BYLAWS
OF
JOHNSON WORLDWIDE ASSOCIATES, INC.
(A Wisconsin Corporation)
(As amended through January 27, 1994)
ARTICLE ONE
Offices
1.01. Principal and Business Office. The corporation may have
such principal and other business offices, either within or without the
State of Wisconsin, as the Board of Directors may from time to time
determine 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 TWO
Meetings of the Shareholders
2.01. Annual Meetings. An annual meeting of the shareholders
shall be held at such time and date as may be fixed by or under the
authority of the Board of Directors and as designated in the notice
thereof, for the purpose of electing directors and for the transaction of
such other business as may come before the meeting.
2.02. Special Meetings.
(a) Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute, may be called by the
Chairman of the Board, if any, the President or the Board of Directors of
the corporation. The Chairman of the Board, if any, or the President
shall call a special meeting of the shareholders upon demand, in
accordance with this Section 2.02, of the holders of at least ten percent
(10%) of all of the votes entitled to be cast on any issue proposed to be
considered at the proposed special meeting.
(b) In order that the corporation may determine the
shareholders entitled to demand a special meeting, the Board of Directors
may fix a record date to determine the shareholders entitled to make such
a demand (the "Demand Record Date"). The Demand Record Date shall not
precede the date upon which the resolution fixing the Demand Record Date
is adopted by the Board of Directors and shall not be more than 10 days
after the date upon which the resolution fixing the Demand Record Date is
adopted by the Board of Directors. Any shareholder of record seeking to
have shareholders demand a special meeting shall, by sending written
notice to the Secretary of the corporation by hand or by certified or
registered mail, return receipt requested, request the Board of Directors
to fix a Demand Record Date. The Board of Directors shall promptly, but
in all events within 10 days after the date on which a valid request to
fix a Demand Record Date is received, adopt a resolution fixing the Demand
Record Date and shall make a public announcement of such Demand Record
Date. If no Demand Record Date has been fixed by the Board of Directors
within 10 days after the date on which such request is received by the
Secretary, the Demand Record Date shall be the 10th day after the first
date on which a valid written request to set a Demand Record Date is
received by the Secretary. To be valid, such written request shall set
forth the purpose or purposes for which the special meeting is to be held,
shall be signed by one or more shareholders of record (or their duly
authorized proxies or other representatives), shall bear the date of
signature of each such shareholder (or proxy or other representative) and
shall set forth all information about each such shareholder and about the
beneficial owner or owners, if any, on whose behalf the request is made
that would be required to be set forth in a shareholder's notice described
in paragraph (a) (ii) of Section 2.12 of these bylaws.
(c) In order for a shareholder or shareholders to demand a
special meeting, a written demand or demands for a special meeting by the
holders of record as of the Demand Record Date of shares representing at
least 10% of all the votes entitled to be cast on any issue proposed to be
considered at the special meeting must be delivered to the corporation.
To be valid, each written demand by a shareholder for a special meeting
shall set forth the specific purpose or purposes for which the special
meeting is to be held (which purpose or purposes shall be limited to the
purpose or purposes set forth in the written request to set a Demand
Record Date received by the corporation pursuant to paragraph (b) of this
Section 2.02), shall be signed by one or more persons who as of the Demand
Record Date are shareholders of record (or their duly authorized proxies
or other representatives), shall bear the date of signature of each such
shareholder (or proxy or other representative), and shall set forth the
name and address, as they appear in the corporation's books, of each
shareholder signing such demand and the class and number of shares of the
corporation which are owned of record and beneficially by each such
shareholder, shall be sent to the Secretary by hand or by certified or
registered mail, return receipt requested, and shall be received by the
Secretary within 70 days after the Demand Record Date.
(d) The corporation shall not be required to call a special
meeting upon shareholder demand unless, in addition to the documents
required by paragraph (c) of this Section 2.02, the Secretary receives a
written agreement signed by each Soliciting Shareholder (as defined
below), pursuant to which each Soliciting Shareholder, jointly and
severally, agrees to pay the corporation's costs of holding the special
meeting, including the costs of preparing and mailing proxy materials for
the corporation's own solicitation, provided that if each of the
resolutions introduced by any Soliciting Shareholder at such meeting is
adopted, and each of the individuals nominated by or on behalf of any
Soliciting Shareholder for election as a director at such meeting is
elected, then the Soliciting Shareholders shall not be required to pay
such costs. For purposes of this paragraph (d), the following terms shall
have the meanings set forth below:
(i) "Affiliate" of any Person (as defined herein) shall
mean any Person controlling, controlled by or under common control
with such first Person.
(ii) "Participant" shall have the meaning assigned to such
term in Rule 14a-11 promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act").
(iii) "Person" shall mean any individual, firm, corporation,
partnership, joint venture, association, trust, unincorporated
organization or other entity.
(iv) "Proxy" shall have the meaning assigned to such term
in Rule 14a-1 promulgated under the Exchange Act.
(v) "Solicitation" shall have the meaning assigned to such
term in Rule 14a-11 promulgated under the Exchange Act.
(vi) "Soliciting Shareholder" shall mean, with respect to
any Special Meeting demanded by a shareholder or shareholders, any of
the following Persons:
(A) if the number of shareholders signing the demand
or demands of meeting delivered to the corporation pursuant
to paragraph (c) of this Section 2.02 is 10 or fewer, each
shareholder signing any such demand;
(B) if the number of shareholders signing the demand
or demands of meeting delivered to the corporation pursuant
to paragraph (c) of this Section 2.02 is more than 10, each
Person who either (I) was a Participant in any Solicitation
of such demand or demands or (II) at the time of the
delivery to the corporation of the documents described in
paragraph (c) of this Section 2.02 had engaged or intended
to engage in any Solicitation of Proxies for use at such
Special Meeting (other than a Solicitation of Proxies on
behalf of the corporation); or
(C) any Affiliate of a Soliciting Shareholder, if a
majority of the directors then in office determine,
reasonably and in good faith, that such Affiliate should be
required to sign the written notice described in paragraph
(c) of this Section 2.02 and/or the written agreement
described in this paragraph (d) in order to prevent the
purposes of this Section 2.02 from being evaded.
(e) Except as provided in the following sentence, any special
meeting shall be held at such hour and day as may be designated by
whichever of the Chairman of the Board, if any, the President or the Board
of Directors shall have called such meeting. In the case of any special
meeting called by the Chairman of the Board, if any, or the President upon
the demand of shareholders (a "Demand Special Meeting"), such meeting
shall be held at such hour and day as may be designated by the Board of
Directors; provided, however, that the date of any Demand Special Meeting
shall be not more than 70 days after the record date for the meeting (as
established in Section 2.05 hereof); and provided further that in the
event that the directors then in office fail to designate an hour and date
for a Demand Special Meeting within 10 days after the date that valid
written demands for such meeting by the holders of record as of the Demand
Record Date of shares representing at least 10% of all the votes entitled
to be cast on each issue proposed to be considered at the special meeting
are delivered to the corporation (the "Delivery Date"), then such meeting
shall be held at 2:00 P.M. local time on the 100th day after the Delivery
Date or, if such 100th day is not a Business Day (as defined below), on
the first preceding Business Day. In fixing a meeting date for any
special meeting, the Chairman of the Board, if any, the President or the
Board of Directors may consider such factors as he or it deems relevant
within the good faith exercise of his or its business judgment, including,
without limitation, the nature of the action proposed to be taken, the
facts and circumstances surrounding any demand for such meeting, and any
plan of the Board of Directors to call an annual meeting or a special
meeting for the conduct of related business.
(f) The corporation may engage 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) 5 Business
Days following receipt by the Secretary of such purported demand and (ii)
such date as the independent inspectors certify to the corporation that
the valid demands received by the Secretary represent at least 10% of all
the votes entitled to be cast on each issue proposed to be considered at
the special meeting. Nothing contained in this paragraph (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 5 Business Day period, or to take any other
action (including, without limitation, the commencement, prosecution or
defense of any litigation with respect thereto).
(g) For purposes of these bylaws, "Business Day" shall mean any
day other than a Saturday, a Sunday or a day on which banking institutions
in the State of Wisconsin are authorized or obligated by law or executive
order to close.
