Exhibit 3.2
B Y L A W S
OF
PSB HOLDINGS, INC.
TABLE OF CONTENTS
Page
BYLAW I. IDENTIFICATION .................................... 1
Section 1.01. NAME ..................................... 1
Section 1.02. PRINCIPAL AND BUSINESS OFFICES ........... 1
Section 1.03. REGISTERED AGENT AND OFFICE .............. 1
Section 1.04. PLACE OF KEEPING CORPORATE RECORDS ....... 1
BYLAW II. SHAREHOLDERS ..................................... 1
Section 2.01. ANNUAL MEETING ........................... 1
Section 2.02. SPECIAL MEETINGS ......................... 1
Section 2.03. PLACE OF MEETING ......................... 2
Section 2.04. NOTICE OF MEETING ........................ 2
Section 2.05. WAIVER ................................... 2
Section 2.06. FIXING OF RECORD DATE .................... 2
Section 2.07. VOTING LIST .............................. 3
Section 2.08. QUORUM AND VOTING REQUIREMENTS ........... 3
Section 2.09. CONDUCT OF MEETINGS ...................... 4
Section 2.10. PROXIES .................................. 4
Section 2.11. VOTING OF SHARES ......................... 4
Section 2.12. VOTING OF SHARES BY CERTAIN HOLDERS ...... 4
BYLAW III. BOARD OF DIRECTORS .............................. 6
Section 3.01. GENERAL POWERS ........................... 6
Section 3.02. NUMBER, TENURE AND QUALIFICATIONS ........ 6
Section 3.03. ELECTION ................................. 6
Section 3.04. REGULAR MEETINGS ......................... 6
Section 3.05. SPECIAL MEETINGS ......................... 6
Section 3.06. MEETINGS BY ELECTRONIC MEANS OF
COMMUNICATION ............................. 7
Section 3.07. MANNER OF ACTING ......................... 7
Section 3.08. QUORUM ................................... 7
Section 3.09. VACANCIES ................................ 8
Section 3.10. NOTICE OF MEETINGS; WAIVER ............... 8
Section 3.11. CONDUCT OF MEETINGS ...................... 8
Section 3.12. COMPENSATION AND EXPENSES ................ 9
Section 3.13. DIRECTORS' ASSENT ........................ 9
Section 3.14. COMMITTEES ............................... 9
Section 3.15. ACTION WITHOUT A MEETING ................. 10
BYLAW IV. OFFICERS ......................................... 10
Section 4.01. NUMBER AND TITLES ........................ 10
Section 4.02. ELECTION AND TERM OF OFFICE .............. 10
Section 4.03. ADDITIONAL OFFICERS, AGENTS, ETC ......... 11
Section 4.04. REMOVAL .................................. 11
Section 4.05. RESIGNATIONS ............................. 11
Section 4.06. VACANCIES ................................ 11
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Section 4.07. POWERS, AUTHORITY AND DUTIES ............. 11
Section 4.08. THE CHAIRMAN OF THE BOARD ................ 12
Section 4.09. THE PRESIDENT ............................ 12
Section 4.10. THE VICE PRESIDENTS ...................... 12
Section 4.11. THE SECRETARY ............................ 13
Section 4.12. THE TREASURER ............................ 13
Section 4.13. ASSISTANT SECRETARIES AND ASSISTANT
TREASURERS ............................... 14
BYLAW V. CONTRACTS, LOANS, CHECKS AND DEPOSITS ............ 14
Section 5.01. CONTRACTS ................................ 14
Section 5.02. LOANS .................................... 14
Section 5.03. CHECKS, DRAFTS, ETC ...................... 15
Section 5.04. DEPOSITS ................................. 15
BYLAW VI. VOTING OF SECURITIES OWNED BY THIS CORPORATION ... 15
Section 6.01. AUTHORITY TO VOTE ........................ 15
Section 6.02. PROXY AUTHORIZATION ...................... 15
BYLAW VII. CONTRACTS BETWEEN THIS CORPORATION
AND RELATED PERSONS .................. 15
BYLAW VIII. CERTIFICATES FOR SHARES AND THEIR TRANSFER ..... 16
Section 8.01. CERTIFICATES FOR SHARES .................. 16
Section 8.02. FACSIMILE SIGNATURES ..................... 17
Section 8.03. SIGNATURE BY FORMER OFFICER .............. 17
Section 8.04. CONSIDERATION FOR SHARES ................. 17
Section 8.05. TRANSFER OF SHARES ....................... 17
Section 8.06. LOST, DESTROYED OR STOLEN CERTIFICATES ... 17
Section 8.07. STOCK REGULATIONS ........................ 18
BYLAW IX. DISTRIBUTIONS .................................... 18
BYLAW X. INDEMNIFICATION ................................... 18
BYLAW XI. FISCAL YEAR ...................................... 26
BYLAW XII. SEAL ............................................ 26
BYLAW XIII. AMENDMENTS ..................................... 26
Section 13.01. BY SHAREHOLDERS ......................... 26
Section 13.02. BY DIRECTORS ............................ 26
Section 13.03. IMPLIED AMENDMENTS ...................... 26
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B Y L A W S
OF
PSB HOLDINGS, INC.
