Amended May 16, 2003
Effective Immediately
Unless Otherwise Noted
BY-LAWS
OF
OSHKOSH TRUCK 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 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 (the "Annual
Meeting") shall be held on the first Tuesday in February of each year at such
time or on such other date as may be fixed by or under the authority of the
Board of Directors. If the day fixed for the Annual Meeting shall be a legal
holiday in the State of Wisconsin, then such meeting shall be held on the next
succeeding Business Day (as defined below). 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. At each Annual
Meeting, the shareholders shall elect individuals to the Board of Directors in
accordance with the articles of incorporation. At any such Annual Meeting, only
other business properly brought before the Annual Meeting in accordance with
Section 2.11 may be transacted.
2.02. Special Meeting.
(a) A special meeting of the shareholders (a "Special Meeting") may be
called only by (i) a majority of the Board of Directors, (ii) the Chairman of
the Board or (iii) the President. The President shall call a Special Meeting
upon the demand, in accordance with this Section 2.02, of the holders of record
representing at least 10% of all the votes entitled to be cast on any issue
proposed to be considered at the Special Meeting.
(b) To enable the corporation to 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 on which the Board of
Directors adopts the resolution fixing the Demand Record Date and shall not be
more than ten days after the date on which the resolution fixing the Demand
Record Date is adopted by the
Board of Directors. Any shareholder of record entitled to demand a Special
Meeting who is seeking to have shareholders demand a Special Meeting shall, by
sending written notice to the Secretary at the principal offices of the
corporation, by hand or by certified or registered mail, return receipt
requested, request the Board of Directors to fix a Demand Record Date. The Board
of Directors shall promptly, but in all events within ten days after the date on
which a valid request to fix a Demand Record Date is received, adopt a
resolution fixing the Demand Record Date and shall make a public announcement of
such Demand Record Date. If no Demand Record Date has been fixed by the Board of
Directors within ten days after the date on which such request is received by
the Secretary at the principal offices of the corporation, then the Demand
Record Date shall be the 10th day after the first date on which a valid written
request to set a Demand Record Date is received by the Secretary at the
principal offices of the corporation. 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 and by the beneficial
owner or owners, if any, on whose behalf the request is made, shall bear the
date of signature of each such shareholder and any such beneficial owner and
shall set forth all information about each such shareholder and any such
beneficial owner that would be required to be set forth in a shareholder's
notice described in Section 2.11(a)(ii) as if the notice related to an Annual
Meeting.
(c) 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, calculated as if the Demand Record Date were the record date for the
Special Meeting, must be delivered to the Secretary at the principal offices of
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 Section 2.02(b)), shall be signed by one
or more persons who as of the Demand Record Date are shareholders of record and
by the beneficial owners, if any, on whose behalf the demand is made, shall bear
the date of signature of each such shareholder and any such beneficial owner,
shall set forth the name and address of each such shareholder (as they appear in
the corporation's books) and any such beneficial owner signing such demand and
the class and number of shares of the corporation that are owned of record
and/or beneficially by each such shareholder and any such beneficial owner,
shall be sent to the Secretary at the principal offices of the corporation, by
hand or by certified or registered mail, return receipt requested, and shall be
received by the Secretary at the principal offices of the corporation within
seventy 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 Section
2.02(c), the Secretary receives a written agreement signed by each Soliciting
Shareholder (as defined below) pursuant to which each Soliciting Shareholder,
jointly and severally, agrees to pay the corporation's costs of holding the
Special Meeting, including the costs of preparing and mailing proxy materials
for the corporation's own solicitation, provided that if each of the resolutions
introduced by any Soliciting Shareholder at such meeting is adopted, and each of
the individuals nominated by or on behalf of any Soliciting Shareholder for
election as a director at such meeting is elected, then the Soliciting
Shareholders shall not be required to pay such costs. For purposes of these
by-laws, the following terms shall have the respective meanings set forth below:
(i) "Affiliate" of any Person (as defined herein) shall mean
any Person controlling, controlled by or under common control with
such first Person.
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(ii) "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.
(iii) "Participant" shall have the meaning assigned to such
term in Rule 14a-12 promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act").
(iv) "Person" shall mean any individual, firm, corporation,
partnership, joint venture, association, trust, unincorporated
organization or other entity.
(v) "Proxy" shall have the meaning assigned to such term in
Rule 14a-1 promulgated under the Exchange Act.
