Exhibit 3.2
UNIVERSAL FOODS CORPORATION
BYLAWS
(As Amended Through November 9, 1995)
1. OFFICES
1.1 Business Offices. The principal office of the corporation
in the State of Wisconsin shall be located in the City of Milwaukee,
County of Milwaukee. The corporation may have such other offices, either
within or without the State of Wisconsin, as the Board of Directors may
designate or as the business of the corporation may require from time to
time.
1.2 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.
2. SHAREHOLDERS
2.1 Annual Meeting. The date of the annual meeting of
shareholders shall be set by the Board of Directors each year for the
third Thursday after the first Friday of January, or on such other day as
may be designated by the Board of Directors, for the purpose of electing
directors and transacting such other business as may come before the
meeting; provided, however, that any such other date shall be not later
than March 1. In fixing a meeting date for any annual meeting of
shareholders, the Board of Directors may consider such factors as it deems
relevant within the good faith exercise of its business judgment. If the
election of directors shall not be held at the annual meeting of
shareholders, or at any adjournment thereof, the Board of Directors shall
cause the election to be held at a special meeting of shareholders as soon
thereafter as convenient.
2.1A Purposes of Annual Meeting. At an annual meeting of
shareholders (an "Annual Meeting"), only business properly brought before
the meeting as provided in this Section may be transacted. To be properly
brought before an Annual Meeting, business must be (i) specified in the
notice of the meeting (or any supplement thereto) given by or at the
direction of the Board of Directors, (ii) brought before the meeting by or
at the direction of the Board of Directors or (iii) otherwise properly
brought before the meeting by a shareholder of record where the
shareholder has complied with the requirements of this Section. To bring
business before an Annual Meeting, a shareholder must have given written
notice thereof, either by personal delivery or by United States certified
mail, postage prepaid, to the Secretary of the corporation, that is
received by the Secretary not more than ninety (90) days and not less than
fifty (50) days in advance of the third Thursday after the first Friday in
the month of January next following the last Annual Meeting held; provided
that if the Annual Meeting of shareholders is held earlier than the third
Thursday after the first Friday in the month of January, such notice must
be given on or before the later of (x) the date fifty (50) days prior to
the earlier date of the Annual Meeting and (y) the date ten (10) business
days after the first public disclosure, which may include any public
filing with the Securities and Exchange Commission or a press release to
Dow Jones & Company or any similar service, of the earlier date of the
Annual Meeting. Any such notice shall set forth the following as to each
matter the shareholder proposes to bring before the Annual Meeting: (A) a
brief description of the business desired to be brought before the meeting
and the reasons for conducting such business at the meeting and, if such
business includes a proposal to amend the By-laws of the corporation, the
language of the proposed amendment; (B) the name and address, as they
appear on the corporation's books, of the shareholder proposing such
business and the beneficial owner or owners, if any, on whose behalf the
business is proposed; (C) the class and number of shares of the
corporation which are beneficially owned by such shareholder and
beneficial owner or owners; (D) a representation that the shareholder is a
holder of record of stock of the corporation entitled to vote at such
meeting and intends to appear in person or by proxy at the meeting to
propose such business; and (E) any material interest of the shareholder
and beneficial owner or owners in such business and such persons' reasons
for conducting such business at the meeting. Notwithstanding anything in
the By-laws to the contrary, no business shall be conducted at an Annual
Meeting except in accordance with the procedures set forth in this
Section. If the chairman of the shareholders meeting shall determine that
business was not properly brought before the meeting and in accordance
with the provisions of the By-laws, he shall so declare to the meeting and
any such business not properly brought before the meeting shall not be
transacted. Notwithstanding the foregoing provisions of this Section, a
shareholder shall also comply with all applicable requirements of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder with respect to the matters set forth in this Section.
2.2 Special Meetings. (a) A special meeting of the
shareholders of the corporation (a "Special Meeting") may be called only
by (i) the Chairman of the Board, (ii) the Chief Executive Officer or
(iii) the Board of Directors and shall be called by the Chairman of the
Board or the Chief Executive Officer upon the demand, in accordance with
this Section 2.2, of the holders of record 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. 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 2.4 of these Bylaws.
(b) To enable the corporation to determine the shareholders
entitled to demand a Special Meeting, the Board of Directors may fix a
record date to determine the shareholders entitled to make such a demand
(the "Demand Record Date"). The Demand Record Date shall not precede the
date 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 Sections 2.1A and 3.8A of these Bylaws.
(c) For a shareholder or shareholders to demand a Special
Meeting, a written demand or demands for a Special Meeting by the holders
of record as of the Demand Record Date of shares representing at least 10%
of all the votes entitled to be cast on each 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 2.2), 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 2.2, the Secretary receives a
written agreement signed by each Soliciting Shareholder, pursuant to which
each Soliciting Shareholder, jointly and severally, agrees to pay the
corporation's costs of holding the Special Meeting, including the costs of
preparing and mailing proxy materials for the corporation's own
solicitation, provided that if each of the resolutions introduced by any
Soliciting Shareholder at such meeting is adopted, and each of the
individuals nominated by or on behalf of any Soliciting Shareholder for
election as director at such meeting is elected, then the Soliciting
Shareholders shall not be required to pay such costs. For purposes of
this paragraph (d), the following terms shall have the meanings set forth
below:
(i) "Affiliate" of any Person shall mean any Person
controlling, controlled by or under common control with such first Person.
(ii) "Participant" shall have the meaning assigned to such term
in Rule 14a-11 promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
(iii) "Person" shall mean any individual, firm, corporation,
partnership, joint venture association, trust, unincorporated organization
or other entity.
(iv) "Proxy" shall have the meaning assigned to such term in
Rule 14a-1 promulgated under the Exchange Act.
(v) "Solicitation" shall have the meaning assigned to such term
in Rule 14a-11 promulgated under the Exchange Act.