2.03. Place of Meeting. The Board of Directors, the Chairman
of the Board, if any, or the President may designate any place, either
within or without the State of Wisconsin, as the place of meeting for any
annual or special meeting of the shareholders. If no designation is
made, the place of meeting shall be the principal business office of the
corporation in the State of Wisconsin. Any meeting may be adjourned to
reconvene at any place designated by the Board of Directors, the Chairman
of the Board, if any, or the President.
2.04. Notice. Written or printed notice of every annual or
special meeting of the shareholders, stating the place, date and time of
such meeting shall be delivered not less than ten nor more than sixty days
before the date of the meeting (unless a different period is required by
the Wisconsin Business Corporation Law or the Articles of Incorporation),
either personally or by mail, by or at the direction of the Board of
Directors, the Chairman of the Board, if any, the President or Secretary,
to each shareholder of record entitled to vote at such meeting and to
other shareholders as may be required by the Wisconsin Business
Corporation Law. In the event of any Demand Special Meeting, such notice
of meeting shall be sent not more than 30 days after the Delivery Date.
Notices which are mailed shall be deemed to be delivered when deposited in
the United States mail addressed to the shareholder at his or her address
as it appears on the stock record books of the corporation, with postage
thereon prepaid. Unless otherwise required by the Wisconsin Business
Corporation Law or the articles of incorporation of the corporation, a
notice of an annual meeting need not include a description of the purpose
for which the meeting is called. In the case of any special meeting, (a)
the notice of meeting shall describe any business that the Board of
Directors shall have theretofore determined to bring before the meeting
and (b) in the case of a Demand Special Meeting, the notice of meeting (i)
shall describe any business set forth in the statement of purpose of the
demands received by the corporation in accordance with Section 2.02 of
these bylaws and (ii) shall contain all of the information required in the
notice received by the corporation in accordance with Section 2.12(b) of
these bylaws. If an annual or special meeting of the shareholders is
adjourned to a different place, date or time, the corporation shall not be
required to give notice of the new place, date or time if the new place,
date or time 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. Fixing of Record Date. 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 any annual or special meeting of the shareholders as the
record date for the purpose of determining shareholders entitled to notice
of and to vote at such meeting. In the case of any Demand Special
Meeting, (i) the meeting record date shall be not later than the 30th day
after the Delivery Date and (ii) if the Board of Directors fails to fix
the meeting record date within 30 days after the Delivery Date, then the
close of business on such 30th day shall be the meeting record date. If
no record date is fixed by the Board of Directors or by the Wisconsin
Business Corporation Law for the determination of the shareholders
entitled to notice of and to vote at a meeting of shareholders, the record
date shall be the close of business on the day before the first notice is
given to shareholders. The Board of Directors may also fix in advance a
date as the record date for the purpose of determining shareholders
entitled to demand a special meeting as contemplated by Section 2.02 of
these bylaws, shareholders to take any other action or shareholders for
any other purposes. 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 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 as
contemplated in Section 2.02 of these bylaws, the record date shall be the
date that the first shareholder signs the demand. The record date for
determining shareholders entitled to a distribution (other than a
distribution involving a purchase, redemption or other acquisition of the
corporation's shares) or a share dividend is the date on which the Board
of Directors authorized the distribution or share dividend, as the case
may be, unless the Board of Directors fixes a different record date.
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 the 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. Shareholder Lists. After a record date for a special or
annual meeting of the 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 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 this Section
2.06. The corporation shall make the shareholders' list available at the
meeting and any shareholder or his or her agent or attorney may inspect
the list at any time during the meeting or any adjournment thereof.
Refusal or failure to prepare or make available the shareholders' list
shall not affect the validity of any action taken at a meeting of the
shareholders.
2.07. Quorum and Voting Requirements; Postponements;
Adjournments.
(a) Shares entitled to vote as a separate voting group may take
action on a matter at a meeting only if a quorum of those shares exists
with respect to that matter. If at any time the corporation has only one
class of common stock outstanding, such class shall constitute a separate
voting group for purposes of this Section 2.07. Except as otherwise
provided in the Articles of Incorporation, any bylaw adopted under
authority granted in the Articles of Incorporation or by 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 purposes
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 within the voting group opposing the action, unless the
Articles of Incorporation, any bylaw adopted under authority granted in
the Articles of Incorporation or the Wisconsin Business Corporation Law
requires a greater number of affirmative votes. Unless otherwise provided
in the Articles of Incorporation, directors shall be elected by a
plurality of the votes cast within the voting group entitled to vote in
the election of such directors at a meeting at which a quorum is present.
For purposes of this Section 2.08, "plurality" means that the individuals
who receive the largest number of votes cast, within the voting group
entitled to vote in the election of such directors, are elected as
directors up to the maximum number of directors to be chosen at the
meeting by such voting group.
(b) The Board of Directors acting by resolution may postpone
and reschedule any previously scheduled annual meeting or special meeting;
provided, however, that a Demand Special Meeting shall not be postponed
beyond the 100th day following the Delivery Date. Any annual meeting or
special meeting may be adjourned from time to time, whether or not there
is a quorum, (i) at any time, upon a resolution of shareholders if the
votes cast in favor of such resolution by the holders of shares of each
voting group entitled to vote on any matter theretofore properly brought
before the meeting exceed the number of votes cast against such resolution
by the holders of shares of each such voting group or (ii) at any time
prior to the transaction of any business at such meeting, by the Chairman
of the Board or the President or pursuant to a resolution of the Board of
Directors. No notice of the time and place of adjourned meetings need be
given except as required by the Wisconsin Business Corporation Law. At
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, provided that no business shall be
transacted at such adjourned meeting on which any class of stock is
entitled to be voted which class shall not have been permitted to
participate in the vote to adjourn the meeting.
2.08. Proxies. At all meetings of the shareholders, a
shareholder entitled to vote may vote either in person or by proxy. A
shareholder may appoint a proxy to vote or otherwise act for the
shareholder by signing an appointment form, either personally or by his or
her attorney-in-fact. An appointment of a proxy is effective when
received by the Secretary or other officer or agent of the corporation
authorized to tabulate votes. An appointment is valid for eleven months
from the date of its signing unless a different period is expressly
provided in the appointment form. Unless otherwise conspicuously stated
on the appointment form, a proxy may be revoked at any time before it is
voted, either by written notice delivered to the Secretary or other
officer or agent of the corporation authorized to tabulate votes or by
oral notice given by the shareholder to the presiding person during the
meeting. The Board of Directors shall have the power and authority to
make rules establishing presumptions as to the validity and sufficiency of
proxies.
2.09. Conduct of Meetings. The Chairman of the Board, if any,
and in his absence the President, shall call the meeting of the
shareholders to order, shall act as chairman of the meeting and shall
otherwise preside at the meeting. In the absence of the Chairman of the
Board, if any, and the President, a person designated by the Board of
Directors shall preside. The person presiding at any meeting of the
shareholders shall have the power to determine (i) whether and to what
extent proxies presented at the meeting shall be recognized as valid, (ii)
the procedure for tabulating votes at such meeting, (iii) procedures for
the conduct of such meeting, and (iv) any questions which may be raised at
such meeting. The person presiding at any meeting of the shareholders
shall have the right to delegate any of the powers contemplated by this
Section 2.09 to such other person or persons as the person presiding deems
desirable. The Secretary of the corporation shall act as secretary of all
meetings of shareholders, but, in the absence of the Secretary, the
presiding person may appoint any other person to act as secretary of the
meeting.
2.10. Acceptance of Instruments Showing Shareholder Action. If
the name signed on a vote, consent, waiver or proxy appointment
corresponds to the name of a shareholder, the corporation, if acting in
good faith, may accept the vote, consent, waiver or proxy appointment and
give it effect as the act of a shareholder. If the name signed on a vote,
consent, waiver or proxy appointment does not correspond to the name of a
shareholder, the corporation, if acting in good faith, may accept the
vote, consent, waiver or proxy appointment and give it effect as the act
of the shareholder if any of the following apply:
(a) The shareholder is an entity and the name signed purports
to be that of an officer or agent of the entity.
(b) The name purports to be that of a personal representative,
administrator, executor, guardian or conservator representing the
shareholder and, if the corporation requests, evidence of fiduciary status
acceptable to the corporation is presented with respect to the vote,
consent, waiver or proxy appointment.