(vi) "Solicitation" shall have the meaning assigned to such
term in Rule 14a-1 promulgated under the Exchange Act.
(vi) "Soliciting Shareholder" shall mean, with respect to
any Special Meeting demanded by a shareholder or shareholders, each of
the following Persons:
(A) if the number of shareholders signing the
demand or demands of meeting delivered to the Secretary at
the principal offices of the corporation pursuant to Section
2.02(c) is ten or fewer, each Person signing any such
demand; or
(B) if the number of shareholders signing the
demand or demands of meeting delivered to the corporation
pursuant to Section 2.02(c) is more than ten, each Person
who either (I) was a Participant in any Solicitation of such
demand or demands or (II) at the time of the delivery to the
Secretary at the principal offices of the corporation of the
documents described in Section 2.02(c) had engaged or
intends to engage in any Solicitation of Proxies for use at
such Special Meeting (other than a Solicitation of Proxies
on behalf of the corporation).
A "Soliciting Shareholder" shall also mean each Affiliate of a
Soliciting Shareholder described in clause (A) or (B) above who is a
member of such Soliciting Shareholder's "group" for purposes of Rule
13d-5(b) under the Exchange Act, and any other Affiliate of such a
Soliciting Shareholder, if a majority of the directors then in office
determines, reasonably and in good faith, that such Affiliate should
be required to sign the written notice described in Section 2.02(c)
and/or the written agreement described in this Section 2.02(d) 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 date and hour as may be designated by whichever of the
Board of Directors or the Chairman of the Board shall have called such meeting.
In the case of any Special Meeting called by the Chairman of the Board upon the
demand of shareholders (a "Demand Special Meeting"), such meeting shall be held
at such date and hour as may be designated by the Board of Directors; provided,
however, that the date of any Demand Special Meeting shall be not more than
seventy days after the Meeting Record Date (as defined in Section 2.05(a)); and
provided further that in the event that the directors then in office fail to
designate a date and hour for a Demand Special Meeting within ten days after the
date that valid written demands for such meeting by the holders of record as of
the Demand Record Date of shares representing at least 10% of
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all the votes entitled to be cast on any issue proposed to be considered at the
Special Meeting, calculated as if the Demand Record Date were the record date
for the Special Meeting, are delivered to the corporation (the "Delivery Date"),
then such meeting shall be held at 10:00 A.M., local time, on the 100th day
after the Delivery Date or, if such 100th day is not a Business Day, on the
first preceding Business Day. In fixing a meeting date for any Special Meeting,
the Board of Directors or the Chairman of the Board may consider such factors as
it, he or she deems relevant within the good faith exercise of its, his or her
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 or the Chairman of the Board
to call an Annual Meeting or Special Meeting for the conduct of related
business.
(f) The corporation may engage regionally or nationally recognized
independent inspectors of elections to act as an agent of the corporation for
the purpose of promptly performing a ministerial review of the validity of any
purported written demand or demands for a Special Meeting received by the
Secretary. For the purpose of permitting the inspectors to perform such review,
no purported demand shall be deemed to have been delivered to the corporation
until the earlier of (i) five Business Days following receipt by the Secretary
of such purported demand and (ii) such date as the independent inspectors
certify to the corporation that the valid demands received by the Secretary
represent at least 10% of all the votes entitled to be cast on any issue
proposed to be considered at the Special Meeting, calculated as if the Demand
Record Date were the record date for the Special Meeting. Nothing contained in
this Section 2.02(f) shall in any way be construed to suggest or imply that the
Board of Directors or any shareholder shall not be entitled to contest the
validity of any demand, whether during or after such five Business Day period,
or to take any other action (including, without limitation, the commencement,
prosecution or defense of any litigation with respect thereto).
2.03. Place of Meeting. The Board of Directors or the Chairman of the Board
may designate any place, either within or without the State of Wisconsin, as the
place of meeting for any Annual Meeting or Special Meeting. If no designation is
made, then the place of meeting shall be the principal office of the
corporation. Any meeting may be postponed or adjourned pursuant to Section 2.07
to reconvene at any place designated by vote of the Board of Directors or by the
Chairman of the Board.