(vi) "Soliciting Shareholder" shall mean, with respect to any
Special Meeting demanded by a shareholder or shareholders, any of the
following Persons:
(A) if the number of shareholders signing the demand or
demands of meeting delivered to the corporation pursuant to paragraph (c)
of this Section 2.2 is ten 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 2.2 is more than ten, each Person who either (I) was a
Participant in any Solicitation of such demand or demands or (II) at the
time of the delivery to the corporation of the documents described in
paragraph (c) of this Section 2.2, 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 of the corporation 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 2.2
and/or the written agreement described in this paragraph (d) in order to
prevent the purposes of this Section 2.2 from being evaded.
(e) Except as provided in the following sentence, any Special
Meeting shall be held at such hour and day as may be designated by
whichever of the Chairman of the Board, the Chief Executive Officer or the
Board of Directors shall have called such meeting. In the case of any
Special Meeting called by the Chairman of the Board or the Chief Executive
Officer upon the demand of shareholders (a "Demand Special Meeting"), such
meeting shall be held at such hour and day as may be designated by the
Board of Directors; provided, however, that the date of any Demand Special
Meeting shall be not more than 70 days after the Meeting Record Date (as
defined in Section 2.5); 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, the Chief Executive Officer or the Board of
Directors may consider such factors as he or it deems relevant within the
good faith exercise of his or its business judgment, including, without
limitation, the nature of the action proposed to be taken, the facts and
circumstances surrounding any demand for such meeting, and any plan of the
Board of Directors to call an Annual Meeting or a Special Meeting for the
conduct of related business.
(f) The corporation may engage nationally recognized
independent inspectors of elections to act as an agent of the corporation
for the purpose of promptly performing a ministerial review of the
validity of any purported written demand or demands for a Special Meeting
received by the Secretary. For the purpose of permitting the inspectors
to perform such review, no purported demand shall be deemed to have been
delivered to the corporation until the earlier of (i) five Business Days
following receipt by the Secretary of such purported demand and (ii) such
date as the independent inspectors certify to the corporation that the
valid demands received by the Secretary represent at least 10% of all the
votes entitled to be cast on each issue proposed to be considered at the
Special Meeting. Nothing contained in this paragraph shall in any way be
construed to suggest or imply that the Board of Directors or any
shareholder shall not be entitled to contest the validity of any demand,
whether during or after such five 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.
2.3 Place of Meeting. The Board of Directors, the Chairman of
the Board or the Chief Executive Officer may designate any place, either
within or without the State of Wisconsin, as the place of meeting for the
Annual Meeting, any Special Meeting or any postponement thereof. If the
Board of Directors, the Chairman of the Board or the Chief Executive
Officer shall fail or neglect to make such designation, the Secretary
shall designate the place of such meeting. If no designation is made, the
place of meeting shall be the registered office of the corporation in the
State of Wisconsin. Any adjourned meeting may be reconvened at any place
designated by vote of the Board of Directors or by the Chairman of the
Board or the Chief Executive Officer.
2.4 Notice of Meeting. The corporation shall send written or
printed notice stating the place, day and hour of any Annual Meeting or
Special Meeting not less than 10 days nor more than 70 days before the
date of such meeting either personally or by mail to each shareholder of
record entitled to vote at such meeting and to other shareholders as may
be required by law or by the Restated Articles of Incorporation. In the
event of any Demand Special Meeting, such notice of meeting shall be sent
not more than 30 days after the Delivery Date. If mailed, such notice of
meeting shall be addressed to the shareholder at the shareholder's address
as it appears on the corporation's record of shareholders. Unless
otherwise required by law or the Restated Articles of Incorporation, 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 2.2 of
these Bylaws and (ii) shall contain all of the information required in the
notice received by the corporation in accordance with Section 2.2(b) of
these Bylaws. A shareholder's attendance at a meeting, in person or by
proxy, waives objection to the following: (A) lack of notice or defective
notice of the meeting, unless the shareholder at the beginning of the
meeting or promptly upon arrival objects to holding the meeting or
transacting business at the meeting; and (B) consideration of a particular
matter at the meeting that is not within the purpose described in the
meeting notice, unless the shareholder objects to considering the matter
when it is presented.
2.5 Fixing of Certain Record Dates. (a) The Board of
Directors may fix a future date not less than 10 days and not more than 70
days prior to the date of any Annual Meeting or Special Meeting as the
record date for the determination of shareholders entitled to notice of,
or to vote at, such meeting (the "Meeting Record Date"). In the case of
any Demand Special Meeting, (i) the Meeting Record Date shall be not later
than the 30th day after the Deliver Date and (ii) if the Board of
Directors fails to fix the Meeting Record Date within 30 days after the
Delivery Date, then the close of business on such 30th day shall be the
Meeting Record Date. The shareholders of record on the Meeting Record
Date shall be the shareholders entitled to notice of and to vote at the
meeting. Except as may be otherwise provided by law, a determination of
shareholders entitled to notice of or to vote at a meeting of shareholders
is effective for any adjournment of such meeting unless the Board of
Directors fixes a new Meeting Record Date, which it shall do if the
meeting is postponed or adjourned to a date more than 120 days after the
date fixed for the original meeting.
(b) The Board of Directors may fix a future date as the record
date for the determination of shareholders entitled to receive payment of
any share dividend or distribution. If no record date is so fixed by the
board, 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.
2.6 Voting Lists. After a record date for a Special Meeting or
Annual Meeting 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. The corporation shall make the shareholders'
list available at the meeting, and any shareholder or his or her agent or
attorney may inspect the list at any time during the meeting or any
adjournment thereof. Refusal or failure to prepare or make available the
shareholders' list shall not affect the validity of any action taken at a
meeting of shareholders.
2.7 Quorum: Votes. 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 the corporation has
only one class of stock outstanding, such class shall constitute a
separate voting group for purposes of this Section 2.7. Except as
otherwise provided in the Restated Articles of Incorporation or the
Wisconsin Business Corporation Law, a majority of the votes entitled to be
cast on the matter shall constitute a quorum of the voting group for
action on that matter. Once a share is represented for any purpose at a
meeting, other than for the purpose of objecting to holding the meeting or
transacting business at the meeting, it is considered present for 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 opposing the action, unless the articles of incorporation or
the Wisconsin Business Corporation Law requires a greater number of
affirmative votes. Unless otherwise provided in the Restated Articles of
Incorporation, each director shall be elected by a plurality of the votes
cast by the shares entitled to vote in the election of directors at a
meeting at which a quorum is present.