(c) The name signed purports to be that of a receiver or
trustee in bankruptcy of the shareholder and, if the corporation requests,
evidence of this status acceptable to the corporation is presented with
respect to the vote, consent, waiver or proxy appointment.
(d) The name signed purports to be that of a pledgee,
beneficial owner, or attorney-in-fact of the shareholder and, if the
corporation requests, evidence acceptable to the corporation of the
signatory's authority to sign for the shareholder is presented with
respect to the vote, consent, waiver or proxy appointment.
(e) Two or more persons are the shareholders as co-tenants or
fiduciaries and the name signed purports to be the name of at least one of
the co-owners and the person signing appears to be acting on behalf of all
co-owners.
The corporation may reject a vote, consent, waiver or proxy appointment if
the Secretary or other officer or agent of the corporation who is
authorized to tabulate votes, acting in good faith, has reasonable basis
for doubt about the validity of the signature on it or about the
signatory's authority to sign for the shareholder.
2.11. Waiver of Notice by Shareholders. A shareholder may
waive any notice required by the Wisconsin Business Corporation Law, the
Articles of Incorporation or these bylaws before or after the date and
time stated in the notice. The waiver shall be in writing and signed by
the shareholder entitled to the notice, contain the same information that
would have been required in the notice under applicable provisions of the
Wisconsin Business Corporation Law (except that the time and place of the
meeting need not be stated) and be delivered to the corporation for
inclusion in the corporate records. A shareholder's attendance at a
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 on arrival objects
to holding the meeting or transaction 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.
2.12. Notice of Shareholder Business and Nomination of
Directors.
(a) Annual Meetings.
(i) Nominations of persons for election to the Board of
Directors of the corporation and the proposal of business to be
considered by the shareholders may be made at an annual meeting (A)
pursuant to the corporation's notice of meeting, (B) by or at the
direction of the Board of Directors or (C) by any shareholder of the
corporation who is a shareholder of record at the time of giving of
notice provided for in this by-law and who is entitled to vote at the
meeting and complies with the notice procedures set forth in this
Section 2.12.
(ii) For nominations or other business to be properly
brought before an annual meeting by a shareholder pursuant to clause
(C) of paragraph (a)(i) of this Section 2.12, the shareholder must
have given timely notice thereof in writing to the Secretary of the
corporation. To be timely, a shareholder's notice shall be received
by the Secretary of the corporation at the principal offices of the
corporation not earlier than the 90th day prior to the date of such
annual meeting and not later than the close of business on the later
of (x) the 60th day prior to such annual meeting and (y) the 10th day
following the day on which public announcement of the date of such
meeting is first made. Such shareholder's notice shall be signed by
the shareholder of record who intends to make the nomination or
introduce the other business (or his duly authorized proxy or other
representative), shall bear the date of signature of such shareholder
(or proxy or other representative) and shall set forth: (A) the name
and address, as they appear on this corporation's books, of such
shareholder and the beneficial owner or owners, if any, on whose
behalf the nomination or proposal is made; (B) the class and number
of shares of the corporation which are beneficially owned by such
shareholder or beneficial owner or owners; (C) a representation that
such shareholder is a holder of record of shares of the corporation
entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to make the nomination or introduce the other
business specified in the notice; (D) in the case of any proposed
nomination for election or re-election as a director, (I) the name
and residence address of the person or persons to be nominated, (II)
a description of all arrangements or understandings between such
shareholder or beneficial owner or owners and each nominee and any
other person or persons (naming such person or persons) pursuant to
which the nomination is to be made by such shareholder, (III) such
other information regarding each nominee proposed by such shareholder
as would be required to be disclosed in solicitations of proxies for
elections of directors, or would be otherwise required to be
disclosed, in each case pursuant to Regulation 14A under the Exchange
Act, including any information that would be required to be included
in a proxy statement filed pursuant to Regulation 14A had the nominee
been nominated by the Board of Directors and (IV) the written consent
of each nominee to be named in a proxy statement and to serve as a
director of the corporation if so elected; and (E) in the case of any
other business that such shareholder proposes to bring before the
meeting, (I) a brief description of the business desired to be
brought before the meeting and, if such business includes a proposal
to amend these bylaws, the language of the proposed amendment, (II)
such shareholder's and beneficial owner's or owners' reasons for
conducting such business at the meeting and (III) any material
interest in such business of such shareholder and beneficial owner or
owners.
(iii) Notwithstanding anything in the second sentence of
paragraph (a)(ii) of this Section 2.12 to the contrary, in the event
that the number of directors to be elected to the Board of Directors
of the corporation is increased and there is no public announcement
naming all of the nominees for director or specifying the size of the
increased Board of Directors made by the corporation at least 60 days
prior to the annual meeting, a shareholder's notice required by this
Section 2.12 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 of these bylaws.
Nominations of persons for election to the Board of Directors may be made
at a special meeting at which directors are to be elected pursuant to such
notice of meeting (i) by or at the direction of the Board of Directors or
(ii) by any shareholder of the corporation who (A) is a shareholder of
record at the time of giving of such notice of meeting, (B) is entitled to
vote at the meeting and (C) complies with the notice procedures set forth
in this Section 2.12. Any shareholder desiring to nominate persons for
election to the Board of Directors at such a special meeting shall cause a
written notice to be received by the Secretary of the corporation at the
principal offices of the corporation not earlier than 90 days prior to
such special meeting and not later than the close of business on the later
of (x) the 60th day prior to such special meeting and (y) the 10th day
following the day on which public announcement is first made of the date
of such special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. Such written notice shall be
signed by the shareholder of record who intends to make the nomination (or
his duly authorized proxy or other representative), shall bear the date of
signature of such shareholder (or proxy or other representative) and shall
set forth: (A) the name and address, as they appear on the corporation's
books, of such shareholder and the beneficial owner or owners, if any, on
whose behalf the nomination is made; (B) the class and number of shares of
the corporation which are beneficially owned by such shareholder or
beneficial owner or owners; (C) a representation that such shareholder is
a holder of record of shares of the corporation entitled to vote at such
meeting and intends to appear in person or by proxy at the meeting to make
the nomination specified in the notice; (D) the name and residence address
of the person or persons to be nominated; (E) a description of all
arrangements or understandings between such shareholder or beneficial
owner or owners and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination is to be made by
such shareholder; (F) such other information regarding each nominee
proposed by such shareholder as would be required to be disclosed in
solicitations of proxies for elections of directors, or would be otherwise
required to be disclosed, in each case pursuant to Regulation 14A under
the Exchange Act, including any information that would be required to be
included in a proxy statement filed pursuant to Regulation 14A had the
nominee been nominated by the Board of Directors; and (G) the written
consent of each nominee to be named in a proxy statement and to serve as a
director of the corporation if so elected.
(c) General.
(i) Only persons who are nominated in accordance with the
procedures set forth in this Section 2.12 shall be eligible to serve
as directors. Only such business shall be conducted at an annual
meeting or special meeting as shall have been brought before such
meeting in accordance with the procedures set forth in this Section
2.12. 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 2.12 and, if any proposed nomination or
business is not in compliance with this Section 2.12, to declare that
such defective proposal shall be disregarded.
(ii) For purposes of this Section 2.12, "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 2.12, 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
2.12. Nothing in this Section 2.12 shall be deemed to limit the
corporation's obligation to include shareholder proposals in its
proxy statement if such inclusion is required by Rule 14a-8 under the
Exchange Act.
ARTICLE THREE
Directors
3.01. General Powers. All corporate powers shall be exercised
by or under the authority of, and the business and affairs of the
corporation shall be managed under the direction of, the corporation's
Board of Directors. In addition to the powers and authorities expressly
conferred upon it by these bylaws, the Board of Directors may do all such
lawful acts and things as are not by the Wisconsin Business Corporation
Law, the Articles of Incorporation or these bylaws directed or required to
be exercised or done by the shareholders.
3.02. Number of Directorship Positions; Chairman of the Board.
(a) Number of Directors. Except as otherwise provided in
paragraph (c) of this Section 3.02, the number of directors of the
corporation shall be six (6).
(b) Board of Directors' Power to Alter the Number of Directors.