2.04. Notice of Meeting.
(a) Written notice stating the place, day and hour of an Annual
Meeting or Special Meeting shall be delivered not less than ten days nor more
than seventy days before the date of the meeting (unless a different date is
required by the law or the articles of incorporation), by or at the direction of
the Chairman of the Board or the Secretary, to each shareholder of record
entitled to vote at such meeting and to such other persons as are required by
the Wisconsin Business Corporation Law. In the event of any Demand Special
Meeting, such notice of meeting shall be sent prior to the later of (x) the two
days after the Meeting Record Date for such Demand Special Meeting and (y)
thirty days after the Delivery Date. For purposes of this Section 2.04, notice
by "electronic transmission" (as defined in the Wisconsin Business Corporation
Law) is written notice. Written notice pursuant to this Section 2.04 shall be
deemed to be effective (a) when mailed, if mailed postpaid and addressed to the
shareholder's address shown in the corporation's current record of shareholders
or (b) when electronically transmitted to the shareholder in a manner authorized
by the shareholder.
(b) In the case of any Special Meeting, (i) the notice of meeting
shall describe any business that the Board of Directors shall have theretofore
determined to bring before the meeting and (ii) in the case of a Demand Special
Meeting, the notice of meeting (A) shall describe any business set forth in the
statement of purpose of the demands received by the corporation in accordance
with Section 2.02, (B)
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shall contain all of the information required in the notice received by the
corporation in accordance with Section 2.11(b) and (C) shall describe any
business that the Board of Directors shall have theretofore determined to bring
before the Demand Special Meeting. Except as otherwise provided in these
by-laws, in the articles of incorporation or in the Wisconsin Business
Corporation Law, the notice of an Annual Meeting need not include a description
of the purpose or purposes for which the meeting is called.
(c) If any Annual Meeting or Special Meeting is adjourned to a
different date, time or place, then 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, then 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.
(a) The Board of Directors may fix in advance a date not less than ten
days and not more than seventy days prior to the date of an 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 thirty 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 Annual Meeting or Special
Meeting. When a determination of shareholders entitled to notice of or to vote
at the Annual Meeting or Special Meeting has been made as provided in this
section, such determination shall be applied to any adjournment thereof unless
the Board of Directors fixes a new Meeting Record Date and except as otherwise
required by law. A new Meeting Record Date must be set if a meeting is adjourned
to a date more than one hundred twenty days after the date fixed for the
original meeting.
(b) 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 other than those
set forth in Section 2.02(a) and Section 2.05(a). Such record date shall not be
more than seventy days prior to the date on which the particular action,
requiring such determination of shareholders, is to be taken. If the Board of
Directors does not fix a record date for the determination of shareholders
entitled to receive a share dividend or distribution (other than a distribution
involving a purchase, redemption or other acquisition of the corporation's
shares), then the close of business on the date on which the resolution of the
Board of Directors is adopted declaring the dividend or distribution shall be
the record date.
2.06. Voting Records. After a Meeting Record Date has been fixed, the
corporation shall prepare a list of the names of all of the shareholders
entitled to notice of the meeting. The shareholders' 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. Any shareholder or his, her or its agent or attorney,
on written demand, may inspect the shareholders' list beginning two Business
Days after the corporation gives the notice of the meeting for which the
shareholders' 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 and, if and to the extent
entitled to do so under the Wisconsin Business Corporation Law, may copy the
shareholders' list, during regular business hours and at his, her or its
expense, during the period that it is available for inspection hereunder. The
corporation shall make the shareholders' list available at the meeting and any
shareholder or his, her or its agent or attorney may inspect the shareholders'
list at any
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time during the meeting or any adjournment thereof. The original stock transfer
books of the corporation shall be prima facie evidence as to who are the
shareholders entitled to inspect the shareholders' list or to vote at any
meeting of the shareholders. 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; Postponement; Adjournments.
(a) Shares entitled to vote as a separate voting group may take action
on a matter at an Annual Meeting or Special Meeting only if a quorum of those
shares exists with respect to that matter. Except as otherwise provided in the
articles of incorporation or in the Wisconsin Business Corporation Law, a
majority of the votes entitled to be cast on a matter by the voting group shall
constitute a quorum of that voting group for action on that matter. Once a share
is represented for any purpose at an 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 the
meeting unless a new Meeting Record Date is or must be set for the adjourned
meeting. If a quorum exists, then action on a matter, other than the election of
directors, by a voting group is 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 present.
