other suitable place as may be announced at such
meeting of shareholders. The Board of Directors may provide, by resolution, the
time and place, either within or without the State of Wisconsin, for the holding
of additional regular meetings without other notice than such resolution.
3.04. Special Meetings. Special meetings of the Board of Directors may
be called by or at the request of the Chairman of the Board, the President, the
Secretary or any two directors. If such meeting shall be called by two
directors, the date of the meeting shall be within ten days of receipt by the
Secretary or, in his absence by the Chairman of the Board, the President or any
Assistant Secretary, of their request, at a time determined by such officer. The
Chairman of the Board, the President or the Secretary calling any special
meeting of the Board of Directors, except as otherwise provided by by-law, may
fix any place, either within or without the State of Wisconsin, as the place for
holding any special meeting of the Board of Directors called by them, and if no
other place is fixed, the place of meeting shall be the principal business
office of the Corporation in the State of Wisconsin.
3.05. Notice; Waiver. Notice of such meeting of the Board of Directors
(unless otherwise provide in or pursuant to Section 3.03) shall be given by
written notice delivered personally or mailed or given by telegram or facsimile
to each director at his or her 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 that number of hours prior thereto as set forth in Section 0.04.
If mailed, such notice shall be deemed to be delivered when deposited in the
United States mail so addressed, with postage thereon prepaid. If notice be
given by telegram or facsimile, such notice shall be deemed to be delivered when
the telegram is delivered to the telegraph company. Whenever any notice whatever
is required to be given to any director of the corporation under the articles of
incorporation or by-laws or any provision of law, a waiver thereof in writing,
signed at any time, whether before or after the time of meeting, by the director
6
entitled to such notice, shall be deemed equivalent to the giving of such
notice. The attendance of a director at a meeting shall constitute a waiver of
objects thereat to the transaction of any business because the meeting is not
lawfully called or convened. Neither business to be transacted at, nor the
purpose of, any regular or special meeting of the Board of Directors need to be
specified in the notice or waiver of notice of such meeting.
3.06. Quorum. Except as otherwise provided by law or by the articles of
incorporation or these by-laws, a majority of the number of directors as
provided in Section 0.03 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 law or by the
articles of incorporation or these by-laws. Annually, at the meeting of the
Board of Directors which follows the annual meeting of the shareholders, the
directors shall choose from among them a Chairman of the Board, who shall serve
as such until a successor is elected.
3.08. Conduct of Meetings. In the absence of the Chairman of the Board,
the President shall call the meeting of the Board of Directors to order, and
shall act as Chairman of the meeting, and in their absence any director chosen
by the Directors present shall call the meeting 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.
3.09. Vacancies. Any vacancy occurring in the Board of Directors,
including a vacancy created by an increase in the number of directors, may be
filled until the next succeeding annual election by the affirmative vote of a
majority of the directors then in office, though less than a quorum of the Board
of Directors; provided, that in case of a vacancy created by the removal of a
director by vote of the shareholders, the shareholders shall have the right to
fill such vacancy at the same meeting or any adjournment thereof; and provided
further, that a vacancy filled by the Board of Directors shall be filled by the
vote of the remaining director(s) elected by the class of shareholders which
would be entitled to fill that vacancy at a meeting of the shareholders.
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 from time to time a reasonable
compensation for directors of the corporation; provided that persons who are
directors and also are officers or employees of the corporation eligible shall
be ineligible to receive compensation as directors. By affirmative vote of a
majority of such directors, and irrespective of any personal interest of any of
them, the Board of Directors also may establish, from time to time, a reasonable
compensation for each of the officers of the corporation. The Board of
Directors, from time to time, may delegate its authority under this by-law to an
appropriate committee. The Board of Directors also shall have authority to
provide for or to delegate authority to an appropriate committee to provide for
reasonable pensions, disability or death benefits, and other benefits or
payments to directors, officers and employees, and to their estates, families,
dependents or beneficiaries on account of services rendered by such directors,
officers and employees of the corporation.