BYLAW I. IDENTIFICATION
Section 1.01. NAME. The name of the corporation is PSB Holdings,
Inc. (the "corporation").
Section 1.02. PRINCIPAL AND BUSINESS OFFICES. The corporation may
have such principal and other business offices as the Board of Directors
may designate or as the corporation's business may require from time to
time.
Section 1.03. REGISTERED AGENT AND OFFICE. The corporation's
registered agent may be changed from time to time by the corporation or by
the Board of Directors. The address of the corporation's registered
office may be changed from time to time by the corporation, by the Board
of Directors or by the registered agent. The business office of the
corporation's registered agent shall be identical to the registered
office. The corporation's registered office may be, but need not be,
identical with the corporation's principal office in the state of
Wisconsin.
Section 1.04. PLACE OF KEEPING CORPORATE RECORDS. The records and
documents specified in Section 180.1601, Wisconsin Statutes, shall be kept
at the corporation's principal office.
BYLAW II. SHAREHOLDERS
Section 2.01. ANNUAL MEETING. The annual shareholders meeting shall
be held in the month of April of each year, at such time and place, either
in or outside the state of Wisconsin, as may be designated by the Board of
Directors, for the purpose of electing directors and for the transaction
of such other business as may come before the meeting; provided, however,
that if not so designated, the annual meeting shall be held on the third
Tuesday in April in each year.
Section 2.02. SPECIAL MEETINGS. Special shareholders' meetings may
be called by: (a) the chairman of the board; (b) the president; (c) the
Board of Directors or by such other officer(s) as it may authorize from
time to time; or (d) the president or secretary upon the written request
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of the holders of record of at least 10% of all the votes entitled to be
cast upon the matter(s) set forth as the purpose of the meeting in such
written request. Upon delivery to the president or secretary of a written
request pursuant to (d), above, stating the purpose(s) of the requested
meeting, dated and signed by the person(s) entitled to request such a
meeting, it shall be the duty of such officer to whom the request is
delivered to give notice of the meeting to shareholders. Notice of any
special meetings shall be given in the same manner provided in
Section 2.04 of these Bylaws. Only business within the purpose described
in this special meeting notice shall be conducted at a special
shareholders' meeting.
Section 2.03. PLACE OF MEETING. The Board of Directors may designate
any place, either in or outside the state of Wisconsin, as the place of
meeting for any annual or special meeting. If no designation is made by
the Board of Directors, the place of meeting shall be the corporation's
principal office.
Section 2.04. NOTICE OF MEETING. The corporation shall notify each
shareholder who is entitled to vote at the meeting, of the date, time and
place of each annual or special shareholders' meeting. In the case of
special meetings, the notice shall also contain the purpose of such
special meeting. The meeting notice shall be given not less than 10 days
nor more than 60 days before the meeting date. Notice of a meeting must
be sent by mail to the shareholder's address shown in the corporation's
current record of shareholders.
Section 2.05. WAIVER. Notice of any shareholders' meeting may be
waived by a shareholder, before or after the date and time stated in the
notice. The waiver must be in writing, contain the same information that
would have been required in the notice (except the time and place of the
meeting need not be stated), be signed by the shareholder, and be
delivered to the corporation for inclusion in the corporate records.
Section 2.06. FIXING OF RECORD DATE. For the purpose of determining
shareholders of any voting group entitled to notice of or to vote at any
meeting of shareholders, or shareholders entitled to receive payment of
any distribution or dividend, or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors may fix
a future date as the record date. Such record date shall not be more than
70 days prior to the date on which the particular action, requiring such
determination of shareholders, is to be taken. If no record date is so
fixed by the board, the record date for determination of such shareholders
shall be at the close of business on:
(a) With respect to the payment of a share dividend, the date
the board authorizes the share dividend;
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(b) With respect to a distribution to shareholders (other than
one involving a repurchase or reacquisition of shares), the date the board
authorizes the distribution; or
(c) With respect to any other matter for which such a
determination is required, as provided by law.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, such determination
shall apply to any adjournment thereof unless the Board of Directors fixes
a new record date which it must do if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
Section 2.07. VOTING LIST. After fixing a record date for a meeting,
the corporation shall prepare a list of the names of all of its
shareholders who are entitled to notice of a shareholders' meeting. The
list shall be arranged by class or series of shares and show the address
of and number of shares held by each shareholder. The corporation shall
make the shareholders' list 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 the 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 agent or attorney may inspect the list at any time during the
meeting or any adjournment.
Section 2.08. QUORUM AND VOTING REQUIREMENTS. Except as otherwise
provided by the articles of incorporation, these Bylaws, or any provision
of Chapter 180, a majority of the shares entitled to vote on all matters
to be voted on at the shareholders' meeting, represented in person or by
proxy, shall constitute a quorum. If a quorum is present, action on a
matter is approved if the number of votes in favor of the action is
greater than the number of votes against, unless the vote of a greater
number of the voting group is required by the articles of incorporation,
these Bylaws, or any provision of Chapter 180. Amendment of the articles
of incorporation requires the affirmative vote of two-thirds of all voting
groups of this corporation in addition to any other vote required by any
provision of Chapter 180. Even though less than a quorum is represented,
a majority of the shares represented at the meeting may adjourn the
meeting without further notice. At the adjourned meeting at which a
quorum shall be represented, any business may be transacted that might
have been transacted at the meeting as originally notified.