(b) The Board of Directors acting by resolution may postpone and
reschedule any previously scheduled Annual Meeting or Special Meeting; provided,
however, that a Demand Special Meeting shall not be postponed beyond the 100th
day following the Delivery Date. Any Annual Meeting or Special Meeting may be
adjourned from time to time, whether or not there is a quorum, (i) at any time,
upon a resolution by 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 a resolution of the Board of Directors;
provided, however, that a Demand Special Meeting adjourned pursuant to clause
(ii) must be reconvened on or before the 100th day following the Delivery Date.
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
that might have been transacted at the meeting as originally noticed.
2.08. Conduct of Meetings. The Chairman of the Board or, in his or her
absence, the President or, in the President's absence, a Vice President
designated by the Board of Directors, shall call any Annual Meeting or Special
Meeting to order and shall act as chairman of the meeting, and the Secretary
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. The Board of Directors may, to the extent not
prohibited by law, adopt by resolution such rules and regulations for the
conduct of an Annual Meeting or Special Meeting as it shall deem appropriate.
Except to the extent inconsistent with such rules and regulations as adopted by
the Board of Directors, the chairman of the meeting shall have the right and
authority to prescribe such rules, regulations or procedures and to do such acts
as, in the judgment of the chairman of the meeting, are appropriate for the
proper conduct of an Annual Meeting or Special Meeting. Such rules, regulations
or procedures, whether adopted by the Board of Directors or prescribed by the
chairman of the meeting, may to the extent not prohibited by law include,
without limitation, the following:
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(a) the establishment of an agenda or order of business for the meeting; (b)
rules and procedures for maintaining order at the meeting and the safety of
those present; (c) limitations on attendance at or participation in the meeting
to shareholders of record of the corporation, their duly authorized and
constituted proxies (which shall be reasonable in number) or such other persons
as the chairman of the meeting shall determine; (d) restrictions on entry to the
meeting after the time fixed for the commencement thereof; (e) limitations on
the time allotted to questions or comments by participants; (f) rules and
procedures regarding the execution of election ballots before or after the time
fixed for the commencement of the meeting; (g) the appointment of an inspector
of election or an officer or agent of the corporation authorized to tabulate
votes; and (h) rules and procedures to facilitate the conduct of, and
participation in, the meeting by electronic means.
2.09. Proxies. At any Annual Meeting or Special Meeting, a shareholder
entitled to vote may vote in person or by proxy. A shareholder entitled to vote
at any Annual Meeting or Special Meeting may authorize another person to act for
the shareholder by appointing the person as a proxy. The means by which a
shareholder or the shareholder's authorized officer, director, employee, agent
or attorney-in-fact may authorize another person to act for the shareholder by
appointing the person as proxy include:
(a) Appointment of a proxy in writing by signing or causing the
shareholder's signature to be affixed to an appointment form by any reasonable
means, including, without limitation, by facsimile signature.
(b) Appointment of a proxy by transmitting or authorizing the
transmission of an electronic transmission of the appointment to the person who
will be appointed as proxy or to a proxy solicitation firm, proxy support
service organization or like agent authorized to receive the transmission by the
person who will be appointed as proxy. Every electronic transmission shall
contain, or be accompanied by, information that can be used to reasonably
determine that the shareholder transmitted or authorized the transmission of the
electronic transmission. Any person charged with determining whether a
shareholder transmitted or authorized the transmission of the electronic
transmission shall specify the information upon which the determination is made.
An appointment of a proxy is effective when a signed appointment form
or an electronic transmission of the appointment is received by the inspector of
election or the officer or agent of the corporation authorized to tabulate
votes. Unless the appointment form or electronic transmission states that the
proxy is irrevocable and the appointment is coupled with an interest, a proxy
may be revoked at any time before it is voted, either by written notice filed
with the Secretary or the 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 made an effective proxy appointment shall not of itself
constitute a revocation. A proxy appointment is valid for eleven months unless a
different period is expressly provided in the appointment. The Board of
Directors, the Chairman of the Board and the President each shall have the power
and authority to make rules as to the validity and sufficiency of proxies.
2.10. Voting of Shares. Each outstanding share shall be entitled to one
vote on 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.
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2.11. Notice of Shareholder Business and Nomination of Directors.
(a) Annual Meetings.
(i) Nominations of persons for election to the Board of
Directors 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
(1) is a shareholder of record at the time of giving of notice
provided for in this Section 2.11, (2) is entitled to vote with
respect to such nomination or other business at the meeting under the
articles of incorporation and (3) complies with the notice procedures
set forth in this Section 2.11.