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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 or she is a member at which action on any corporate matter is taken shall be
presumed to have assented to the action taken unless his or her dissent shall be
entered in the minutes of the meeting or unless he or she shall file his or her
written dissent to such action with the person acting as the Secretary of the
meeting before the adjournment thereof or shall forward such dissent by
registered mail to the Secretary of the corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
3.12. Committees. The Board of Directors by resolution adopted by the
affirmative vote of a majority of them then in office may designate one or more
committees from time to time. Each such committee shall consist of at least
three directors and shall have those of the powers of the Board of Directors as
shall be granted to such committee. Each such committee may exercise its power
at times when the Board of Directors is not in session, subject to the by-laws
of the corporation. No such committee ever shall have the power or authority,
however, to do any of the following: adopt, amend, or repeal by-laws; authorize
dividends or other distributions; approve or propose action required by law to
be approved by shareholders; fill vacancies on the Board of Directors or any
committee of the Board of Directors; amend the articles of incorporation; adopt,
amend or repeal by-laws, approve a plan of merger not requiring shareholder
approval; authorizing or approve reacquisition of shares of stock; or authorize
or approve the issuance or sale or contract for sale of shares of stock. The
Board of Directors also at any time may elect one or more of its members as
alternate members of any such committee. Any such alternate, upon request by the
Chairman of the board, or in his or her absence the President, or in his or her
absence the Chairman of such committee, may take the place of any absent member
or members of the committee at any of its meetings. Except as provided by
by-laws or by resolution of the Board of Directors, each such committee shall
fix its own rules governing the conduct of its activities as the Board of
Directors may request.
3.13. Unanimous Consent Without Meeting. Any action required or
permitted by the articles of incorporation or by-laws or any provision of law to
be taken by the Board of Directors at a meeting or by resolution may be taken
without a meeting, if a consent in writing, setting forth the action so taken,
shall be signed by all of the directors then in office.
3.14. Telephonic Meetings. Except as provided by this by-law, any
action required or permitted by the articles of incorporation or by-laws or any
provision of law to be taken by the Board of Directors at a meeting or by
resolution may be taken by a quorum of the Board of Directors at a telephonic
meeting or other meeting utilizing electronic communication, if all
participating directors: are informed that a meeting is taking place at which
official business may be transacted; simultaneously may hear each other during
the meeting; immediately is able to send messages to all other participating
directors; and if all communication during the meeting immediately is
transmitted to each participating director. No meeting of the Board of Directors
held pursuant to this by-law may vote upon a plan of merger or shares exchange;
or to sell, lease, exchange or otherwise dispose of substantial property or
assets of the corporation; to dissolve voluntarily or to revoke voluntary
dissolution proceedings; or to file for bankruptcy.
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ARTICLE IV. OFFICERS
4.01. Number. The principal officers of the corporation shall be a
President, the number of Vice-Presidents as provided in Section 0.05, 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. Any two or more offices
may be held by the same person, except the offices of President and Secretary
and the offices of President and Vice-President.
4.02. Election and Term of Office. The officers 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 conveniently may
be. Each officer shall hold office until his successor shall have been duly
elected or until his prior death, resignation or removal.
4.03. Resignation; Removal. Any officer may resign at any time by
delivering written notice to an officer of the corporation. A resignation shall
be effective when delivered unless the notice specifies a later date which is
accepted by the corporation. Any officer or agent may be removed by the Board of
Directors whenever in its judgment the best interest of the corporation will be
served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed. Election or appointment shall not of
itself create contract rights.
4.04. Vacancies. A vacancy in any principal office because of death,
resignation, removal, disqualification or otherwise, shall be filled by the
Board of Directors for the unexpired portion of the term.