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Section 2.09. CONDUCT OF MEETINGS. The president, and in his
absence, the chairman of the board and, in their respective absences, any
person chosen by the shareholders present shall call the meeting of the
shareholders to order and shall act as chairman of the board of the
meeting. The corporation's secretary shall act as secretary of all
meetings of the shareholders, but, in his absence, the presiding officer
may appoint any assistant secretary or other person to act as secretary of
the meeting.
Section 2.10. PROXIES. At all shareholders' meetings, a shareholder
entitled to vote may vote in person or by proxy appointed in writing by
the shareholder or by his duly authorized attorney-in-fact. A proxy shall
become effective when received by the secretary or other officer or agent
of the corporation authorized to tabulate votes. Unless otherwise
provided in the proxy, a proxy may be revoked at any time before it is
voted, either by written notice filed with the secretary or other officer
or agent of the corporation authorized to tabulate votes, or by oral
notice given by the shareholder during the meeting. The presence of a
shareholder who has filed his proxy shall not of itself constitute a
revocation. No proxy shall be valid after 11 months from the date of its
execution, unless otherwise provided in the proxy. The Board of Directors
shall have the power and authority to make rules establishing presumptions
as to the validity and sufficiency of proxies.
Section 2.11. VOTING OF SHARES. Each outstanding share shall be
entitled to one vote upon each matter submitted to a vote at a
shareholders' meeting, except to the extent that the voting rights of the
shares of any class or classes are enlarged, limited or denied by the
articles of incorporation or as otherwise required by Chapter 180.
Section 2.12. VOTING OF SHARES BY CERTAIN HOLDERS.
(a) OTHER CORPORATIONS. Shares standing in another
corporation's name may be voted either in person or by proxy, by the other
corporation's president or any other officer appointed by the president.
A proxy executed by any principal officer of the other corporation or such
an officer's assistant shall be conclusive evidence of the signer's
authority to act, in the absence of express notice to this corporation,
given in writing to this corporation's secretary, or other officer or
agent of the corporation authorized to tabulate votes, of the designation
of some other person by the corporation's Board of Directors or Bylaws.
(b) LEGAL REPRESENTATIVES AND FIDUCIARIES. Shares held by an
administrator, executor, guardian, conservator, trustee in bankruptcy,
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receiver, or assignee for creditors, in a fiduciary capacity, may be voted
by the fiduciary, either in person or by proxy, without transferring the
shares into his name, provided that there is filed with the secretary,
before or at the time of the meeting, proper evidence of his incumbency
and the number of shares held. Shares standing in a fiduciary's name may
be voted by him, either in person or by proxy. A proxy executed by a
fiduciary shall be conclusive evidence of the fiduciary's authority to
give such proxy, in the absence of express notice to the corporation,
given in writing to the corporation's secretary, or other officer or agent
of the corporation authorized to tabulate votes, that this manner of
voting is expressly prohibited or otherwise directed by the document
creating the fiduciary relationship.
(c) PLEDGEES. A shareholder whose shares are pledged shall be
entitled to vote the shares until they have been transferred into the
pledgee's name, and thereafter the pledgee shall be entitled to vote the
shares so transferred.
(d) MINORS. Shares held by a minor may be voted by the minor in
person or by proxy, and no such vote shall be subject to disaffirmance or
avoidance unless before the vote the corporation's secretary, or other
officer or agent of the corporation authorized to tabulate votes, has
received written notice or has actual knowledge that the shareholder is a
minor.
(e) INCOMPETENTS AND SPENDTHRIFTS. Shares held by an
incompetent or spendthrift may be voted by the incompetent or spendthrift
in person or by proxy, and no such vote shall be subject to disaffirmance
or avoidance unless before the vote the corporation's secretary, or other
officer or agent of the corporation authorized to tabulate votes, has
actual knowledge that the shareholder has been adjudicated an incompetent
or spendthrift or actual knowledge that judicial proceedings for
appointment of a guardian have been filed.
(f) JOINT TENANTS. Shares registered in the names of two or
more individuals who are named in the registration as joint tenants may be
voted in person or by proxy signed by one or more of the joint tenants if
either (1) no other joint tenant or his legal representative is present
and claims the right to participate in the voting of the shares or, before
the vote, files with the corporation's secretary, or other officer or
agent of the corporation authorized to tabulate votes, a contrary written
voting authorization or direction or written denial of authority of the
joint tenant present or signing the proxy proposed to be voted, or (2) all
other joint tenants are deceased and the corporation's secretary, or other
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officer or agent of the corporation authorized to tabulate votes, has no
actual knowledge that the survivor has been adjudicated not to be the
successor to the interests of those deceased.