(ii) For nominations or other business to be properly
brought before an Annual Meeting by a shareholder pursuant to Section
2.11(a)(i)(C), the shareholder must have given timely notice thereof
in writing to the Secretary. To be timely, a shareholder's notice
shall be received by the Secretary at the principal offices of the
corporation not less than forty-five days nor more than seventy days
prior to the first annual anniversary of the date set forth in the
corporation's proxy statement for the immediately preceding Annual
Meeting as the date on which the corporation first mailed or intended
to mail definitive proxy materials for the immediately preceding
Annual Meeting (the "Anniversary Date"); provided, however, that if
the date for which the Annual Meeting is called more than thirty days
before or more than thirty days after the first annual anniversary of
the immediately preceding Annual Meeting, then notice by the
shareholder to be timely must be so delivered not earlier than the
close of business on the 100th day prior to the date of such Annual
Meeting and not later than the later of (A) the 75th day prior to the
date of such Annual Meeting or (B) the 10th day following the day on
which public announcement of the date of such Annual Meeting is first
made. In no event shall the announcement of an adjournment of an
Annual Meeting commence a new time period for the giving of a
shareholder notice as described above. Such shareholder's notice shall
be signed by the shareholder of record who intends to make the
nomination or introduce the other business and by the beneficial owner
or owners, if any, on whose behalf the shareholder is acting, shall
bear the date of signature of such shareholder and any such beneficial
owner and shall set forth: (I) the name and address of such
shareholder (as they appear on the corporation's books) and any such
beneficial owner; (II) the class and number of shares of the
corporation that are owned of record and/or beneficially by such
shareholder and any such beneficial owner; (III) a representation that
such shareholder is a holder of record of shares of the corporation
entitled to vote under the articles of incorporation at such meeting
with respect to such nomination or other business and intends to
appear in person or by proxy at the meeting to make such nomination or
introduce such other business; (IV) in the case of any proposed
nomination for election or re-election as a director, (1) the name and
residence address of the person or persons to be nominated, (2) a
description of all arrangements or understandings between such
shareholder and any such beneficial owner 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 and any such
beneficial owner, (3) such other information regarding each nominee
proposed by such shareholder and any such beneficial owner 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 (4) 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; (V) in the case of any proposed removal of
a director, (1) the names of
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the directors to be removed and (2) the reasons of such shareholder
and any such beneficial owner for asserting that such directors should
be removed; and (VI) in the case of any other business that such
shareholder and any such beneficial owner propose to bring before the
meeting, (1) 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, (2) the reasons
of such shareholder and any such beneficial owner for conducting such
business at the meeting and (3) any material interest in such business
of such shareholder and any such beneficial owner.
(iii) Notwithstanding anything in the second sentence of
Section 2.11(a)(ii) to the contrary, if the number of directors to be
elected to the Board of Directors 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 forty-five days prior to the Anniversary Date, then a
shareholder's notice required by this Section 2.11 shall also be
considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be received by the
Secretary at the principal offices of the corporation not later than
the close of business on the 10th day following the day on which such
public announcement is first made by the corporation.
(b) Special Meetings. Only such business shall be conducted at a
Special Meeting as shall have been described in the notice of meeting sent to
shareholders pursuant to Section 2.04. 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 with respect to such nominations at the meeting under the
articles of incorporation and (C) complies with the notice procedures set forth
in this Section 2.11. Any shareholder permitted to nominate persons for election
to the Board of Directors pursuant to clause (ii) of the preceding sentence who
desires 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 at
the principal offices of the corporation not earlier than ninety days prior to
such Special Meeting and not later than the close of business on the later of
(I) the 60th day prior to such Special Meeting and (II) 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 and by the beneficial owner or owners, if
any, on whose behalf the shareholder is acting, shall bear the date of signature
of such shareholder and any such beneficial owner and shall set forth: (1) the
name and address of such shareholder (as they appear in the corporation's books)
and any such beneficial owner; (2) the class and number of shares of the
corporation that are owned of record and/or beneficially by such shareholder and
any such beneficial owner; (3) 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; (4) the name and residence address of the
person or persons to be nominated; (5) a description of all arrangements or
understandings between such shareholder and any such beneficial owner 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 and any such
beneficial owner; (6) such other information regarding each nominee proposed by
such shareholder and any such beneficial owner 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 (7) 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.
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(c) General.