2.8 Proxies. At all meetings of shareholders, a shareholder
entitled to vote may vote his or her shares 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.
2.9 Voting of Shares. Each outstanding share, regardless of
class, shall be entitled to one vote upon each matter submitted to a vote
at a meeting of shareholders, except to the extent that the voting rights
of the shares of any class or classes are enlarged, limited, or denied by
the Restated Articles of Incorporation of the corporation or by the
Wisconsin Business Corporation Law.
2.10 Subsidiary Shares. Shares held by another corporation, if
a sufficient number of shares entitled to elect a majority of the
directors of such other corporation is held directly or indirectly by the
corporation, shall not be entitled to vote at any meeting, but shares held
in a fiduciary capacity may be voted.
2.11 Acceptance of Instruments Showing Shareholder Action. If
the name signed on a vote, consent, waiver or proxy appointment
corresponds to the name of a shareholder, the corporation, if acting in
good faith, may accept the vote, consent, waiver or proxy appointment and
give it effect as the act of a shareholder. If the name signed on a vote,
consent, waiver or proxy appointment does not correspond to the name of a
shareholder, the corporation, if acting in good faith, may accept the
vote, consent, waiver or proxy appointment and give it effect as the act
of the shareholder if any of the following apply:
(a) The shareholder is an entity and the name signed purports
to be that of an officer or agent of the entity.
(b) The name purports to be that of a personal representative,
administrator, executor, guardian or conservator representing the
shareholder and, if the corporation requests, evidence of fiduciary status
acceptable to the corporation is presented with respect to the vote,
consent, waiver or proxy appointment.
(c) The name signed purports to be that of a receiver or
trustee in bankruptcy of the shareholder and, if the corporation requests,
evidence of this status acceptable to the corporation is presented with
respect to the vote, consent, waiver or proxy appointment.
(d) The name signed purports to be that of a pledgee,
beneficial owner, or attorney-in-fact of the shareholder and, if the
corporation requests, evidence acceptable to the corporation of the
signatory's authority to sign for the shareholder is presented with
respect to the vote, consent, waiver or proxy appointment.
(e) Two or more persons are the shareholders as co-tenants or
fiduciaries and the name signed purports to be the name of at least one of
the co-owners and the person signing appears to be acting on behalf of all
co-owners.
The corporation may reject a vote, consent, waiver or proxy appointment if
the Secretary or other officer or agent of the corporation who is
authorized to tabulate votes, acting in good faith, has reasonable basis
for doubt about the validity of the signature on it or about the
signatory's authority to sign for the shareholder.
2.12 Conduct of Meeting. The Chairman of the Board, and in his
or her absence, any officer or director designated by the Chairman of the
Board, and in his or her absence, the Chief Executive Officer, and in his
or her absence, the President, and in his or her absence, a Corporate Vice
President in the order provided under Section 4.7 of these Bylaws, and in
their absence, any person chosen by the shareholders present shall call
any Annual Meeting or Special Meeting to order and shall act as Chairman
of the Meeting, and the Secretary of the corporation shall act as
secretary of all meetings of the shareholders, but in the absence of the
Secretary, the chairman may appoint any other person to act as secretary
of the meeting.
2.13 Postponement; Adjournment.
(a) Any Annual Meeting or any Special Meeting called by the
Chairman of the Board, the Chief Executive Officer (other than a meeting
called pursuant to the demand of shareholders entitled to demand such a
meeting) or the Board of Directors may be postponed at any time or from
time to time after written notice of the meeting has been delivered to
shareholders as follows: (i) in the case of the Annual Meeting or a
Special Meeting called by the Board of Directors, by action of the Board
of Directors or a duly authorized committee thereof and (ii) in the case
of a Special Meeting called by the Chairman of the Board or the Chief
Executive Officer, at the request of the person calling the meeting and
with the consent of the Board of Directors or a duly authorized committee
thereof. Any such postponement or postponements shall be disclosed in any
public filing with the Securities and Exchange Commission or by means of a
press release to Dow Jones & Company or any similar service promptly
following such postponement, and promptly thereafter written notice of
such postponement stating the place, day and hour to which the meeting was
postponed shall be delivered to each shareholder of record entitled to
vote at such meeting.
(b) A meeting of shareholders may be adjourned to a different
date, time or place from time to time, whether or not there is a quorum,
(i) at any time, upon a resolution of shareholders if the number of votes
cast in favor of such resolution exceed the number of votes cast against
such resolution or (ii) by order of the chairman of the meeting, but only
where such order is delivered before any business is transacted at such
meeting and such adjournment is for a period of thirty (30) days or less.
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 originally noticed. Any such adjournment or
adjournments pursuant to clause (i), if the new date, time and place of
the meeting is not announced at the meeting prior to adjournment or if a
new record date is or must be fixed for the meeting, or pursuant to clause
(ii) shall be disclosed in any public filing with the Securities and
Exchange Commission or by means of a press release to Dow Jones & Company
or any similar service promptly following such adjournment, and promptly
thereafter written notice of such adjournment stating the date, time and
place to which the meeting was adjourned shall be delivered to each
shareholder of record entitled to vote at such meeting, except that
(except as may be otherwise required by law) no such disclosure in
filings, press releases or notices to shareholders shall be required if an
adjournment is for a period of forty-eight (48) hours or less.
3. BOARD OF DIRECTORS
3.1 General Powers. All corporate powers of the corporation
shall be exercised by or under the authority of, and the business and
affairs of the corporation managed under the direction of, its Board of
Directors.