The Board of Directors shall have the power (subject to any limitations
prescribed by the Articles of Incorporation) by a resolution adopted by
not less than a majority of all directors serving on the Board of
Directors at the time of such adoption to alter at any time and from time
to time the number of total directorship positions on the Board of
Directors. Upon the adoption of any resolution in the manner provided in
the preceding sentence, the total number of directorship positions on the
Board of Directors shall be equal to the number specified in such
resolution. If the Board of Directors shall determine to reduce the
number of directorship positions, then the term of each incumbent member
shall end upon the election of directors at the next annual meeting of
shareholders of the corporation and the persons elected to fill such
reduced number of directorship positions shall be deemed to be the
successors to all persons who shall have previously held such directorship
positions.
(c) Default. In the event that the corporation is in Default
(as defined in the Articles of Incorporation) in payment of dividends on
the 13% Senior Preferred Stock, $1.00 par value per share, of the
corporation (the "Senior Preferred Stock") or any stock on a parity with
the Senior Preferred Stock as to dividends and the holders of such stock
become entitled to elect two directors pursuant to Article Five, paragraph
A(2)(a)(iii) of the Articles of Incorporation, the number of total
directorship positions on the Board of Directors shall increase by two
effective as of the time that the holders of such stock elect two
directors pursuant to Article Five, paragraph A(2)(a)(iii) of the Articles
of Incorporation. When the Default is "cured" (as defined in the Articles
of Incorporation) or there is no longer any Senior Preferred Stock or any
stock on a parity with the Senior Preferred Stock outstanding, whichever
occurs earlier, the two directors elected pursuant to Article Five,
paragraph A(2)(a)(iii) of the Articles of Incorporation shall resign and
the total number of directorship positions shall be decreased by two
effective as of the date of the last such resignation.
(d) Chairman of the Board. The Board of Directors may elect a
director as the Chairman of the Board. The Chairman of the Board shall,
when present, preside at all meetings of the shareholders and of the Board
of Directors, may call meetings of the shareholders and the Board of
Directors, shall be the Chairman of the Executive Committee, shall advise
and counsel with the President, and shall perform such other duties as set
forth in these bylaws and as determined by the Board of Directors. The
Chairman shall be neither an officer nor an employee of the corporation
(by virtue of his election and service as Chairman of the Board) and may
use the title Chairman or Chairman of the Board interchangeably.
3.03. Tenure and Qualifications. Each director shall hold
office until the next annual meeting of the shareholders and until his
successor shall have been elected and, if necessary, qualified, or until
his prior death, resignation or removal. A director may be removed by the
shareholders only at a meeting of the shareholders called for the purpose
of removing the director, and the meeting notice shall state that the
purpose, or one of the purposes, of the meeting is the removal of the
director. A director may be removed from office with or without cause
only by the voting group entitled to vote in the election of such
director. A director shall be removed if the number of votes cast to
remove the director exceeds the number of votes cast not to remove such
director. A director may resign at any time by delivering written notice
which complies with the Wisconsin Business Corporation Law to the Board of
Directors, to the Chairman of the Board, if any, or to the corporation. A
director's resignation is effective when the notice is delivered unless
the notice specifies a later effective date. Directors need not be
residents of the State of Wisconsin or shareholders of the corporation.
3.04. Regular Meetings. The Board of Directors shall provide,
by resolution, the date, time and place, either within or without the
State of Wisconsin, for the holding of regular meetings of the Board of
Directors without other notice than such resolution.
3.05. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the Chairman of the Board,
if any, the President or any three directors. The Chairman of the Board,
if any, or the President may fix the time, date and place, either within
or without the State of Wisconsin, for holding any special meeting of the
Board of Directors, and if no other place is fixed, the place of the
meeting shall be the principal business office of the corporation in the
State of Wisconsin.
3.06. Notice; Waiver. Notice of each special meeting of the
Board of Directors shall be given (a) by oral notice delivered or
communicated to the director by telephone or in person not less than
twenty-four hours prior to the meeting or (b) by written notice delivered
to the director in person, by telegram, teletype, facsimile or other form
of wire or wireless communication, or by mail or private carrier, to each
director at his business address or at such other address as the person
sending such notice shall reasonably believe appropriate, in each case not
less than forty-eight hours prior to the meeting. The notice need not
prescribe the purpose of the special meeting of the Board of Directors or
the business to be transacted at such meeting. If given by telegram, such
notice shall be deemed to be effective when the telegram is delivered to
the telegraph company. If given by teletype, facsimile or other wire or
wireless communication, such notice shall be deemed to be effective when
transmitted. If mailed, such notice shall be deemed to be effective when
deposited in the United States mail so addressed, with postage thereon
prepaid. If given by private carrier, such notice shall be deemed to be
effective when delivered to the private carrier. Whenever any notice
whatever is required to be given to any director of the corporation under
the Articles of Incorporation or these bylaws or any provision of the
Wisconsin Business Corporation Law, a waiver thereof in writing, signed at
any time, whether before or after the date and time of meeting, by the
director entitled to such notice shall be deemed equivalent to the timely
giving of such notice. The corporation shall retain any such waiver as
part of the permanent corporate records. A director's attendance at or
participation in a meeting waives any required notice to him or her of the
meeting unless the director at the beginning of the meeting or promptly
upon his or her arrival objects to holding the meeting or transacting
business at the meeting and does not thereafter vote for or assent to
action taken at the meeting.
3.07. Quorum. Except as otherwise provided in the Articles of
Incorporation or these bylaws or by the Wisconsin Business Corporation
Law, directors holding a majority of the positions on the Board of
Directors established pursuant to Section 3.02 of these bylaws shall
constitute a quorum for transaction of business at any meeting of the
Board of Directors. A majority of the directors present (though less than
a quorum) may adjourn any meeting of the Board of Directors from time to
time without further notice.
3.08. Manner of Acting. The affirmative vote of a majority of
the directors present at a meeting of the Board of Directors at which a
quorum is present shall be the act of the Board of Directors unless the
Wisconsin Business Corporation Law, the Articles of Incorporation or these
bylaws require the vote of a greater number of directors.
3.09. Presumption of Assent. A director who is present and is
announced as present at a meeting of the Board of Directors or any
committee thereof created in accordance with Article IV of these bylaws,
when corporate action is taken on a particular matter, assents to the
action taken unless any of the following occurs: (a) the director objects
at the beginning of the meeting or promptly upon his or her arrival to
holding the meeting or transacting business at the meeting; (b) the
director dissents or abstains from an action taken and minutes of the
meeting are prepared that show the director's dissent or abstention from
the action taken; (c) the director delivers written notice that complies
with the Wisconsin Business Corporation Law of his or her dissent or
abstention from the action taken on the particular matter to the presiding
person of the meeting before its adjournment or to the corporation
immediately after adjournment of the meeting; or (d) the director dissents
or abstains from an action taken, minutes of the meeting are prepared that
fail to show the director's dissent or abstention from the action taken,
and the director delivers to the corporation a written notice of that
failure that complies with the Wisconsin Business Corporation Law promptly
after receiving the minutes. Such right of dissent or abstention shall
not apply to a director who votes in favor of the action taken on the
particular matter.
3.10. Action by Directors Without a Meeting. Any action
required or permitted by the Articles of Incorporation, these bylaws or
the Wisconsin Business Corporation Law to be taken at any meeting of the
Board of Directors or any committee thereof created pursuant to Article IV
of these bylaws may be taken without a meeting if the action is taken by
all members of the Board of Directors or such committee, as the case may
be. The action shall be evidenced by one or more written consents
describing the action taken, signed by each director or committee member,
as the case may be, and retained by the corporation. In the event one or
more positions on the Board of Directors or any committee thereof shall be
vacant at the time of the execution of any such consent, such consent
shall nevertheless be effective if it shall be signed by all persons
serving as members of the Board of Directors or of such committee, as the
case may be, at such time and if the persons signing the consent would be
able to take the action called for by the consent at a properly
constituted meeting of the Board of Directors or such committee, as the
case may be.
3.11. Compensation. The Board of Directors, irrespective of
any personal interest of any of its members, may establish reasonable
compensation of all directors for services to the corporation as directors
or may delegate such authority to an appropriate committee of the Board of
Directors. The Board of Directors also shall have authority to provide
for or delegate authority to an appropriate committee of the Board of
Directors to provide for reasonable pensions, disability or death
benefits, and other benefits or payments, to directors, officers and
employees and to their estates, families, dependents or beneficiaries on
account of prior services rendered by such directors, officers and
employees to the corporation.