BYLAW III. BOARD OF DIRECTORS
Section 3.01. GENERAL POWERS. The corporation's powers shall be
exercised by or under the authority of, and its business and affairs shall
be managed under the direction of its Board of Directors, subject to any
limitations set forth in the articles of incorporation, these Bylaws, or
any provision of Chapter 180.
Section 3.02. NUMBER, TENURE AND QUALIFICATIONS. The number of
directors of the corporation shall be not less than five nor more than
seventeen. The exact number of directors, within the minimum and maximum
limitation, shall be fixed from time to time by resolution of the Board of
Directors. Each director shall hold office for a term of one year and
until his successor shall have been elected by the shareholders or until
his prior death, resignation or removal. A director may be removed from
office by a vote of the shareholders taken at any shareholders' meeting
called for that purpose, provided that a quorum is present. A director
may resign at any time by delivering his written resignation to the Board
of Directors.
Section 3.03. ELECTION. Directors shall be elected by the
shareholders at each annual shareholders' meeting. Each director shall be
elected by a plurality of the votes cast by the shares entitled to vote in
the election at a meeting at which a quorum is present.
Section 3.04. REGULAR MEETINGS. A regular meeting of the Board of
Directors shall be held without other notice than this Bylaw immediately
after the annual meeting of shareholders, and each adjourned session
thereof. The place of such regular meeting shall be the same as the place
of the meeting of shareholders which precedes it, or such other suitable
place as may be announced at such meeting of shareholders. The Board of
Directors may provide, by resolution, the time and place, either within or
without the state of Wisconsin, for the holding of additional regular
meetings without other notice than such resolution.
Section 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, or the president, or any two directors. The person or
persons authorized to call special meetings of the Board of Directors may
fix any place, either in or outside the state of Wisconsin, as the place
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for holding any special meeting of the Board of Directors called by them,
and if no other place is fixed, the place of meeting shall be the
principal business office of the corporation in the state of Wisconsin.
Section 3.06. MEETINGS BY ELECTRONIC MEANS OF COMMUNICATION.
(a) CONDUCT OF MEETINGS. The Board of Directors may, in
addition to conducting meetings in which each director participates in
person, conduct any regular or special meeting by the use of any means of
communication, provided all participating directors may simultaneously
hear each other during the meeting, all communication during the meeting
is immediately transmitted to each participating director, and each
participating director is able to immediately send messages to all other
participating directors. All participating directors shall be informed
that a meeting is taking place at which official business may be
transacted.
(b) VERIFICATION OF DIRECTORS' IDENTITY. The identity of each
director participating in a meeting of the Board of Directors conducted
pursuant to Section 3.06(a) (other than a meeting in which each director
participates in person) must be verified by the secretary before the
directors vote on (1) a plan of merger or share exchange; (2) to sell,
lease, exchange, or otherwise dispose of substantial property or assets of
the corporation; (3) to voluntarily dissolve or to revoke voluntary
dissolution proceedings; or (4) to file for bankruptcy. The secretary
shall verify each participating director's identity by requesting the
director to give the password which shall have been provided specifically
to such director in the notice of the meeting. For purposes of this
section, whether a disposal of property or assets of the corporation shall
be "substantial" shall be determined by the Board of Directors.
Section 3.07. MANNER OF ACTING. The act of the majority of the
directors present at a meeting at which a quorum is present shall be the
act of the Board of Directors, unless the act of a greater number is
required by law or by the articles of incorporation or these Bylaws.
Section 3.08. QUORUM. A majority of the number of directors as
required in Section 3.02 of these Bylaws shall constitute a quorum for the
transaction of business at any Board of Directors' meeting, and a majority
of the number of directors serving on a committee as authorized in
Section 3.14 of these Bylaws shall constitute a quorum for the transaction
of business at any committee meeting, but a majority of the directors
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present (though less than such quorum) may adjourn the meeting from time
to time without further notice. These provisions shall not, however,
apply to the determination of a quorum for actions taken pursuant to
Bylaw VII of these Bylaws or any other provisions of these Bylaws which
fix different quorum requirements as of the date of the adoption of this
Section 3.08.
Section 3.09. VACANCIES. Any vacancy occurring in the Board of
Directors, including a vacancy created by an increase in the number of
directors, may be filled by the shareholders. During such time as the
shareholders fail or are unable to fill such vacancies, then and until the
shareholders act, (a) the Board of Directors may fill the vacancy; or (b)
if the directors remaining in office constitute fewer than a quorum of the
board, they may fill the vacancy by the affirmative vote of a majority of
all directors remaining in office.
Section 3.10. NOTICE OF MEETINGS; WAIVER. Written notice of each
Board of Directors' meeting, except meetings pursuant to Section 3.04 of
these Bylaws, shall be delivered personally, or by mail, private carrier,
telegram, telex, telecopy, or other document transmitted electronically,
to each director at his business address or at such other address as the
director shall have designated in writing and filed with the secretary.
Notice shall be given not less than 48 hours before the meeting being
noticed, or 72 hours before the meeting being noticed if the notice is
given by mail or private carrier. Oral notice may be given but in no
event less than one hour before the meeting. Notice shall be deemed given
at the time it is deposited with postage prepaid in the United States mail
or delivered to a private carrier or telegraph company, as the case may
be. Notice by telex or telecopy shall be deemed given when transmitted.