3.2 Number, Tenure and Qualifications.
(a) The number of directors of the corporation shall be eleven
(11). No more than two (2) officers or employees of the corporation or any
of its subsidiaries shall simultaneously serve as directors of the corpora-
tion. The directors shall be divided into three (3) classes with the first
class to consist of three (3) directors and the second and third classes to
consist of four (4) directors each. The term of office of those of the
first class shall expire at the annual meeting to be held in January,
1984, and of the second class one year thereafter and of the third class,
two years thereafter, and in all cases, until their respective successors
shall have been elected and qualified. At the annual meetings following
the initial election of directors by classes, the successors to the class
of directors whose term expires in that year shall be elected for a term
of three (3) years to succeed those whose terms expire, so that the term
of office of one class of directors shall expire in each year, but,
subject to the provisions of the Bylaws of the corporation, each director
shall hold office for the term for which he/she is elected and until
his/her successor is elected and, if necessary, qualified or until there
is a decrease in the number of directors that takes effect upon or after
the expiration of the term for which he/she is elected.
(b) Directors need not be residents of the State of Wisconsin
or shareholders of the corporation. A director having attained age
Seventy (70) shall automatically cease to be a director of the corporation
effective as of the Annual Meeting immediately following such director's
Seventieth (70th) birthday. All directors who are also officers of the
corporation shall automatically cease to be directors of the corporation,
effective as of his/her date of termination of employment from the
corporation, with the exception of any corporate officer holding, or who
has held the position of Chief Executive Officer.
(c) A Chairman of the Board shall be elected by the Board of
Directors from among its members to preside at all meetings of the
shareholders and the Board of Directors. The Director, who need not be an
employee of the corporation, elected Chairman of the Board shall serve in
such position for the term of office as elected by the shareholders or the
Board of Directors and until his/her successor shall have been duly
elected or until his/her death or until resignation or removal in the
manner hereinafter provided. The Chairman of the Board, if an employee of
the Corporation, may be elected Chief Executive Officer of the Corporation
by the Board of Directors. The Chairman of the Board shall perform all
duties incident to the office and such other duties as may be prescribed
by the Board of Directors from time to time.
(d) All directors of the corporation, who are not
simultaneously employed as officers by the corporation, shall be properly
compensated and reimbursed for their services as a director on the basis
of an annual retainer, Board of Director and Committees of the Board
meeting attendance fees and reasonable expenses incurred as a director as
established, reviewed and approved annually by the Nominating Committee of
the Board of Directors. Any employee of the corporation, who is elected a
director of the corporation, shall not receive any compensation, expense
reimbursement or participation in director benefit programs for his/her
services as a director of the corporation. A Chief Executive Officer, who
retires from the corporation prior to attaining age 70 while serving as a
director, immediately becomes eligible for compensation, expense
reimbursement and director benefit program participation as a non-employee
director effective as of the individual's retirement date from the
corporation.
3.3 Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this Bylaw immediately
after, and at the same place as, the annual meeting of shareholders, and
each adjourned session thereof. The Board of Directors may provide, by
resolution, the time and place, either within or without the State of
Wisconsin, for the holding of additional regular meetings without other
notice than such resolution.
3.4 Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the Chairman of the Board,
Chief Executive Officer or a majority of the number of directors fixed by
Section 3.2. The person or persons authorized to call special meetings of
the Board of Directors may fix any place, either within or without the
State of Wisconsin, as the place for holding any special meeting of the
Board of Directors called by them.
3.5 Notice. Notice of any special meeting shall be given at
least five (5) days previously thereto by written notice mailed to each
director at his or her business address, or by written or oral notice
given by other means at least 48 hours previously thereto. Whenever any
notice whatever is required to be given to any director of the corporation
under the provisions of these Bylaws or under the provisions of the
Restated Articles of Incorporation or under the provisions of any statute,
a waiver thereof in writing, signed at any time, whether before or after
the time of meeting, by the director entitled to such notice and retained
by the corporation, shall be deemed equivalent to timely notice. The
attendance of a director at or participation in a meeting shall constitute
a waiver of notice of such 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. Neither the business
to be transacted at, nor the purpose of, any regular or special meeting of
the Board of Directors need be specified in the notice or waiver of notice
of such meeting.
3.6 Quorum: Votes. One-third of the number of directors fixed
by Section 3.2 shall constitute a quorum for the transaction of business
at any meeting of the Board of Directors, but though less than such quorum
is present at a meeting, a majority of the directors present may adjourn
the meeting from time to time without further notice. If a quorum is
present when a vote is taken, the affirmative vote of a majority of
directors present shall be the act of the Board of Directors, unless the
act of a greater number is required by law, by the Restated Articles of
Incorporation or these Bylaws.
3.7 Removal and Resignation. A director may be removed from
office by the affirmative vote of the holders of two-thirds of the
outstanding shares entitled to vote taken at a meeting called for that
purpose. A director may resign at any time by delivering his written
resignation to the Secretary of the corporation or to the Chairman of the
Board. A resignation is effective when the notice is received unless the
notice specifies a later effective date.
3.8 Vacancies. Any vacancy occurring in the Board of
Directors, including a vacancy created by an increase in the number of
directors, may be filled by any of the following: (i) the shareholders,
(ii) the Board of Directors or (iii) if the directors remaining in office
constitute fewer than a quorum of the Board, the directors, by the
affirmative vote of a majority of all directors remaining in office;
provided, however, that if the vacant office was held by a director
elected by a voting group of shareholders, only the holders of shares of
that voting group may vote to fill the vacancy if it is filled by the
shareholders, and only the remaining directors elected by that voting
group may vote to fill the vacancy if it is filled by the directors. The
Directors so elected shall hold office until the next succeeding election
of the class for which such director shall have been elected.