3.12. Telephonic Meetings. Except as herein provided and
notwithstanding any place set forth in the notice of the meeting or these
bylaws, members of the Board of Directors (and any committees thereof
created pursuant to Article IV hereof) may participate in regular or
special meetings by, or through the use of, any means of communication by
which (a) all participants may simultaneously hear each other, such as by
conference telephone, or (b) all communication is immediately transmitted
to each participant, and each participant can immediately send messages to
all other participants. If a meeting is conducted by such means, then at
the commencement of such meeting the presiding person shall inform the
participating directors that a meeting is taking place at which official
business may be transacted. Any participant in a meeting by such means
shall be deemed present in person at such meeting. Notwithstanding the
foregoing, no action may be taken at any meeting held by such means on any
particular matter which the presiding person determines, in his or her
sole discretion, to be inappropriate under the circumstances for action at
a meeting held by such means. Such determination shall be made and
announced in advance of such meeting.
3.13. Conduct of Meetings. The Chairman of the Board, if any,
and in his or her absence, the President, and in their absence, any
director chosen by the directors present, shall call meetings of the Board
of Directors to order, shall act as chairman of the meeting and shall
otherwise preside at 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 person may appoint any other
person present to act as secretary of the meeting. Minutes of any regular
or special meeting of the Board of Directors shall be prepared and
distributed to each director.
ARTICLE FOUR
Committees of the Board of Directors
4.01. General.
(a) Establishment. The Board of Directors by resolution
adopted by the affirmative vote of a majority of all of the directors then
in office pursuant to Section 3.02 of these bylaws may establish one or
more committees, each committee to consist of two or more directors of
this corporation elected by the Board of Directors. The term "Board
Committee" as used in these bylaws means any committee comprised
exclusively of directors of the corporation which is identified as a
"Board Committee" either in these bylaws or in any resolutions adopted by
the Board of Directors.
(b) Membership. The Board of Directors by resolution adopted
by the affirmative vote of a majority of all directors then in office
shall have the power to: (i) establish the number of membership positions
on each Board Committee from time to time and change the number of
membership positions on such Committee from time to time; provided each
Board Committee shall consist of at least two members; (ii) appoint any
director to membership on any Board Committee who shall be willing to
serve on such Committee; (iii) remove any person from membership on any
Board Committee with or without cause; and (iv) appoint any director to
membership on any Board Committee as an alternate member. A person's
membership on any Board Committee shall automatically terminate when such
person ceases to be a director of the corporation.
(c) Powers. Except as otherwise provided in Section 4.01(d) of
these bylaws, each Board Committee shall have and may exercise all the
powers and authority of the Board of Directors, when the Board of
Directors is not in session, in the management of the business and affairs
of the corporation to the extent (but only to the extent) such powers
shall be expressly delegated to it by the Board of Directors or by these
bylaws. Unless otherwise provided by the Board of Directors in creating
the committee, a committee may employ counsel, accountants and other
consultants to assist it in the exercise of its authority.
(d) Reserved Powers. No Board Committee shall have the right
or power to do any of the following: (i) authorize distributions; (ii)
approve or propose to shareholders action that the Wisconsin Business
Corporation Law requires to be approved by shareholders; (iii) fill
vacancies on the Board of Directors, or, unless the Board of Directors
provides by resolution that vacancies on a committee shall be filled by
the affirmative vote of a majority of the remaining committee members, on
any Board Committee; (iv) amend the Articles of Incorporation; (v) adopt,
amend or repeal these bylaws; (vi) approve a plan of merger not requiring
shareholder approval; (vii) authorize or approve reacquisition of shares,
except according to a formula or method prescribed by the Board of
Directors; and (viii) authorize or approve the issuance or sale or
contract for sale of shares, or determine the designation and relative
rights, preferences and limitations of a class or series of shares, except
that the Board of Directors may authorize a committee to do so within
limits prescribed by the Board of Directors.
(e) Vote Required. Except as provided by the Wisconsin
Business Corporation Law or in the Articles of Incorporation or these
bylaws, the members holding at least a majority of the membership
positions on any Board Committee shall constitute a quorum for purposes of
any meeting of such committee. The affirmative vote of the majority of
the members of a Board Committee present at any meeting of the Board
Committee at which a quorum is present shall be necessary and sufficient
to approve any action within the Board Committee's power, and any action
so approved by such a majority shall be deemed to have been taken by the
Board Committee and to be the act of such Board Committee.
(f) Governance. The Board of Directors may designate the
person who is to serve as chairman of and preside over any Board
Committee, and in the absence of any such designation by the Board of
Directors, the members of the Board Committee may either designate one
member of the Board Committee as its chairman to preside at any meeting or
elect to operate without a chairman, except as otherwise required by these
bylaws. Each Board Committee may appoint a secretary who need not be a
member of the Committee or a member of the Board of Directors. Each Board
Committee shall have the right to establish such rules and procedures
governing its meetings and operations as such committee shall deem
desirable provided such rules and procedures shall not be inconsistent
with the Articles of Incorporation, these bylaws, or any direction to such
committee issued by the Board of Directors.
(g) Alternate Committee Members. The Board of Directors may
designate one or more directors as alternate members of any Board
Committee, and any such director may replace any regular member of such
Board Committee who for any reason is absent from a meeting of such Board
Committee or is otherwise disqualified from serving on such Board
Committee.
4.02. Executive Committee. The corporation shall have an
Executive Committee. The Executive Committee shall be a Board Committee
and shall be subject to the provisions of Section 4.01 of these bylaws.
The Executive Committee shall assist the Board of Directors in developing
and evaluating general corporate policies and objectives. The Executive
Committee shall perform such specific assignments as shall be expressly
delegated to it from time to time by the Board of Directors and shall
(subject to the limitations specified in Section 4.01(d) of these bylaws
or imposed by the Wisconsin Business Corporation Law) have the power to
exercise, when the Board of Directors is not in session, the powers of the
Board of Directors except to the extent expressly limited or precluded
from exercising such powers in resolutions from time to time adopted by
the Board of Directors. Meetings of the Executive Committee may be called
at any time by any two members of the Committee. The time and place for
each meeting shall be established by the members calling the meeting. The
Chairman of the Board, when present, shall preside at all meetings of the
Executive Committee.
4.03. Audit Committee. The corporation shall have an Audit
Committee. The Audit Committee shall be a Board Committee and shall be
subject to the provisions of Section 4.01 of these bylaws. The Audit
Committee shall: (a) recommend to the Board of Directors annually a firm
of independent public accountants to act as auditors of the corporation;
(b) review with the auditors in advance the scope of their annual audit;
(c) review with the auditors and the management, from time to time, the
corporation's accounting principles, policies and practices and its
reporting policies and practices; (d) review with the auditors annually
the results of their audit; (e) review from time to time with the auditors
and the corporation's financial personnel the adequacy of the
corporation's accounting, financial and operating controls; (f) review
transactions between the corporation or any subsidiary of the corporation
and any shareholder who holds at least fifty percent of the total number
of shares outstanding of the corporation's Class A Common Stock or Class B
Common Stock (a "Controlling Shareholder") or any subsidiary of a
Controlling Shareholder in accordance with policies adopted by the Board
of Directors; and (g) perform such other duties as shall from time to time
be delegated to the Committee by the Board of Directors. The membership
of the Audit Committee shall always be such that a majority of the members
of the Audit Committee shall not be full-time employees of any Controlling
Shareholder, the corporation or any of their respective subsidiaries.
Within the limitations prescribed in the preceding sentence, the
membership on the Audit Committee shall be determined by the Board of
Directors as provided in Section 4.01 of these bylaws.