Oral notice is deemed given and effective when communicated. A director
may waive notice required under this section or by law at any time,
whether before or after the time of the meeting. The waiver must be in
writing, signed by the director, and retained in the corporate record
book. The director's attendance at a meeting shall constitute a waiver of
notice of the meeting, except when a director attends a meeting for the
express purpose of objecting to the transaction of any business because
the meeting is not lawfully called or convened. 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 the meeting.
Section 3.11. CONDUCT OF MEETINGS. The chairman of the board, if
any, and in his absence, the president, and in the absence of both of
them, any director chosen by the directors present, shall call meetings of
the Board of Directors to order and shall act as chairman of the board of
the meeting. The secretary of the corporation shall act as secretary of
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all meetings of the Board of Directors, but in the absence of the
secretary, the presiding officer may appoint any assistant secretary or
any director or other person present to act as secretary of the meeting.
Section 3.12. COMPENSATION AND EXPENSES. The Board of Directors, by
affirmative vote of a majority of the directors then in office and
irrespective of any personal interest of any of its members, may (a)
establish reasonable compensation of all directors for services to the
corporation as directors or may delegate this authority to an appropriate
committee, (b) provide for, or to delegate authority to an appropriate
committee to provide for, reasonable pensions, disability or death
benefits, and other benefits or payments to directors of the corporation
and to their estates, families, dependents, or beneficiaries for prior
services rendered to the corporation by the directors, and (c) provide for
reimbursement of reasonable expenses incurred in the performance of the
directors' duties, including the expense of traveling to and from board
meetings.
Section 3.13. DIRECTORS' ASSENT. A director of the corporation who
is present at a meeting of the Board of Directors or of a committee of the
board of which he is a member, at which action on any corporate matter is
taken, shall be deemed to have assented to the action taken unless (a) he
objects at the beginning of the meeting (or promptly upon his arrival) to
holding it or transacting business at the meeting; or (b) minutes of the
meeting are prepared and his dissent or abstention from the action taken
is entered in the minutes of the meeting; or (c) he delivers written
notice of his dissent or abstention to the presiding officer of the
meeting before its adjournment or to the corporation immediately after
adjournment of the meeting. The right of dissent or abstention is not
available to a director who votes in favor of the action taken.
Section 3.14. COMMITTEES. The Board of Directors may create and
appoint members to one or more committees, by resolution adopted by the
affirmative vote of a majority of the number of directors required by
Section 3.02 of these Bylaws. Each committee shall consist of two or more
directors. To the extent provided in the resolution as initially adopted
and as thereafter supplemented or amended by further resolution adopted by
a like vote, each committee shall have and may exercise, when the Board of
Directors is not in session, the powers of the Board of Directors in the
management of the corporation's business and affairs, except that a
committee may not (a) authorize distributions; (b) approve or propose to
shareholders action that requires shareholder approval; (c) elect the
principal officers; (d) amend articles of incorporation, or amend, adopt,
or repeal bylaws; (e) approve a plan of merger not requiring shareholder
approval; (f) authorize or approve reacquisition of shares except by a
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formula or method approved or prescribed by the Board of Directors; (g)
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 or a senior executive officer of the
corporation to do so within limits prescribed by the Board of Directors;
or (h) fill vacancies on the Board of Directors or on committees created
pursuant to this section, unless the Board of Directors, by resolution,
provides that committee vacancies may be filled by a majority of the
remaining committee members. The Board of Directors may elect one or more
of its members as alternate members of any such committee who may take the
place of any absent member or members at any meeting of the committee,
upon the request of the president or of the chairman of the board of the
meeting. Each committee shall fix its own rules governing the conduct of
its activities and shall make such report of its activities to the Board
of Directors as the board may request.
Section 3.15. ACTION WITHOUT A MEETING. Any action required or
permitted by the articles of incorporation, these Bylaws, or any provision
of law to be taken by the Board of Directors at a board meeting may be
taken without a meeting if one or more written consents, setting forth the
action so taken, shall be signed by all of the directors entitled to vote
on the subject matter of the action and retained in the corporate records.
Action taken pursuant to written consent shall be effective when the last
director signs the consent or upon such other effective date as is
specified in the consent.
BYLAW IV. OFFICERS
Section 4.01. NUMBER AND TITLES. The corporation's principal
officers shall be a president, a secretary, and a treasurer, each of whom
shall be elected by the board. There may, in addition, be a chairman of
the board, and one or more vice presidents, whenever the board shall see
fit to cause such office or offices to be filled. If there is more than
one vice president, the board may establish designations for the vice
presidencies to identify their functions or their order. The same natural
person may simultaneously hold more than one office.
Section 4.02. ELECTION AND TERM OF OFFICE. The officers of the
corporation shall be elected annually by the Board of Directors at the
first meeting of the Board of Directors held after each annual meeting of
the shareholders. If the election of officers shall not be held at such
meeting, such election shall be held as soon thereafter as conveniently
may be. Each officer shall hold office until his successor shall have
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been duly elected, or until the officer's death or resignation or removal
in the manner hereinafter provided.