3.8A Nominations. Nominations for the election of directors may
only be made by the Board of Directors, by the Nominating Committee of the
Board of Directors (or, if none, any other committee serving a similar
function) or by any shareholder entitled to vote generally in elections of
directors where the shareholder complies with the requirements of this
Section. Any shareholder of record entitled to vote generally in
elections of directors may nominate one or more persons for election as
directors at a meeting of shareholders only if written notice of such
shareholder's intent to make such nomination or nominations has been
given, either by personal delivery or by United States certified mail,
postage prepaid, to the Secretary of the corporation that is received by
the Secretary (i) with respect to an election to be held at an Annual
Meeting, not more than ninety (90) days nor less than fifty (50) days in
advance of the third Thursday after the first Friday of the month of
January next following the last Annual Meeting held; provided, that if the
Annual Meeting is held earlier than the third Thursday after the first
Friday of the month of January, such notice must be given on or before the
later of (x) the date fifty (50) days prior to the earlier date of the
Annual Meeting and (y) the date ten (10) business days after the first
public disclosure, which may include any public filing with the Securities
and Exchange Commission or a press release to Dow Jones & Company or any
similar service, of the earlier date of the Annual Meeting, and (ii) with
respect to an election to be held at a Special Meeting as to which notice
of such meeting states that it is to be held for the election of
directors, not earlier than ninety (90) days prior to such Special Meeting
and not later than the close of business on the later of (x) the tenth
(10th) business day following the date on which notice of such meeting is
first given to shareholders and (y) the 50th day prior to such Special
Meeting. Each such notice of a shareholder's intent to nominate a
director or directors at an Annual Meeting or Special Meeting shall set
forth the following: (A) the name and address, as they appear on the
corporation's books, of the shareholder who intends to make the nomination
and of the beneficial owner or owners, if any, on whose behalf the
nomination is to be made and the name and residence address of the person
or persons to be nominated; (B) the class and number of shares of the
corporation which are beneficially owned by the shareholder and beneficial
owner or owners; (C) a representation that the shareholder is a holder of
record of stock of the corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice; (D) a description of all
arrangements or understandings between the shareholder and/or beneficial
owner or owners and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or nominations
are to be made by the shareholders; (E) such other information regarding
each nominee proposed by such shareholder as would be required to be
disclosed in solicitations of proxies for election of directors, or would
be otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended, 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 (F) 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. No person shall be eligible to serve as a director of the
corporation unless nominated in accordance with the procedures set forth
in this By-law. If the chairman of the shareholders meeting shall
determine that a nomination was not made in accordance with the procedures
prescribed by the By-laws, he shall so declare to the meeting and the
defective nomination shall be disregarded. Notwithstanding the foregoing
provisions of this Section 3.8A, a shareholder shall also comply with all
applicable requirements of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder with respect to the
matters set forth in this Section.
3.9 Compensation. The Board of Directors, irrespective of any
personal interest of any of its members, may establish compensation of all
directors for services to the corporation as directors, officers or
otherwise, or may delegate such authority to an appropriate committee.
3.10 Presumption of Assent. A director of the corporation who
is present and is announced as present at a meeting of the Board of
Directors or a committee thereof of which he/she is a member at which
action on any corporate matter is taken assents to the action taken,
unless any of the following occurs: (i) the director objects at the
beginning of the meeting or promptly upon his or her arrival to the
holding of the meeting or transacting business at the meeting; (ii) the
director's dissent or abstention from the action taken is entered in the
minutes of the meeting; or (iii) the director delivers written notice of
his or her dissent or abstention to the presiding officer of the meeting
before its adjournment or to the corporation immediately after adjournment
of the meeting. Such right to dissent or abstain shall not apply to a
director who voted in favor of such action.
3.11 Committees. The Board of Directors by resolution approved
by a majority of all directors then in office may designate one or more
committees, each committee to consist of two or more directors appointed
by the Board of Directors, which to the extent provided in said
resolution, as initially adopted, and as thereafter supplemented or
amended by further resolution adopted by a like vote, shall have and may
exercise, when the Board of Directors is not in session, the authority of
the Board of Directors in the management of the business and affairs of
the corporation, except that a committee may not do any of the following:
(a) authorize distributions; (b) approve or propose to shareholders action
that the Wisconsin Business Corporation Law requires shareholders to
approve; (c) fill vacancies on the Board of Directors or, unless the Board
of Directors provides by resolution that any vacancies on a committee
shall be filled by the affirmative vote of a majority of the remaining
committee members, on any of its committees; (d) amend the corporation's
Restated Articles of Incorporation; (e) adopt, amend or repeal bylaws; (f)
approve a plan of merger not requiring shareholder approval; (g) authorize
or approve reacquisition of shares, except according to a formula or
method prescribed by the Board of Directors; and (h) authorize or approve
the issuance or sale or contract for sale of shares, or determine the
designation and relative rights, preferences and limitations of a class or
series of shares, except that the Board of Directors may authorize a
committee to do so within limits prescribed by the Board of Directors.
All members of the Board of Directors not appointed to serve as members of
a committee designated by the Board of Directors shall be deemed
designated to serve as alternates for such committee, any one of whom may
take the place of any absent member or members at any meeting of such
committee, upon request of the Chairman of the Board. Subject to any
provision of law and these Bylaws, each such committee shall fix its own
rules governing the conduct of its activities and shall make such reports
to the Board of Directors of its activities as the Board of Directors may
request. Unless otherwise provided by the Board of Directors in creating
the committee, a committee may employ counsel, accountants and other
consultants to assist it in the exercise of its authority.
3.12 Informal Action Without Meeting. Any action required or
permitted by the Restated Articles of Incorporation or Bylaws or any
provision of law to be taken by the Board of Directors or a committee at a
meeting may be taken without a meeting if the action is taken by all
members of the Board or of the committee. The action shall be evidenced
by one or more written consents describing the action taken, signed by
each director or committee member and retained by the corporation. Such
action shall be effective when the last director or committee member signs
the consent, unless the consent specifies a different effective date.