4.04. Compensation Committee. The corporation shall have a
Compensation Committee. The Compensation Committee shall be a Board
Committee and shall be subject to the provisions of Section 4.01 of these
bylaws. The Compensation Committee shall have the authority to establish
the compensation and benefits for directors, officers and, at the option
of the Compensation Committee, other managerial personnel of the
corporation and its subsidiaries, including, without limitation, fixing
the cash compensation of such persons, establishing and administering
compensation and benefit plans for such persons and determining awards
thereunder, and entering into (or amending existing) employment and
compensation agreements with any such persons. The Compensation Committee
may also recommend persons to be elected as officers of the corporation or
any of its subsidiaries to the Board of Directors. The Compensation
Committee shall perform such other duties as shall from time to time be
delegated to the Compensation Committee by the Board of Directors. The
authority of the Compensation Committee shall be subject to such
limitations and restrictions as may be imposed by the Board of Directors,
which may delegate the authority to establish or administer specific
employee compensation or benefit plans to one or more other Board
Committees or one or more persons designated by the Board of Directors.
The Compensation Committee shall consist solely of members of the Board of
Directors who are not officers of the corporation. The membership of the
Compensation Committee shall be determined by the Board of Directors as
provided in Section 4.01 of these bylaws.
ARTICLE FIVE
Officers
5.01. Number. The principal officers of the corporation shall
be appointed by the Board of Directors and shall consist of a President,
one or more Vice Presidents, a Secretary and a Treasurer. Such other
officers and assistant officers as may be deemed necessary or desirable
may be appointed by the Board of Directors. The President must be a
member of the Board of Directors, but no other officer need be a member of
the Board of Directors. Any two or more offices may be held by the same
person. In its discretion, the Board of Directors may choose not to fill
any office for any period as it may deem advisable, except the principal
offices of President, Vice President, Treasurer and Secretary. The Board
of Directors may authorize any officer to appoint one or more officers or
assistant officers.
5.02. Appointment and Term of Office. The officers of the
corporation to be appointed by the Board of Directors shall be appointed
annually by the Board of Directors at its first meeting following the
annual meeting of shareholders. If the appointment of officers shall not
occur at such meeting, such appointment shall occur as soon thereafter as
conveniently may be. Each officer shall hold office until the earlier of:
(a) the time at which a successor is duly appointed and, if necessary,
qualified, or (b) his or her death, resignation or removal as hereinafter
provided. The Board of Directors shall have the right to enter into
employment contracts providing for the employment of any officer for a
term longer than one year, but no such contract shall preclude the Board
of Directors from removing any person from any position with the
corporation whenever in the judgment of the Board of Directors the best
interests of the corporation would be served thereby.
5.03. Removal. The Board of Directors may remove any officer
and, unless restricted by the Board of Directors or these bylaws, an
officer may remove any officer appointed by that officer, at any time,
with or without cause and notwithstanding the contract rights, if any, of
the officer removed. The appointment of an officer does not of itself
create contract rights.
5.04. Resignation. An officer may resign at any time by
delivering notice to the corporation that complies with the Wisconsin
Business Corporation Law. The resignation shall be effective when the
notice is delivered, unless the notice specifies a later effective date
and the corporation accepts the later effective date.
5.05. Vacancies. A vacancy in any principal office because of
death, resignation, removal, disqualification or otherwise, shall be
filled by the Board of Directors for the unexpired portion of the term.
If a resignation of an officer is effective at a later date as
contemplated by Section 5.04 of these bylaws, the Board of Directors may
fill the pending vacancy before the effective date if the Board provides
that the successor may not take office until the effective date.
5.06. General Powers of Officers. For purposes of these
bylaws, the corporation's President and each Vice President shall be
deemed to be a "senior officer". Whenever any resolution adopted by the
corporation's shareholders, Board of Directors or Board Committee shall
authorize the "proper" or "appropriate" officers of the corporation to
execute any note, contract or other document or to take any other action
or shall generally authorize any action without specifying the officer or
officers authorized to take such action, any senior officer acting alone
and without countersignatures may take such action on behalf of the
corporation. Any officer of the corporation may on behalf of the
corporation sign contracts, reports to governmental agencies, or other
instruments which are in the regular course of business, except where the
signing and execution thereof shall be expressly delegated by the Board of
Directors or by these bylaws to some other officer or agent of the
corporation, or shall be required by the Wisconsin Business Corporation
Law or other applicable law to be otherwise signed or executed.
5.07. The President. The President shall be the chief
executive officer of the corporation and, subject to the control of the
Board of Directors, shall in general supervise and control all of the
business and affairs of the corporation. He shall, when present, in the
absence of the Chairman of the Board, if any, preside at all meetings of
the shareholders. In general he shall perform all duties incident to the
office of chief executive officer and such other duties as may be
prescribed by the Board of Directors from time to time.
5.08. Vice Presidents. Each Vice President shall perform such
duties and have such powers as the Board of Directors may from time to
time prescribe. The Board of Directors may designate any Vice President
as being senior in rank or degree of responsibility and may accord such a
Vice President an appropriate title designating his senior rank such as
"Executive Vice President" or "Senior Vice President" or "Group Vice
President". The Board of Directors may assign a certain Vice President
responsibility for a designated group, division or function of the
corporation's business and add an appropriate descriptive designation to
his title.
5.09. Secretary. The Secretary shall (subject to the control
of the Board of Directors): (a) keep the minutes of the shareholders' and
the Board of Directors' meetings in one or more books provided for that
purpose (including records of actions taken without a meeting); (b) see
that all notices are duly given in accordance with the provisions of these
bylaws or as required by the Wisconsin Business Corporation Law; (c) be
custodian of the corporate records and of the seal of the corporation and
see that the seal of the corporation is affixed to all documents, the
execution of which on behalf of the corporation under its seal is duly
authorized; (d) maintain a record of the shareholders of the corporation
in a form that permits preparation of a list of the names and address of
all shareholders by class or series of shares and showing the number and
class or series of shares held by each shareholder; (e) have general
charge of the stock transfer books of the corporation; (f) supply in such
circumstances as the Secretary deems appropriate to any governmental
agency or other person a copy of any resolution adopted by the
corporation's shareholders, Board of Directors or Board Committee, any
corporate record or document, or other information concerning the
corporation and its officers and certify on behalf of the corporation as
to the accuracy and completeness of the resolution, record, document or
information supplied; and (g) in general, perform all duties incident to
the office of Secretary and perform such other duties and have such other
powers as the Board of Directors or the President may from time to time
prescribe.
5.10. Treasurer. The Treasurer shall: (a) have charge and
custody of and be responsible for all funds and securities of the
corporation; (b) maintain appropriate accounting records; (c) receive and
give receipts for monies due and payable to the corporation from any
source whatsoever, and deposit all such monies in the name of the
corporation in such banks, trust companies or other depositories as shall
be selected by or under authority of the Board of Directors; and (d) in
general, perform all of the duties incident to the office of Treasurer and
such other duties as from time to time may be assigned to him by the
President. The Treasurer shall give a bond if required by the Board of
Directors for the faithful discharge of his duties in a sum and with one
or more sureties satisfactory to the Board of Directors.
5.11. Assistant Secretaries and Assistant Treasurers. There
shall be such number of Assistant Secretaries and Assistant Treasurers as
the Board of Directors may from time to time authorize. The Assistant
Secretaries may sign with the 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.
5.12. Other Assistants and Acting Officers. The Board of
Directors shall have the power to appoint, or to authorize any duly
appointed officer of the corporation to appoint, any person to act as
assistant to any officer, or as agent for the corporation in his or her
stead, or to perform the duties of such officer whenever for any reason it
is impracticable for such officer to act personally, and such assistant or
acting officer or other agent so appointed by the Board of Directors or an
authorized officer shall have the power to perform all the duties of the
office to which he or she is so appointed to be an assistant, or as to
which he or she is so appointed to act, except as such power may be
otherwise defined or restricted by the Board of Directors or the
appointing officer.
ARTICLE SIX
Contracts, Loans, Checks and Deposits
6.01. Contracts. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or
execute or deliver any instrument in the name of and on behalf of the
corporation, and such authorization may be general or confined to specific
instances. In the absence of other designation, all deeds, mortgages and
instruments of assignment or pledge made by the corporation shall be
executed in the name of the corporation by the President or one of the
Vice Presidents and by the Secretary, an Assistant Secretary, the
Treasurer or an Assistant Treasurer; the Secretary or an Assistant
Secretary, when necessary or required, shall affix the corporate seal
thereto; and when so executed no other party to such instrument or any
third party shall be required to make any inquiry into the authority of
the signing officer or officers.