(i) Only persons who are nominated in accordance with the
procedures set forth in this Section 2.11 shall be eligible to be
elected as directors at an Annual Meeting or Special Meeting. 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 2.11. 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
2.11 and, if any proposed nomination or business is not in compliance
with this Section 2.11, to declare that such defective proposal shall
be disregarded.
(ii) For purposes of this Section 2.11, "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 2.11, 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 2.11.
Nothing in this Section 2.11 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
2.12 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
other corporation or any other officers appointed by such president. An
appointment of 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 the contrary, given in
writing by the Board of Directors of such other company to the Secretary.
(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 such person, either in person or by
proxy, without a transfer of such shares into such person's name, provided that
there is filed with the Secretary before or at the time of the meeting proper
evidence of such person's incumbency and the number of shares held. Shares held
by a fiduciary may be voted by the person acting in such capacity, 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
the contrary, given in writing to the Secretary.
(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
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corporation is held by this corporation shall be voted at any Annual Meeting or
Special 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,
shall be entitled to vote and shall be counted in determining the total number
of outstanding shares 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 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, has actual knowledge that such shareholder has
been adjudicated an incompetent or spendthrift or has actual knowledge of filing
of judicial proceedings for appointment of a guardian.
(g) Joint Tenants. Shares registered in the names of two or more
individuals who are named in the registration as joint tenants may be voted in
person or by proxy signed by any one or more of such individuals if either (i)
no other such individual or his or her legal representative is present at the
meeting and claims the right to participate in the voting of such shares or
prior to the vote filed with the Secretary 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 has no actual 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 is required to
be given to any shareholder of the corporation under the articles of
incorporation, these by-laws or any provision of law, a waiver thereof in
writing, signed at any time, whether before or after the time of the meeting,
and delivered to the Secretary for inclusion in the corporation's records, 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 date, time and place of the meeting. 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. Unanimous Consent without Meeting. Any action required or permitted
by the articles of incorporation, these by-laws or any provision of law to be
taken at an Annual Meeting or Special Meeting may be taken without a meeting if
a consent in writing, setting forth the action so taken, shall be signed by all
of the shareholders entitled to vote with respect to the subject matter thereof
and delivered to the Secretary for inclusion in the corporation's records.
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 fixed from time to
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time exclusively by the Board of Directors pursuant to a resolution adopted by
the affirmative vote of a majority of the total number of directors that the
corporation would have if there were no vacancies.
3.02. Tenure and Qualifications. Each director shall hold office until the
next Annual Meeting, 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 Special Meeting called for
that purpose. A director may resign at any time by filing his or her written
resignation with the Secretary, 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.
3.03. Regular Meetings. A regular meeting of the Board of Directors shall
be held without other notice than this by-law immediately after an Annual
Meeting, and each adjourned session thereof. The place of such regular meeting
shall be the same as the place of the Annual Meeting that precedes it or such
other suitable place as may be announced at the 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 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 meetings 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 five days if by mail and not less than forty-eight hours if by
telegram, telephone, teletype, telegraph, facsimile or other form of wire or
wireless communication, or personal delivery. 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 these 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 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 3.01 shall constitute a quorum
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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, 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 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.
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 two
directors and shall have those of the powers of the Board
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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 these by-laws and the Wisconsin Business Corporation Law. 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 these
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.
ARTICLE IV. OFFICERS
4.01. Number. The principal officers of the corporation shall be a
President, any number of Vice Presidents, 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 Chairman of the Board or the President. Any two or more
offices may be held by the same person, except the offices of President and
Secretary and the offices of President and Vice President.
4.02. Election and Term of Office. The officers 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. If the election of officers shall not be held at such meeting, such
election shall be held as soon thereafter as may be convenient. Each officer
shall hold office until his or her successor shall have been duly elected or
until his or her prior death, resignation or removal.
4.03. 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.
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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. 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.
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, in which event he or she shall
have responsibility for all financial matters which affect 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 or her by the President or by
the Board of Directors. The execution of any instrument of the corporation by
any Vice President shall be conclusive evidence, as to third parties, of his or
her authority to act in the stead of the President.
4.08. 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 or her by the President or by the Board
of Directors.