3.13 Telephonic Meetings. Notwithstanding any place set forth
in the notice of the meeting or these Bylaws, members of the Board of
Directors may participate in regular or special meetings of the Board of
Directors and all Committees of the Board of Directors by or through the
use of any means of communication by which all directors participating may
simultaneously hear each other, such as by conference telephone; provided,
however, that the Chairman of the Board or the chairman of the respective
Committee of the Board or other person or persons calling a meeting may
determine that the directors cannot participate by such means, in which
case the notice of the meeting, or other notice to directors given prior
to the meeting, shall state that each director's physical presence shall
be required. If a meeting is conducted through the use of such means,
then at the commencement of such meeting all participating directors shall
be informed that a meeting is taking place at which official business may
be transacted. A director participating in a meeting by such means shall
be deemed present in person at such meeting. If action is to be taken at
any such Board of Directors or Committee meeting on any of the following
matters, then the identity of each director participating in such a
meeting must be verified by the disclosure of each director's social
security number to the secretary of the meeting or in such other manner as
the chairman of the meeting deems reasonable under the circumstances
before a vote may be taken on any of such matters: (i) a plan of merger
or share exchange; (ii) a sale, lease, exchange or other disposition of
substantial property or assets of the corporation; (iii) a voluntary
dissolution or the revocation of voluntary dissolution proceedings; or
(iv) a filing for bankruptcy. For purposes of the preceding clause (ii),
the phrase "sale, lease, exchange or other disposition of substantial
property or assets" shall mean any sale, lease, exchange or other
disposition of property or assets of the corporation having a net book
value equal to 10% or more of the net book value of the total assets of
the corporation as of the close of the fiscal year last ended prior to the
date of such meeting and as to which financial statements of the
corporation have been prepared.
4. OFFICERS
4.1 Number.
(a) The principal executive officers of the corporation shall
be a Chief Executive Officer, a President, one or more Corporate Vice
Presidents, one or more of whom may be designated Executive Vice President
and/or Senior Vice President, a Secretary, a Treasurer, a Controller and
divisional presidents, each of whom shall be elected by the Board of
Directors or, to the extent authorized by the Board of Directors, by the
Chief Executive Officer. All other officers, other designated divisional
or staff officers, and all assistant officers (including one or more
Assistant Secretaries and/or Assistant Treasurers) shall be appointed by
the Chief Executive Officer as he or she deems necessary. Any two or more
offices may be held by the same person.
(b) The duties of the executive officers shall be those
enumerated herein and any further duties designated by the Board of
Directors. The duties herein specified for particular officers may be
transferred to and vested in such other officers as the Board of Directors
shall elect from time to time and for such periods or without limitation
as to time as the Board shall order.
(c) The duties and powers of all appointed officers shall be
those specifically prescribed for the position(s) by the Chief Executive
Officer at the time of appointment.
4.2 Election and Term of Office.
(a) The officers of the corporation to be elected by the Board
of Directors shall be elected annually by the Board of Directors at the
first meeting of the Board of Directors held after each annual meeting of
the shareholders. If the election of officers shall not be held at such
meeting, such election shall be held as soon thereafter as convenient.
Each officer shall hold office until his/her successor shall have been
duly elected or until his/her death or until he/she shall resign or shall
have been removed in the manner hereinafter provided.
(b) A vacancy in any elected office because of death,
resignation, removal, disqualification or otherwise may be filled by the
Board of Directors for the unexpired portion of the term.
(c) The Chief Executive Officer shall have authority to appoint
and to terminate the appointment of all divisional staff and assistant
officers from time to time and for such periods of time as serve the best
interests of the corporation.
4.3 Removal. The Board of Directors may remove any officer or
agent at any time, with or without cause and notwithstanding the contract
rights, if any, of the officer or agent removed. Election or appointment
shall not of itself create contract rights.
4.4 Resignation. An officer may resign at any time by
delivering written notice to the Secretary of the corporation. The
resignation is effective when the notice is delivered, unless the notice
specifies a later effective date and the corporation accepts the later
effective date.
4.5 The Chief Executive Officer. The Chief Executive Officer,
subject to the control of the Board of Directors, shall supervise and
control all of the business and affairs of the corporation. He or she
shall, in the absence of the Chairman of the Board, preside at all
meetings of the stockholders and directors. He or she shall have
authority, subject to such rules as may be prescribed by the Board of
Directors, to appoint certain officers and such agents and employees of
the corporation as he or she shall deem necessary, to prescribe their
powers, duties and compensation, and to delegate authority to them. Such
appointed officers, agents and employees shall hold office at the
discretion of the Chief Executive Officer. He or she shall have authority
to sign, execute and acknowledge, on behalf of the corporation, all deeds,
mortgages, bonds contracts, leases, reports and all other documents or
instruments necessary or proper to be executed in the course of the
corporation's regular business, or which shall be authorized by the Board
of Directors; and except as otherwise provided by law or the Board of
Directors, he or she may authorize any other officer or agent of the
corporation to sign, execute and acknowledge such documents or instruments
in his or her place and stead. In general, he or she 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.
4.6 The President. The President shall be the chief operating
officer of the corporation. He or she shall have the authority to sign
all stock certificates, contracts, and other instruments of the
corporation necessary or proper to be executed in the course of the
corporation's regular business, or which shall be authorized by the Board
of Directors, and shall perform all duties as are incident to his or her
office or are properly required of him or her by the Board of Directors,
the Chairman of the Board or the Chief Executive Officer. He or she shall
have the authority, subject to such rules, directions, or orders as may be
prescribed by the Chairman of the Board, the Board of Directors or the
Chief Executive Officer, to appoint and terminate the appointment of such
agents and employees of the corporation as he or she shall deem necessary,
to prescribe their power, duties and compensation and to delegate
authority to them.
4.7 Corporate Vice Presidents. At the time of election, one or
more of the Corporate Vice Presidents may be designated Executive Vice
President and/or Senior Vice President. In the absence of the President
or in the event of his or her death, inability or refusal to act, or in
the event for any reason it shall be impracticable for the President to
act personally, the Executive Vice President, or in the event of his or
her inability to act, the Senior Vice Presidents in the order designated
at the time of their election, or in the absence of any such designation,
then in the order of their election, or in the event of their inability to
act, then the other Corporate Vice Presidents in the order designated at
the time of their election, or in the absence of any such designation,
then in the order of their election, shall perform the duties of the
President and when so acting shall have all the powers of and be subject
to all the restrictions upon the President. Any Corporate Vice President
may sign, with the Secretary or Assistant Secretary, certificates for
shares of the corporation and shall perform such other duties as from time
to time may be assigned to him or her by the Chairman of the Board, the
Chief Executive Officer or the Board of Directors.