Section 4.03. ADDITIONAL OFFICERS, AGENTS, ETC. In addition to the
officers referred to in Section 4.01 of these Bylaws, the corporation may
have such other officers, assistants to officers, acting officers and
agents, as the Board of Directors may deem necessary and may appoint.
Each such person shall act under his appointment for such period, have
such authority, and perform such duties as may be provided in these
Bylaws, or as the board may from time to time determine. The Board of
Directors may delegate to any officer the power to appoint any subordinate
officers, assistants to officers, acting officers, or agents. In the
absence of any officer, or for any other reason the Board of Directors may
deem sufficient, the board may delegate, for such time as the board may
determine, any or all of an officer's powers and duties to any other
officer or to any director.
Section 4.04. REMOVAL. The Board of Directors may remove any officer
or agent whenever in its judgment the corporation's best interests will be
served thereby, but the removal shall be without prejudice to the contract
rights, if any, of the person so removed. Appointment shall not of itself
create contract rights. An officer may remove, with or without cause, any
officer or assistant officer who was appointed by that officer.
Section 4.05. RESIGNATIONS. Any officer may resign at any time by
giving written notice to the Board of Directors, the president, or the
secretary. Any such resignation shall take effect at the time the notice
of resignation is delivered, unless the notice specifies a later effective
date. Unless otherwise specified in the notice of resignation, the
acceptance of the resignation shall not be necessary to make it effective.
Section 4.06. VACANCIES. A vacancy in any principal office because
of death, resignation, removal, disqualification, or other reason shall be
filled by the Board of Directors for the unexpired portion of the term. A
vacancy in any other office, as created under Section 4.01, of this Bylaw
IV, because of death, resignation, removal, disqualification, or other
reason may be filled by the Board of Directors for the unexpired portion
of the term.
Section 4.07. POWERS, AUTHORITY AND DUTIES. Officers of the
corporation shall have the powers and authority conferred and the duties
prescribed by the Board of Directors or the officer who appointed them in
addition to and to the extent not inconsistent with those specified in
other sections of this Bylaw IV.
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Section 4.08. THE CHAIRMAN OF THE BOARD. The chairman of the board,
if and while there be an incumbent of the office, shall preside at all
meetings of the Board of Directors and meetings of the shareholders at
which he is present. The chairman of the board shall have and exercise
general supervision over the conduct of the corporation's affairs and over
its other officers, subject, however, to the board's control. The
chairman of the board shall from time to time report to the board all
matters within his knowledge that the corporation's interests may require
to be brought to the board's notice. The chairman of the board shall,
whenever practicable, be consulted on all matters of general policy and
shall have such authority and duties as the Board of Directors shall from
time to time determine.
Section 4.09. THE PRESIDENT. The president, unless otherwise
determined by the Board of Directors, shall be the chief executive officer
of the corporation and, subject to the control of the Board of Directors,
shall oversee and direct the business and affairs of the corporation. If
and while there is no incumbent in the office of the chairman of the board
of Directors, the president shall preside at all meetings of the
shareholders. The president shall have authority, subject to such rules
as may be prescribed by the Board of Directors, to appoint such officers,
assistants to officers, acting officers, agents and employees of the
corporation as the president shall deem necessary, to prescribe their
powers, duties and compensation, and to delegate authority to them. Such
agents and employees shall hold office at the discretion of the president.
The president shall have authority together with another officer to sign,
execute and deliver in the corporation's name all instruments either when
specifically authorized by the Board of Directors or when required or
deemed necessary or advisable by the president in the ordinary conduct of
the corporation's normal business, except in cases where the signing and
execution of the instruments shall be expressly delegated by these Bylaws
or by the board to the president, acting alone, or to some other officer
or agent of the corporation or shall be required by law or otherwise to be
signed or executed by some other officer or agent. In general, the
president shall perform all duties incident to the office of president and
such other duties as may be prescribed by the Board of Directors from time
to time.
Section 4.10. THE VICE PRESIDENTS. In the president's absence, or in
the event of his death or inability or refusal to act, or if for any
reason it shall be impractical for the president to act personally, the
vice president (or if there is more than one vice president, the vice
presidents in the order designated by the Board of Directors, or in the
absence of any designation, 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. Each vice
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president shall perform such other duties and have such authority as from
time to time may be delegated or assigned to him by the chairman of the
board, if any, the president or by the Board of Directors. The execution
of any instrument of the corporation by any vice president shall be
conclusive evidence, as to third parties, of his authority to act in the
president's place.
Section 4.11. THE SECRETARY. The secretary shall:
(a) keep the record of all minutes of the shareholders and of
the Board of Directors in one or more books provided for that purpose;
(b) see that all notices are duly given in accordance with these
Bylaws or as required by law;
(c) be custodian of the corporation's corporate records and see
that the books, reports, statements, certificates and all other documents
and records required by law are properly kept and filed;
(d) have charge, directly or through such transfer agent or
agents and registrar or registrars as the Board of Directors may appoint,
of the issue, transfer, and registration of certificates for shares in the
corporation and of the records thereof, such records to be kept in such
manner as to show at any time the number of shares in the corporation
issued and outstanding, the names and addresses of the shareholders of
record, and the numbers and classes of shares held by each;
(e) exhibit at reasonable times upon the request of any director
the records of the issue, transfer, and registration of the corporation's
share certificates, at the place where those records are kept, and have
these records available at each shareholders' meeting; and
(f) 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 by the chairman of the board, the president or by the Board of
Directors.