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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, the Chairman of the Board or the President may from time to time
authorize. The Assistant Secretaries may sign with the President or a Vice
President certificates for shares of the corporation the issuance of which shall
have been authorized by a resolution of the Board of Directors. The Assistant
Treasurers shall respectively, if required by the Board of Directors, give bonds
for the faithful discharge of their duties in such sums and with such sureties
as the Board of Directors shall determine. The Assistant Secretaries and
Assistant Treasurers, in general, shall perform such duties and have such
authority as shall from time to time be delegated or assigned to them by the
Secretary or the Treasurer, respectively, or by the President or the Board of
Directors.
4.11. Other Assistants and Acting Officers. The Board of Directors, the
Chairman of the Board and the President each 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 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, the Chairman of the Board or the
President.
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
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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) 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.
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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.
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 Certain Definitions. The following capitalized terms (including any
plural forms thereof) used in this Article VII shall be defined as follows:
(a) "Affiliate" shall include, without limitation, any corporation,
partnership, limited liability company, joint venture, employee benefit plan,
trust or other enterprise, whether domestic or foreign, 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
7.04.
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(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
7.04, to constitute conduct as a result of which the Director or Officer is not
entitled to mandatory indemnification under the Statute.
(e) "Corporation," as used herein and as defined in the Statute and
incorporated by reference into the definitions of certain other capitalized
terms used herein, shall mean this corporation, including, without limitation,
any successor corporation or entity to this corporation by way of merger,
consolidation or acquisition of all or substantially all of the capital stock or
assets of this corporation.
(f) "Director or Officer" shall have the meaning set forth in the
Statute; provided, that, for purposes of this Article VII, (i) "Director or
Officer" shall include a director or officer of a Subsidiary (whether or not
otherwise serving as a Director of Officer), (ii) the term "employee benefit
plan" as used in the Statute shall include an employee benefit plan sponsored,
maintained or contributed to by a Subsidiary and (iii) it shall be conclusively
presumed that any Director or Officer serving as a director, officer, partner,
member, trustee, member of any governing or decision-making committee, manager,
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) "Expenses" shall mean and include fees, costs, charges,
disbursements, attorney fees and any other expenses incurred in connection with
a Proceeding.
(i) "Liability" shall mean and include the obligation to pay a
judgment, settlement, penalty, assessment, forfeiture or fine, including an
excise tax assessed with respect to an employee benefit plan, and reasonable
Expenses.
(j) "Party" shall have the meaning set forth in the Statute; provided,
that, for purposes of this Article VII, the term "Party" shall also include any
Director or Officer or employee of the Corporation 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.
(k) "Proceeding" shall have the meaning set forth in the Statute;
provided, that, in accordance with the Statute and for purposes of this Article
VII, the term "Proceeding" shall also include all Proceedings (i) brought under
(in whole or in part) the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, their respective state counterparts, and/or
any rule or regulation promulgated under any of the foregoing; (ii) brought
before an Authority or otherwise to enforce rights hereunder; (iii) any appeal
from a Proceeding; and (iv) any Proceeding in which the Director or Officer is a
plaintiff or petitioner because he or she is a Director or Officer; provided,
however, that any such Proceeding under this subsection (iv) must be authorized
by a majority vote of a Disinterested Quorum.
(l) "Statute" shall mean the provisions of the Wisconsin Business
Corporation Law, Chapter 180 of the Wisconsin Statutes, relating to
indemnification and insurance for Directors, Officers
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and others, which are contained in Wisconsin Statutes Sections 180.0850 through
180.0859 as of May 16, 2003, as the same shall then be in effect, including any
amendments thereto after May 16, 2003, 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.
(m) "Subsidiary" shall mean any direct or indirect subsidiary of the
Corporation as determined for financial reporting purposes, whether domestic or
foreign.
7.02 Mandatory Indemnification of Directors and Officers. 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.
7.03 Procedural Requirements.
(a) A Director or Officer who seeks indemnification under Section 7.02
shall make a written request therefor to the Corporation. Subject to Section
7.03(b), within sixty 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
7.05).
(b) No indemnification shall be required to be paid by the Corporation
pursuant to Section 7.02 if, within such sixty-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.
(c) In either case of nonpayment pursuant to Section 7.03(b), the
Board shall immediately authorize by resolution that an Authority, as provided
in Section 7.04, 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 sixty-day
period and/or (ii) if indemnification of the requested amount of Liabilities is
paid by the Corporation, then it shall be conclusively presumed for all purposes
that a Disinterested Quorum has affirmatively determined that the Director or
Officer did not engage in misconduct constituting a Breach of Duty and, in the
case of subsection (i) above (but not subsection (ii)), indemnification by the
Corporation of the requested amount of Liabilities shall be paid to the Director
or Officer immediately.