4.8 The Secretary. The Secretary shall: (a) keep as permanent
records any of the following that has been prepared: the minutes of the
shareholders' and of the Board of Directors' meetings; records of actions
taken by the Board of Directors without a meeting; and records of actions
taken by a Committee of the Board of Directors in place of the Board of
Directors and on behalf of the corporation; (b) see that all notices are
duly given in accordance with the provisions of these Bylaws or as
required by law; (c) be custodian of the corporate records and of the seal
of the corporation and see that the seal of the corporation is affixed to
all documents the execution of which on behalf of the corporation under
its seal is duly authorized; (d) maintain or cause an authorized agent to
maintain a record of the corporation's shareholders, in a form that
permits preparation of a list of the names and addresses of all
shareholders, by class or series of shares and showing the number and
class or series of shares held by each shareholder; (e) in general perform
all duties incident to the office of Secretary and such other duties as
from time to time may be assigned to him or her by the Chief Executive
Officer or by the Board of Directors.
4.9 The Treasurer. If required by the Board of Directors, the
Treasurer shall give a bond for the faithful discharge of his or her
duties in such sum and with such surety or sureties as the Board of
Directors shall determine. He or she shall: (a) have charge and custody
of and be responsible for all funds and securities of the corporation,
receive and give receipts for moneys due and payable to the corporation
from any source whatsoever, and deposit all such moneys in the name of the
corporation in such banks, trust companies or other depositaries as shall
be selected in accordance with the provisions of Section 5 of these
Bylaws; and (b) 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 or her by the Chief Executive Officer or by the Board of
Directors.
4.10 The Controller. The Controller shall be the chief
accounting officer of the corporation. He or she shall: (a) maintain
appropriate accounting records for the corporation; (b) cause regular
audits of these accounting records to be made; and (c) in general perform
all of the duties incident to the office of Controller and such other
duties as from time to time may be assigned to him or her by the Chief
Executive Officer or by the Board of Directors.
4.11 Salaries.
(a) The salaries of the elected officers shall be fixed from
time to time by the Board of Directors or by an appropriate committee of
the Board of Directors and no such officer shall be prevented from
receiving such salary by reason of the fact that he or she is also a
Director of the corporation.
(b) The salaries of all divisional staff and assistant
officers, appointed by the Chief Executive Officer, shall be set by the
Chief Executive Officer from time to time, in the best interests of the
corporation.
5. CONTRACTS, LOANS, CHECKS AND DEPOSITS
5.1 Contracts. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or
execute and deliver any instrument in the name of and on behalf of the
corporation, and such authorization may be general or confined to specific
instances.
5.2 Loans. No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name
unless authorized by or under the authority of a resolution of the Board
of Directors. Such authorization may be general or confined to specific
instances.
5.3 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 resolution of
the Board of Directors.
5.4 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 the Board of Directors.
6. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.1 Certificates for Shares. Certificates representing shares
of the corporation shall be in such form as shall be determined by the
Board of Directors. Such certificates shall be signed by the Chairman,
Chief Executive Officer, President or Vice President-Finance and by the
Secretary or an Assistant Secretary. All certificates for shares shall be
consecutively numbered or otherwise identified. The name and address of
the person to whom the shares represented thereby are issued, with the
number of shares and the date of issue, shall be entered on the stock
transfer books of the corporation. All certificates surrendered to the
corporation for transfer shall be entered on the stock transfer books of
the corporation. All certificates surrendered to the corporation for
transfer shall be cancelled and no new certificates shall be issued until
the former certificate for a like number of shares shall have been
surrendered and cancelled, except that in case of a lost, destroyed or
mutilated certificate a new one may be issued therefor upon such terms and
indemnity to the corporation as the Board of Directors may prescribe.
6.2 Uncertificated Shares. The Board of Directors may
authorize the issuance of any shares of any of the corporation's classes
or series without certificates. The authorization does not affect shares
already represented by certificates until the certificates are surrendered
to the corporation.
6.3 Transfer of Shares. Transfer of shares of the corporation
shall be made only on the stock transfer books of the corporation by the
holder of record thereof or by his or her legal representative, who shall
furnish proper evidence of authority to transfer, or by his or her
attorney thereunto authorized by power of attorney duly executed and filed
with the Secretary of the corporation, and on surrender for cancellation
of the certificate for such shares. The person in whose name shares stand
on the books of the corporation shall be deemed by the corporation to be
the owner thereof for all purposes.
6.4 Stock Regulations. The Board of Directors shall have the
power and authority to make all such rules and regulations not
inconsistent with the statutes of the State of Wisconsin as they may deem
expedient concerning the issue, transfer and registration of certificates
representing shares of the corporation, including the appointment or
designation of one or more stock transfer agents and one or more stock
registrars.
7. GENERAL
7.1 Limited Liability of Directors to Corporation and
Shareholders. A director is not liable to the corporation, its
shareholders, or any person asserting rights on behalf of the corporation
or its shareholders, for damages, settlements, fees, fines, penalties or
other monetary liabilities arising from a breach of, or failure to
perform, any duty resulting solely from his or her status as a director,
unless the person asserting liability proves that the breach or failure to
perform constitutes any of the following:
(a) A willful failure to deal fairly with the corporation or
its shareholders in connection with a matter in which the director has a
material conflict of interest.
(b) A violation of criminal law, unless the director had
reasonable cause to believe his or her conduct was lawful, or no
reasonable cause to believe his or her conduct was unlawful.
(c) A transaction from which the director derived an improper
personal profit.
(d) Willful misconduct.
7.2 Indemnification.
(a) A corporation shall indemnify a director or officer, to the
extent he or she has been successful on the merits or otherwise in the
defense of a proceeding, for all reasonable expenses incurred in the
proceeding if the director or officer was a party because he or she is a
director or officer of the corporation.
(b) In cases not included under the foregoing paragraph, a
corporation shall indemnify a director or officer against liability
incurred by the director or officer in a proceeding to which the director
or officer was a party because he or she is a director or officer of the
corporation, unless liability was incurred because the director or officer
breached or failed to perform a duty he or she owes to the corporation and
the breach or failure to perform constitutes any of the following:
1. A willful failure to deal fairly with the corporation or
its shareholders in connection with a matter in which the director or
officer has a material conflict of interest.