Section 4.12. THE TREASURER. The treasurer shall:
(a) have charge and custody of, and be responsible for, all of
the corporation's funds and securities; receive and give receipts for
monies due and payable to the corporation from any source whatsoever;
deposit all such monies in the corporation's name in such banks, financial
institutions, trust companies or other depositories as shall be selected
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in accordance with the provisions of Section 5.04 of these Bylaws; cause
such funds to be disbursed by checks or drafts on the authorized
corporation's depositories, signed as the Board of Directors may require;
and be responsible for the accuracy of the amounts of, and cause to be
preserved proper vouchers for, all monies disbursed; and
(b) in general, perform all duties incident to the office of
treasurer and such other duties as from time to time may be delegated or
assigned to him by the chairman of the board, the president or by the
Board of Directors.
If required by the Board of Directors, the treasurer shall furnish a bond
for the faithful discharge of his duties in such sum and with such surety
or sureties as the board shall determine.
Section 4.13. 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 chairman of the board, the president or by the Board of Directors.
BYLAW V. CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 5.01. CONTRACTS. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or
execute or deliver any instrument in the corporation's name and on its
behalf. The authorization may be general or confined to specific
instruments. When an instrument is so executed, no other party to the
instrument or any third party shall be required to make any inquiry into
the authority of the signing officer or officers, agent or agents.
Section 5.02. LOANS. No indebtedness for borrowed money shall be
contracted on the corporation's behalf 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. The authorization
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may be general or confined to specific instances.
Section 5.03. CHECKS, DRAFTS, ETC. All checks, drafts, or other
orders for the payment of money, or notes or other evidences of
indebtedness issued in the corporation's name, 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.
Section 5.04. DEPOSITS. All funds of the corporation not otherwise
employed shall be deposited from time to time to the corporation's credit
in such banks, trust companies, or other depositories as may be selected
by or under the authority of a resolution of the Board of Directors.
BYLAW VI. VOTING OF SECURITIES OWNED BY THIS CORPORATION
Section 6.01. AUTHORITY TO VOTE. Any shares or other securities
issued by any other corporation and owned or controlled by this
corporation may be voted at any meeting of the issuing corporation's
security holders by the president of this corporation if he be present, or
in his absence, by any vice president of this corporation who may be
present.
Section 6.02. PROXY AUTHORIZATION. Whenever, in the judgment of the
president, or in his absence, of any vice president, it is desirable for
this corporation to execute a proxy or written consent with respect to any
shares or other securities issued by any other corporation and owned by
this corporation, the proxy or consent shall be executed in this
corporation's name by the president or one of the vice presidents of this
corporation, without necessity of any authorization by the Board of
Directors, counter-signature, or attestation by another officer. Any
person or persons designated in this manner as this corporation's proxy or
proxies shall have full right, power and authority to vote the shares or
other securities issued by the other corporation and owned by this
corporation in the same manner as the shares or other securities might be
voted by this corporation.
BYLAW VII. CONTRACTS BETWEEN THIS CORPORATION
AND RELATED PERSONS
Any contract or other transaction between the corporation and one or
more of its directors, or between the corporation and any entity of which
one or more of its directors are members or employees or in which one or
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more of its directors are interested, or between the corporation and any
corporation or association of which one or more of its directors are
shareholders, members, directors, officers, or employees or in which one
or more of its directors are interested, shall not be voidable by the
corporation solely because of the director's or officer's interest in the
transaction if:
(a) the material facts of the transaction and the director's or
officer's interest were disclosed or known to the Board of Directors or a
committee of the Board of Directors, and a majority of disinterested
members of the Board of Directors or committee authorized, approved, or
specifically ratified the transaction; or
(b) the material facts of the transaction and the director's or
officer's interest were disclosed or known to the shareholders entitled to
vote, and a majority of the shares held by disinterested shareholders
authorized, approved, or specifically ratified the transaction; and
(c) the transaction was fair to the corporation.
For purposes of this Bylaw VII, a majority of directors, including
directors having a direct or indirect interest in the transaction, shall
constitute a quorum of the board or a committee of the board acting on the
matter.
BYLAW VIII. CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 8.01. CERTIFICATES FOR SHARES. Certificates representing
shares in the corporation shall, at a minimum, state on their face all of
the following: (a) the name of the corporation and that it is organized
under the laws of the state of Wisconsin; (b) the name of the person to
whom issued; and (c) the number and class of shares that the certificate
represents. The share certificates shall be signed by the president or
any vice president and by the secretary and any assistant secretary or any
other officer or officers designated by the Board of Directors. A record
shall be kept of the name of the owner or owners of the shares represented
by each certificate, the number of shares represented by each certificate,
the date of each certificate, and in case of cancellation, the date of
cancellation. Every certificate surrendered to the corporation for
exchange or transfer shall be cancelled, and no new certificate or
certificates shall be issued in exchange for any existing certificates
until the existing certificates shall have been so cancelled, except in
cases provided for in Section 8.07 of these Bylaws.