6.02. 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.
6.03. 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.
6.04. 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.
6.05. Voting of Securities Owned by this Corporation. Subject
always to the specific directions of the Board of Directors, (a) any
shares or other securities issued by any other corporation and owned or
controlled by this corporation may be voted at any meeting of security
holders of such other corporation by the President of this corporation, if
he or she be present, or in his or her absence by any Vice President of
this corporation who may be present, and (b) whenever, in the judgment of
the President, or in his or her absence, of 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 one of the Vice
Presidents of this corporation, without necessity of any authorization by
the Board of Directors, affixation of corporate seal, if any, or
countersignature or attestation by another officer. Any person or persons
designated in the manner above stated as the proxy or proxies of this
corporation shall have full right, power and authority to vote the shares
or other securities issued by such other corporation and owned by this
corporation the same as such shares or other securities might be voted by
this corporation.
6.06. No Nominee Procedures. The corporation has not
established, and nothing in these bylaws shall be deemed to establish, any
procedure by which a beneficial owner of the corporation's shares that are
registered in the name of a nominee is recognized by the corporation as
the shareholder under Section 180.0723 of the Wisconsin Business
Corporation Law.
6.07. Performance Bonds. The President and the Treasurer of
the corporation, and either one of them, shall have the continuing
authority to take all actions and to execute and deliver any and all
documents or instruments (including, without limitation, reimbursement
agreements and agreements of indemnity) in favor of such parties, in such
amounts and on such terms and conditions as may be necessary or useful for
the corporation or any of its direct or indirect subsidiaries to obtain
performance bonds, surety bonds, completion bonds, guarantees, indemnities
or similar assurances (collectively referred to as "Performance Bonds")
from third parties as such officer shall, in his sole discretion, deem
necessary or useful to facilitate and promote the business of the
corporation or any of its subsidiaries; provided, however, that the
contingent liability of the corporation with respect to Performance Bonds
for the corporation's subsidiaries shall not exceed $200,000 in any single
transaction or $1 million in the aggregate without the specific
authorization of the Board of Directors. Any action taken or document or
instrument executed and delivered by any such officer after December 31,
1993, that is within the scope of the authority granted in this Section
6.07 is hereby ratified, approved and confirmed. If any party shall
require resolutions of the Board of Directors with respect to the approval
of any actions of any officer of the corporation or documents or
instruments related to the Performance Bonds and within the scope of and
generally consistent with this Section 6.07, such resolutions shall be
deemed to have been duly approved and adopted by the Board of Directors,
and may be certified by the Secretary whenever approved by the President
or the Treasurer, in his sole discretion, and a copy thereof has been
inserted in the minute book of the corporation.
ARTICLE SEVEN
Corporate Stock
7.01. Certificates for Shares. Certificates representing
shares of any class of stock issued by the corporation shall be in such
form, consistent with the Wisconsin Business Corporation Law, as shall be
determined by the Board of Directors. Such certificates shall be signed
by the President or a Vice President and by the Secretary or an Assistant
Secretary and shall be sealed with the seal, or a facsimile of the seal,
of the corporation. If a certificate is countersigned by a transfer agent
or registrar, other than the corporation itself or its employees, any
other signature or countersignature on the certificate may be a facsimile.
In case any officer of the corporation, or any officer or employee of the
transfer agent or registrar who has signed or whose facsimile signature
has been placed upon such certificate ceases to be an officer of the
corporation, or an officer or employee of the transfer agent or registrar
before such certificate is issued, the certificate may be issued by the
corporation with the same effect as if the officer of the corporation, or
the officer or employee of the transfer agent or registrar had not ceased
to be such at the date of its issue. All certificates for shares shall be
consecutively numbered or otherwise identified. The name of the person to
whom the shares represented thereby are issued, with the number of shares
and date of issue, shall be entered on the books of the corporation. All
certificates surrendered to the corporation for transfer shall be
canceled, and no new certificate shall be issued in replacement until the
former certificate for a like number of shares shall have been surrendered
and canceled, except as otherwise provided in Section 7.04 of these bylaws
with respect to lost, stolen or destroyed certificates.
7.02. Transfer Agent and Registrar. The Board of Directors may
from time to time with respect to each class of stock issuable by the
corporation appoint such transfer agents and registrars in such locations
as it shall determine, and may, in its discretion, appoint a single entity
to act in the capacity of both transfer agent and a registrar in any one
location.
7.03. Transfers of Shares. Transfers of shares shall be made
only on the books maintained by the corporation or a transfer agent
appointed as contemplated by Section 7.02 of these bylaws at the request
of the holder of record thereof or of his attorney, lawfully constituted
in writing, and on surrender for cancellation of the certificate for such
shares. Prior to due presentment of a certificate for shares for
registration of transfer, the corporation may (but shall not be required
to) treat the person in whose name corporate shares stand on the books of
the corporation as the only person having any interest in such shares and
as the only person having the right to receive dividends on and to vote
such shares, and the corporation shall not be bound to recognize any
equitable or other claim to or interest in such shares on the part of the
other person, whether or not it shall have express or other notice
thereof. Where a certificate for shares is presented to the corporation
or a transfer agent with a request to register for transfer, the
corporation or the transfer agent, as the case may be, 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 or the transfer agent had
no duty to inquire into adverse claims or has discharged any such duty.
The corporation or transfer agent may require reasonable assurance that
such endorsements are genuine and effective and compliance with such other
regulations as may be prescribed by or under the authority of the Board of
Directors.
7.04. Lost, Stolen or Destroyed Certificates. The Board of
Directors may direct a new certificate or certificates to be issued in
place of any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate
of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require
the person requesting such new certificate or certificates, or his or her
legal representative, to give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the
corporation with respect to the certificate alleged to have been lost,
stolen or destroyed.
7.05. 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.
7.06. Consideration for Shares. The Board of Directors may
authorize shares to be issued for consideration consisting of any tangible
or intangible property or benefit to the corporation, including cash,
promissory notes, services performed, contracts for services to be
performed or other securities of the corporation. Before the corporation
issues shares, the Board of Directors shall determine that the
consideration received or to be received for the shares to be issued is
adequate. The determination of the Board of Directors is conclusive
insofar as the adequacy of consideration for the issuance of shares
relates to whether the shares are validly issued, fully paid and
nonassessable. The corporation may place in escrow shares issued in whole
or in part for a contract for future services or benefits, a promissory
note, or otherwise for property to be received in the future, or make
other arrangements to restrict the transfer of the shares, and may credit
distributions in respect of the shares against their purchase price, until
the services are performed, the benefits or property are received or the
promissory note is paid. If the services are not performed, the benefits
or property are not received or the promissory note is not paid, the
corporation may cancel, in whole or in part, the shares escrowed or
restricted and the distributions credited.
7.07 Stock Regulations. The Board of Directors shall have the
power and authority to make all such further rules and regulations not
inconsistent with the Wisconsin Business Corporation Law as it may deem
expedient concerning the issue, transfer and registration of certificates
representing shares of the corporation.
ARTICLE EIGHT
General Provisions
8.01. Fiscal Year. The fiscal year of the corporation shall
begin and end on such dates as the Board of Directors shall determine by
resolution.
8.02. Seal. The corporate seal shall have inscribed thereon
the name of the corporation, the year of its organization and the words
"Corporate Seal, Wisconsin." The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE NINE
Amendments
9.01. By Directors. Except as otherwise provided by the
Wisconsin Business Corporation Law or the Articles of Incorporation, these
bylaws may be amended or repealed and new bylaws may be adopted by the
Board of Directors at any meeting at which a quorum is in attendance;
provided, however, that the shareholders in adopting, amending or
repealing a particular bylaw may provide therein that the Board of
Directors may not amend, repeal or readopt that bylaw.
9.02. By Shareholders. Except as otherwise provided in the
Articles of Incorporation, these bylaws may also be amended or repealed
and new bylaws may be adopted by the shareholders at any annual or special
meeting of the shareholders at which a quorum is in attendance.
9.03. Implied Amendments. Any action taken or authorized by
the shareholders or by the Board of Directors, which would be inconsistent
with the bylaws then in effect but is taken or authorized by affirmative
vote of not less than the number of votes or the number of directors
required to amend the bylaws so that the bylaws would be consistent with
such action, shall be given the same effect as though the bylaws had been
temporarily amended or suspended so far, but only so far, as is necessary
to permit the specific action so taken or authorized.