2. A violation of criminal law, unless the director or officer
had reasonable cause to believe his or her conduct was lawful or no
reasonable cause to believe his or her conduct was unlawful.
3. A transaction from which the director or officer derived an
improper personal profit.
4. Willful misconduct.
(b) Determination of whether indemnification is required under
this subsection shall be made under Wis. Stats. 180.0855.
(c) The termination of a proceeding by judgment, order,
settlement or conviction, or upon a plea of no contest or an equivalent
plea, does not, by itself, create a presumption that indemnification of
the director or officer is not required under this subsection.
(d) A director or officer who seeks indemnification under this
section shall make a written request to the corporation.
(e) Indemnification under this section is not required if the
director or officer has previously received indemnification or allowance
of expenses from any person, including the corporation, in connection with
the same proceeding.
7.3 Reliance by Directors and Officers.
(a) Unless a director or officer has knowledge that makes
reliance unwarranted, a director or officer, in discharging his or her
duties to the corporation, may rely on information, opinions, reports or
statements, any of which may be written or oral, formal or informal,
including financial statements and other financial data, if prepared or
presented by any of the following:
1. An officer or employee of the corporation whom the director
or officer believes in good faith to be reliable and competent in the
matters presented.
2. Legal counsel, public accountants or other persons as to
matters the director or officer believes in good faith are within the
person's professional or expert competence.
3. In the case of reliance by a director, a committee of the
board of directors of which the director is not a member if the director
believes in good faith that the committee merits confidence.
7.4 Consideration of Interests in Addition to Shareholders'
Interests. In discharging his or her duties to the corporation and in
determining what he or she believes to be in the best interests of the
corporation, a director or officer may, in addition to considering the
effects of any action on shareholders, consider the following:
(a) The effects of the action on employees, suppliers and
customers of the corporation.
(b) The effects on the action on communities in which the
corporation operates.
(c) Any other factors the director or officer considers
pertinent.
7.5 Insurance. The corporation may purchase and maintain
insurance on behalf of an individual who is an employee, agent, director
or officer of the corporation against liability asserted against or
incurred by the individual in his or her capacity as an employee, agent,
director or officer or arising from his or her status as an employee,
agent, director or officer, regardless of whether the corporation is
required or authorized to indemnify or allow expenses to the individual
against the same liability under Wis. Stats. 180.0851, 180.0853, 180.0856
and 180.0858.
7.6 General.
(a) Except as limited by law, the indemnification and allowance
of expenses provided by Sections 7.1 through 7.5 of this Article do not
preclude any additional right to indemnification or allowance of expenses
that a director, officer or employee may have under any written agreement
between such person and the corporation, resolution of the Board or
resolution adopted by the corporation's shareholders.
(b) For purposes of this article, the definitions contained in
Wis. Stat. 180.0850 are incorporated herein by this reference. The term
"employee" shall mean a natural person who is or was an employee of the
corporation or who, while an employee of the corporation, is or was
serving at the corporation's request as a director, officer, partner,
committee, employee or agent of another corporation, partnership, joint
venture, trust, or other enterprise, and, unless the context requires
otherwise, the estate or personal representative of the employee.
(c) The corporation, by its Board of Directors, may indemnify
under Section 7.2, or with any limitations, any employee or former
employee of the corporation with respect to any action taken or not taken
in his/her capacity as or while an employee. Notwithstanding the
foregoing, the corporation shall indemnify an employee who is not a
director or officer of the corporation, to the extent that he or she has
been successful on the merits or otherwise in defense of a proceeding, for
all expenses incurred in the proceeding if the employee was a party
because he or she was an employee of the corporation.
7.7 Fiscal Year. The fiscal year of the corporation shall end
on September 30 of each year, commencing September 30, 1961.
7.8 Seal. The Board of Directors shall provide a corporate
seal which shall be circular in form and shall have inscribed thereon the
name of the corporation and the words "Corporate Seal, Wisconsin".
7.9 Notices. Except as otherwise required by law or these
Bylaws, any notice required to be given by these Bylaws may be given
orally or in writing and notice may be communicated in person, by
telephone, telegraph, teletype, facsimile or other form of wire or
wireless communication, or by mail or private carrier. Except where these
Bylaws require a notice to be delivered to or received by the recipient of
the notice, written notice required to be given by these Bylaws is
effective, if communicated (a) by mail, when deposited in the United
States mail, if mailed postpaid and correctly addressed, (b) by private
carrier, when delivered to the carrier and (c) by telegram, when the
telegram is delivered to the telegraph company.
7.10 No Nominee Procedures. The corporation has not
established, and nothing contained 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
Statutes.
8. AMENDMENTS
8.1 Power to Amend and Repeal. Except as may be limited
pursuant to Section 8.2, these Bylaws may be amended or repealed, and new
Bylaws may be adopted, either by the shareholders at any meeting, or by
vote of a majority of the shares present or represented thereat, or by the
Board of Directors by a vote of a majority of the Board; except that
Sections 2.2, 2.7, 3.2, 3.7, 3.8, 8.1, and 8.2 of the Bylaws may be
amended only by the affirmative vote of the holders of two-thirds of the
outstanding shares entitled to vote thereon or by the affirmative vote of
a majority of the directors. Except as may be limited pursuant to Section
8.2, the Board of Directors shall have the power to amend or repeal any
Bylaw adopted by the shareholders, and any Bylaw adopted by the Board of
Directors shall be subject to amendment or repeal by the shareholders as
well as by the directors.
8.2 Restrictions on Amendment and Repeal.
(a) The Board of Directors shall have no power to amend or
repeal any Bylaw or amendment adopted by the shareholders which contains a
specific provision to the effect that such Bylaw or amendment shall not be
subject to amendment or repeal by the Board of Directors.
(b) No amendment or repeal of these Bylaws by the shareholders
at any meeting shall be effective unless the notice of such meeting shall
have set forth the general nature of the proposed amendment or repeal.