7.04 Determination of Indemnification.
(a) If the Board authorizes an Authority to determine a Director's or
Officer's right to indemnification pursuant to Section 7.03, 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;
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(ii) A panel of three arbitrators selected from the panels
of arbitrators of the American Arbitration Association in 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 (other than this Article
VII), 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 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.
(c) The Authority shall make its determination within sixty 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 7.05), including
interest thereon at a reasonable rate, as determined by the Authority, within
ten days of receipt of the Authority's opinion; provided, that, if it is
determined by the Authority that a Director or Officer is entitled to
indemnification against Liabilities' incurred in connection with some claims,
issues or matters, but not as to other claims, issues or matters, involved in
the subject Proceeding, the Corporation shall be required to pay (as set forth
above) only the amount of such requested Liabilities as the Authority shall deem
appropriate in light of all of the circumstances of such Proceeding.
(e) The determination by the Authority that indemnification is
required hereunder shall be binding upon the Corporation regardless of any prior
determination that the Director or Officer engaged in a Breach of Duty.
(f) All Expenses incurred in the determination process under this
Section 7.04 by either the Corporation or the Director or Officer, including,
without limitation, all Expenses of the selected Authority, shall be paid by the
Corporation.
7.05 Mandatory Allowance of Expenses.
(a) The Corporation shall pay or reimburse from time to time or at any
time, within ten 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 7.05 if it is ultimately
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determined by an Authority that he or she is not entitled to be
indemnified by the Corporation for such Expenses pursuant to Section
7.04.
(b) If the Director or Officer must repay any previously advanced
Expenses pursuant to this Section 7.05, such Director or Officer shall not be
required to pay interest on such amounts.
7.06 Indemnification and Allowance of Expenses of Certain Others.
(a) The Board may, in its sole and absolute discretion as it deems
appropriate, pursuant to a majority vote thereof, indemnify a director or
officer of an Affiliate (who is not otherwise serving as a Director or Officer)
against all Liabilities, and shall advance the reasonable Expenses, incurred by
such director or officer in a Proceeding to the same extent hereunder as if such
director or officer incurred such Liabilities because he or she was a Director
or Officer, if such director or officer is a Party thereto because he or she is
or was a director or officer of the Affiliate.
(b) The Corporation shall indemnify an employee who is not a Director
or Officer, to the extent he or she has been successful on the merits or
otherwise in defense of a Proceeding, for all 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 7.06(b)) 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.
7.07 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 VII.
7.08 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 7.04(a)).
7.09 Severability. If any provision of this Article VII shall be deemed
invalid or inoperative, or if a court of competent jurisdiction determines that
any of the provisions of this Article VII contravene public policy, this Article
VII shall be construed so that the remaining provisions shall not be affected,
but shall remain in full force and effect, and any such provisions which are
invalid or inoperative or which contravene public policy shall be deemed,
without further action or deed by or on behalf of the Corporation, to be
modified, amended and/or limited, but only to the extent necessary to render the
same valid and enforceable; it being understood that it is the Corporation's
intention to provide the Directors and Officers with the broadest possible
protection against personal liability allowable under the Statute.
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7.10 Nonexclusivity of Article VII. The rights of a Director, Officer or
employee (or any other person) granted under this Article VII shall not be
deemed exclusive of any other rights to indemnification against Liabilities or
allowance of Expenses which the Director, Officer or employee (or such other
person) may be entitled to under any written agreement, Board resolution, vote
of shareholders of the Corporation or otherwise, including, without limitation,
under the Statute. Nothing contained in this Article VII shall be deemed to
limit the Corporation's obligations to indemnify against Liabilities or allow
Expenses to a Director, Officer or employee under the Statute.
7.11 Contractual Nature of Article VII; Changes to Rights. This Article VII
shall be deemed to be a contract between the Corporation and each Director,
Officer and employee of the Corporation and any repeal or other limitation of
this Article VII 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 VII with regard to acts, omissions or events arising prior to such
repeal or limitation. If the Statute is amended to permit or require the
Corporation to provide broader indemnification rights than this Article VII
permits or requires, then this Article VII shall be automatically amended and
deemed to incorporate such broader indemnification rights.
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 and entitled to vote
thereon under the articles of incorporation at any Annual Meeting or Special
Meeting 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.
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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