ARTICLE TEN
Indemnification
10.01. Certain Definitions. All capitalized terms used in this
Article X and not otherwise hereinafter defined in this Section 10.01
shall have the meaning set forth in Section 180.0850 of the Statute. The
following capitalized terms (including any plural forms thereof) used in
this Article X shall be defined as follows:
(a) "Affiliate" shall include, without limitation, any
corporation, partnership, joint venture, employee benefit plan,
trust or other enterprise that, directly or indirectly through
one or more intermediaries, controls or is controlled by, or is
under common control with, the Corporation.
(b) "Authority" shall mean the entity selected by the
Director or Officer to determine his or her right to
indemnification pursuant to Section 10.04.
(c) "Board" shall mean the entire then elected and serving
Board of Directors of the Corporation, including all members
thereof who are Parties to the subject Proceeding or any related
Proceeding.
(d) "Breach of Duty" shall mean the Director or Officer
breached or failed to perform his or her duties to the
Corporation and his or her breach of or failure to perform those
duties is determined, in accordance with Section 10.04, to
constitute misconduct under Section 180.0851(2)(a) 1, 2, 3 or 4
of the Statute.
(e) "Corporation," as used herein and as defined in the
Statute and incorporated by reference into the definitions of
certain capitalized terms used herein, shall mean this
Corporation, including, without limitation, any successor
corporation or entity to the 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 X,
it shall be conclusively presumed that any Director or Officer
serving as a director, officer, partner, trustee, member of any
governing or decision-making committee, employee or agent of an
Affiliate shall be so serving at the request of the Corporation.
(g) "Disinterested Quorum" shall mean a quorum of the
Board who are not Parties to the subject Proceeding or any
related Proceeding.
(h) "Party" shall have the meaning set forth in the
Statute; provided, that, for purposes of this Article X, the
term "Party" shall also include any Director, Officer or
employee who is or was a witness in a Proceeding at a time when
he or she has not otherwise been formally named a Party thereto.
(i) "Proceeding" shall have the meaning set forth in the
Statute; provided, that, for purposes of this Article X,
"Proceeding" shall 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 such Proceeding is
authorized by a majority vote of a Disinterested Quorum.
(j) "Statute" shall mean Sections 180.0850 through
180.0859, inclusive, of the Wisconsin Business Corporation Law,
Chapter 180 of the Wisconsin Statutes, including any amendments
thereto, but, in the case of any such amendment, only to the
extent such amendment permits or requires the Corporation to
provide broader indemnification rights than the Statute
permitted or required the Corporation to provide prior to such
amendment.
10.02. Mandatory Indemnification. To the fullest extent
permitted or required by the Statute, the Corporation shall indemnify a
Director or Officer against all Liabilities incurred by or on behalf of
such Director or Officer in connection with a Proceeding in which the
Director or Officer is a Party because he or she is a Director or Officer.
10.03. Procedural Requirements.
(a) A Director or Officer who seeks indemnification under
Section 10.02 shall make a written request therefor to the Corporation.
Subject to Section 10.03(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 10.05).
(b) No indemnification shall be required to be paid by the
Corporation pursuant to Section 10.02 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 10.03(b),
the Board shall immediately authorize by resolution that an Authority, as
provided in Section 10.04, 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
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 Officer or Director
immediately.
10.04. Determination of Indemnification.
(a) If the Board authorizes an Authority to determine a
Director's or Officer's right to indemnification pursuant to Section
10.03, then the Director or Officer requesting indemnification shall have
the absolute discretionary authority to select one of the following as
such Authority:
(i) An independent legal counsel; provided, that such
counsel shall be mutually selected by such Director or Officer
and by a majority vote of a Disinterested Quorum or, if a
Disinterested Quorum cannot be obtained, then by a majority vote
of the Board;
(ii) A panel of three arbitrators selected from the panels
of arbitrators of the American Arbitration Association in
Milwaukee, Wisconsin; provided, that (A) one arbitrator shall be
selected by such Director or Officer, the second arbitrator
shall be selected by a majority vote of a Disinterested Quorum
or, if a Disinterested Quorum cannot be obtained, then by a
majority vote of the Board, and the third arbitrator shall be
selected by the two previously selected arbitrators; and (B) in
all other respects, such panel shall be governed by the American
Arbitration Association's then existing Commercial Arbitration
Rules; or
(iii) A court pursuant to and in accordance with Section
180.0854 of the Statute.
(b) In any such determination by the selected Authority there
shall exist a rebuttable presumption that the Director's or Officer's
conduct did not constitute a Breach of Duty and that indemnification
against the requested amount of Liabilities is required. The burden of
rebutting such a presumption by clear and convincing evidence shall be on
the Corporation or such other party asserting that such indemnification
should not be allowed.
(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 10.05), 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 as to some claims,
issues or matters, but not as to other claims, issues or matters, involved
in the subject Proceeding, the Corporation shall be required to pay (as
set forth above) only the amount of such requested Liabilities as the
Authority shall deem appropriate in light of all of the circumstances of
such Proceeding.
(e) The determination by the Authority that indemnification is
required hereunder shall be binding upon the Corporation regardless of any
prior determination that the Director or Officer engaged in a Breach of
Duty.
(f) All Expenses incurred in the determination process under
this Section 10.04 by either the Corporation or the Director or Officer,
including, without limitation, all Expenses of the selected Authority,
shall be paid by the Corporation.
10.05. Mandatory Allowance of Expenses.
(a) The Corporation shall pay or reimburse, 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 10.05 if it is ultimately determined by
an Authority that he or she is not entitled to be indemnified by
the Corporation for such Expenses pursuant to Section 10.04.
(b) If the Director or Officer must repay any previously
advanced Expenses pursuant to this Section 10.05, such Director or Officer
shall not be required to pay interest on such amounts.
10.06. Indemnification and Allowance of Expenses of Certain
Others.
(a) The Corporation shall indemnify a director or officer of an
Affiliate (who is not otherwise serving as a Director or Officer) against
all Liabilities, and shall advance the reasonable Expenses, incurred by
such director or officer in a Proceeding to the same extent hereunder as
if such director or officer incurred such Liabilities because he or she
was a Director or Officer, if such director or officer is a Party thereto
because he or she is or was a director or officer of the Affiliate.
(b) The Corporation shall indemnify an employee who is not a
Director or Officer, to the extent that he or she has been successful on
the merits or otherwise in defense of a Proceeding, for all reasonable
Expenses incurred in the Proceeding if the employee was a Party because he
or she was an employee of the Corporation.
(c) The Board may, in its sole and absolute discretion as it
deems appropriate, pursuant to a majority vote thereof, indemnify (to the
extent not otherwise provided in Section 10.06(b)) against Liabilities
incurred by, and/or provide for the allowance of reasonable Expenses of,
an authorized employee or agent of the Corporation acting within the scope
of his or her duties as such and who is not otherwise a Director or
Officer.
10.07. Insurance. The Corporation may purchase and maintain
insurance on behalf of a Director or Officer or any individual who is or
was an authorized employee or 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 X.
10.08. 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 and Officers only, by an Authority).
10.09. Severability. If any provision of this Article X shall
be deemed invalid or inoperative, or if a court of competent jurisdiction
determines that any of the provisions of this Article X contravene public
policy, this Article X 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.
10.10. Nonexclusivity of Article X. The rights of a Director,
Officer or employee (or any other person) granted under this Article X
shall not be deemed exclusive of any other rights to indemnification
against Liabilities or advancement of Expenses which the Director, Officer
or employee (or such other person) may be entitled to under any written
agreement, Board resolution, vote of shareholders of the Corporation or
otherwise, including, without limitation, under the Statute. Nothing
contained in this Article X shall be deemed to limit the Corporation's
obligations to indemnify a Director, Officer or employee under the
Statute.
10.11. Contractual Nature of Article X; Repeal or Limitation of
Rights. This Article X 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 X 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 of
indemnification against Liabilities or allowance or Expenses for
Proceedings commenced after such repeal or limitation to enforce this
Article X with regard to acts, omissions or events arising prior to such
repeal or limitation.