4.05. This Section 4.05 is intentionally left vacant.
4.06. President and Chief Executive Officer. The President shall be the
Chief Executive Officer of the corporation. Subject to the control of the Board
of Directors, he shall be responsible for the control and general management of
all of the business and affairs of the corporation. In the absence of the
Chairman of the Board he may preside at all meetings of the shareholders and of
the Board of Directors. He shall see that all resolutions and orders of the
Board of Directors and its committees are carried into effect. 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 ordinary business of the corporation, or which shall be authorized by
resolution of the Board of Directors. Except as otherwise provided by law or the
Board of Directors, he also 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 have the powers of
supervision of the business of the corporation. 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.
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4.07. 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. The Board of
Directors may designate a Vice-President as the Chief Financial Officer of the
Corporation, in which event he or she shall have responsibility for all
financial matters which affects the Corporation other than those expressly
provided for the Treasurer. 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 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.
4.08. The Secretary. The Secretary shall: (a) keep the minutes of the
meetings of the shareholders and of the Board of Directors in one or more books
provided for that purpose; (b) see that all notices are duly given in accordance
with the provisions of these by-laws or as required by 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) keep or arrange for
the keeping of a register of the post office addresses of each shareholder which
shall be furnished to the Secretary by such shareholder; (e) sign with the
President, or a Vice-President, certificates for shares of the corporation, the
issuance of which shall have been authorized by resolution of the Board of
Directors; (f) have general charge of the stock transfer books of the
corporation; and (g) in general perform all duties incident to the office of
Secretary and have such other duties and exercise such authority as from time to
time may be delegated or assigned to him/her by the President or by the Board of
Directors.
4.09. The Treasurer. The Treasurer shall: (a) have charge and custody
of and be responsible for all funds and securities of the corporation; (b)
receive and give receipts for money due and payables to the corporation from any
source whatsoever, and deposit all such moneys in the name of the corporation in
such banks, trust companies or other depositories as shall be selected in
accordance with the provisions of Section 5.04; and (c) in general perform all
of the duties incident to the office of Treasurer and have such other duties and
exercise such other authority as from time to time may be delegated or assigned
to him by the President 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
duties in such sum and with such surety or sureties as the Board of Directors
shall determine.
4.10. Assistant Secretaries and Assistant Treasurers. There shall be
such number of Assistant Secretaries and Assistant Treasurers as the Board of
Directors may from time to time authorize. The Assistant Secretaries may sign
with the President or a Vice-President certificates for shares of the
corporation the issuance of which shall have been authorized by a resolution of
the Board of Directors. The Assistant Treasurers shall respectively, if required
by the Board of Directors, give bonds for the faithful discharge of their duties
in such sums and with such sureties as the Board of Directors shall determine.
The Assistant Secretaries and Assistant Treasurers, in general, shall perform
such duties and have such authority as shall from time to time be delegated or
assigned to them by the Secretary or the Treasurer, respectively, or by the
President or the Board of Directors.
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4.11. Other Assistants and Acting Officers. The Board of Directors
shall have the power 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 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.
4.12. 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 President, or, in his absence by one of the Vice Presidents and by the
Secretary, an Assistant Secretary, the Treasurer, an Assistant Treasurer, or
Controller. When necessary or required by law, the Secretary or an Assistant
Secretary shall affix the corporate seal to all such instruments. When an
instrument has been executed in the manner provided by this Section, no party or
third person shall be required to inquire into the authority of the officers
signing for the corporation so to act.
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 and, in his absence, by any Vice-President then
present, and (b)
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whenever in the judgment of the President and, in his absence, by any
Vice-President, it is desirable for this corporation to execute a proxy or
written consent in respect to any share 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, in his absence, by
any Vice President, without necessity of any authorization by the Board of
Directors, affixation of corporate seal, or counter-signature or attestation by
another officer. Any person or persons designated in the manner provided by this
Section as the proxy or proxies of this corporation shall have full right, power
and authority to vote the shares or other securities issued by such other
corporation and owned by this corporation the same as such shares or other
securities might be voted by this corporation.
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.01. Certificates for Shares. Certificates representing shares of the
corporation shall be in such form, consistent with law, as shall be determined
by the Board of Directors. All certificates shall be signed by the President or
a Vice-President and by the Secretary or an Assistant Secretary. All
certificates shall be numbered consecutively or otherwise identified. The name
and address of each person to whom a certificate is issued, together with the
number of shares represented by the certificate and the date of its issue, shall
be entered on the stock transfer books of the corporation. All certificates
surrendered to the corporation shall be canceled. No new certificate for
previously issued shares shall be issued until the outstanding certificate(s)
for the same share shall have been surrendered and canceled, except as provided
by Section 6.06.
6.02. Facsimile Signatures and Seal. The seal of the corporation on any
certificate for shares may be a facsimile. The signatures of the President or
Vice-President and the Secretary or Assistant Secretary upon a certificate may
be facsimiles if the certificate is manually signed on behalf of a transfer
agent, or a registrar, other than the corporation itself or an employee of the
corporation.
6.03. Signature by Former Officers. 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 have and exercise all the rights and power of an
owner. Where a certificate for shares is presented to the corporation with a
request to register for transfer, the corporation shall not be liable to the
owner or any other person suffering loss as a result of such registration of
transfer if (a) there were on or with the certificate the necessary endorsements
and (b) the corporation had no duty to inquire into adverse claims or has
discharged any such duty. The corporation may require reasonable assurance that
said endorsements are genuine and effective and compliance with such other
regulations as may be prescribed by or under the authority of the Board of
Directors.
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6.05. Restrictions on Transfer. The face or reverse side of each
certificate representing shares shall bear a conspicuous notation of any
restriction imposed by the corporation upon the transfer of such shares.
6.06. Lost, Destroyed or Stolen Certificates. Where the owner claims
that his certificate for 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) satisfied such other reasonable requirements as may be prescribed by or
under the authority of the Board of Directors.
6.07. Consideration for Shares. The shares of the corporation may be
issued for such consideration as shall be fixed from time to time by the Board
of Directors, provided that any shares having a par value shall not be issued
for a consideration less than the par value thereof. The consideration to be
paid for shares may be paid in whole or in part, in money, on other property,
tangible or intangible, or in labor or services actually performed for the
corporation. When payment of the consideration for which shares are to be issued
shall have been received by the corporation, such shares shall be deemed to be
fully paid and nonassessable by the corporation. No certificate shall be issued
for any share until such share is fully paid.
6.08. Stock Regulations. The Board of Directors shall have the power
and authority to make all such 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. INDEMNIFICATION
7.01. Indemnification. Indemnification by the corporation shall be
provided pursuant to Wisconsin Statute Section 180.0859 et. seq. Such
indemnification shall be provided to directors, officers, employees, and agents
of the corporation. Directors and officers eligible for indemnification shall
include:
(a) A natural person who is or was a director or officer of
the corporation.
(b) A natural person who, while a director or officer of the
corporation, is or was serving at the request of the corporation as a director,
officer, partner, trustee, member of any governing or decision making committee,
employee or agent of another corporation or foreign corporation, partnership,
joint venture, trust or other enterprise.
(c) A natural person who, while a director or officer of the
corporation, is or was serving an employee benefit plan because his or her
duties to the corporation also imposed duties on, or otherwise involved services
by, the person to the plan or to participants in or beneficiaries of the plan.
(d) And, unless the context requires otherwise, the estate
or personal representative of a director or officer.
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The corporation shall indemnify a director, officer, employee or agent to
the extent he or she has been successful on the merits or otherwise in the
defense of a proceeding for all reasonable expenses incurred in the proceeding
if the director, officer, employee, or agent was a party because he or she is a
member or officer of the corporation.
In cases not included under the above paragraph, the corporation shall
indemnify a director, officer, employee or agent against liability incurred by
that person in a proceeding to which that person was a party because he or she
is or was a director, officer, employee, or agent of the corporation, unless
liability was incurred because that person breached or failed to perform a duty
he or she owed to the corporation and the breach or failure to perform
constitutes any of the following:
(a) A willful failure to deal fairly with the corporation or
its shareholders in connection with a matter in which the person has a material
conflict of interest.
(b) A violation of criminal law unless the person had a
reasonable cause to believe his or her conduct was lawful or no reasonable cause
to believe his or her conduct was unlawful.
(c) A transaction from which the person derived an improper
personal profit.
(d) Willful misconduct.
For purposes of this Article "expenses" shall be defined to include
fees, costs, charges, disbursements, attorneys fees and other expenses incurred
in connection with the proceeding. "Liability" includes an obligation to pay a
judgment, settlement, penalty, assessment, forfeiture or fine, including an
excess tax assessment with respect to an employee benefit plan, and reasonable
expenses. "Party" includes a natural person who was, or is threatened to be
made, a named defendant or respondent in a proceeding. "Proceeding" means any
threatened, pending or completed civil, criminal, administrative or
investigative action, suit, arbitration or other proceeding, whether formal or
informal, which involves foreign, federal, state or local law and which is
brought by or in the right of the corporation or by any other person.
The termination of a proceeding by judgment, order, settlement or
conviction, or upon a plea of no contest or an equivalent plea, does not, by
itself, create a presumption that indemnification of the director or officer is
not required.
The director, officer, employee, or agent seeking indemnification shall
select one of the following means for determining his or her right to
indemnification:
(a) By a majority vote of a quorum of the Board of Directors
consisting of directors not at the time parties to the same or related
proceedings. If a quorum of disinterested directors cannot be obtained, by
majority vote of a committee duly appointed by the Board of Directors and
consisting solely of two or more directors not at the same time parties to the
same or related proceedings. Directors who are parties to the same or related
proceedings may participate in the designation of members of the committee.
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(b) By independent legal counsel selected by a quorum of the
Board of Directors or its committee in the manners prescribed in paragraph (a)
above or, if unable to obtain such quorum or committee, by a majority vote of
the full Board of Directors, including directors who are parties to the same or
related proceedings.
(c) By a panel of three arbitrators consisting of one
arbitrator selected by those directors entitled under paragraph (b) to select
independent legal counsel, one arbitrator selected by the director or officer
seeking indemnification and one arbitrator selected by the two arbitrators
previously selected.
(d) By an affirmative vote of shares as provided in
Wisconsin Statutes Section 180.0725 through 180.0727. Shares owned by, or voted
under the control of, persons who are at the time parties to the same or related
proceedings, whether as plaintiffs or defendants or in any other capacity, may
not be voted in making the determination.
(e) By a Court under Wisconsin Statutes Section 180.0854.
(f) By any other method provided for and any additional
right to indemnification permitted under Wisconsin Statutes Section 180.0858.
Upon written request by a person who is a party to a proceeding, a
corporation may pay or reimburse his or her reasonable expenses as incurred, if
the person provides the corporation with a written affirmation of his or her
good faith belief that he or she has not reached or failed to perform his or her
duties to the corporation. A bond or undertaking need not be required prior to
the advancement of such expenses.
Indemnification additional to that set forth in this Article may be
provided by resolution of the Board of Directors except as restricted by law.
7.02 Insurance. The corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of another corporation, against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability under the provisions of this By-law.
ARTICLE VIII. AMENDMENTS
8.01. By Shareholders. These by-laws may be altered, amended or
repealed and new by-laws may be adopted by the shareholders by affirmative vote
of not less than a majority of the shares present or represented at any annual
or special meeting of the shareholders at which a quorum is in attendance.
8.02. 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; but no by-law adopted by the shareholders shall be
amended or repealed by the Board of Directors if the by-law so adopted so
provides.
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8.03. 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.
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