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Section 8.02. FACSIMILE SIGNATURES. The signatures of the president
or vice president and the secretary or assistant secretary upon a
certificate may be facsimiles if the certificate is countersigned by a
transfer agent, or registered by a registrar, other than the corporation
itself or an employee of the corporation.
Section 8.03. SIGNATURE BY FORMER OFFICER. If an officer who has
signed or whose facsimile signature has been placed upon any share
certificate shall have ceased to be an officer before the certificate is
issued, the corporation may issue the certificate with the same effect as
if he were an officer at the date of its issue.
Section 8.04. CONSIDERATION FOR SHARES. The corporation's shares may
be issued for such consideration as shall be determined by the Board of
Directors to be adequate. When the corporation receives payment of the
consideration for which shares are to be issued, the shares shall be
deemed fully paid and nonassessable by the corporation.
Section 8.05. TRANSFER OF SHARES. Transfers of shares in the
corporation shall be made on the corporation's books only by the
registered shareholder, by his legal guardian, executor, or administrator,
or by his or her attorney authorized by a power of attorney duly executed
and filed with the corporation's secretary or with a transfer agent
appointed by the Board of Directors, and on surrender of the certificate
or certificates for the shares. Where a share certificate is presented to
the corporation with a request to register for transfer, the corporation
shall not be liable to the owner or any other person suffering a loss as a
result of the registration of transfer if (a) there were on or with the
certificate the necessary endorsements, and (b) the corporation had no
duty to inquire into adverse claims or has discharged the duty. The
corporation may require reasonable assurance that the endorsements are
genuine and effective in compliance with such other regulations as may be
prescribed by or under the Board of Directors' authority. The person in
whose name shares stand on the corporation's books shall, to the full
extent permitted by law, be deemed the owner of the shares for all
purposes.
Section 8.06. LOST, DESTROYED OR STOLEN CERTIFICATES. If an owner
claims that his share certificate has been lost, destroyed, or wrongfully
taken, a new certificate shall be issued in place of the original
certificate if the owner (a) so requests before the corporation has notice
that the shares have been acquired by a bona fide purchaser; (b) files
with the corporation a sufficient indemnity bond (unless such bond is
waived by the Board of Directors); and (c) satisfies such other reasonable
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requirements as may be prescribed by or under the authority of the Board
of Directors.
Section 8.07. STOCK REGULATIONS. The Board of Directors shall have
the power and authority to make all such further rules and regulations not
inconsistent with the statutes of the state of Wisconsin as they may deem
expedient concerning the registration of certificates representing shares
of the corporation.
BYLAW IX. DISTRIBUTIONS
The Board of Directors may make distributions to its shareholders
whenever and in whatever amounts as, in the board's opinion, the
corporation's condition renders advisable in the manner and upon the terms
and conditions provided by law and the restated articles of incorporation.
BYLAW X. INDEMNIFICATION
(a) MANDATORY INDEMNIFICATION.
(1) Subject to the conditions and limitations of this Bylaw X
and the corporation's articles of incorporation, the corporation shall, to
the fullest extent permitted by the Wisconsin Business Corporation Law as
it may then be in effect, indemnify and hold harmless each person (and the
heirs and legal representatives of such person) who is or was a director
or officer of the corporation, or of any other corporation or other
enterprise which is served in any capacity at the request of the
corporation (the "executive"), against any and all expenses (including,
but not limited to, fees, costs, charges, disbursements, attorneys' fees
and any other expenses (hereafter collectively referred to as "expenses"))
and liabilities (including, but not limited to, the obligation to pay a
judgment, settlement, penalty, assessment, forfeiture or fine, including
an excise tax assessed with respect to an employee benefit plan
(hereinafter collectively referred to as "liabilities")) actually and
reasonably incurred by him in connection with the result from any
threatened, pending or completed civil, criminal, administrative or
investigative action, suit, arbitration or other proceeding (whether
brought by or in the right of the corporation or such other corporation or
otherwise) ("proceedings"), or in connection with an appeal relating
thereto, including, without limitation, proceedings brought under and/or
predicated upon the Securities Act of 1933, as amended, and/or the
Securities Exchange Act of 1934, as amended, and/or the Investment Company
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Act of 1940, as amended, and/or their respective state counterparts and/or
any rule or regulation promulgated thereunder, in which he may become
involved, as a party or otherwise, by reason of his being or having been
such executive, or by reason of any past or future action or omission or
alleged action or omission (including those antedating the adoption of the
Bylaw) by him in such capacity, whether or not he continues to be such at
the time such liability or expense is incurred, either:
(A) to the extent he is successful on the merits or
otherwise in the defense of a proceeding, or
(B) to the extent he is not successful on the merits or
otherwise in the defense of a proceeding, unless it is determined pursuant
to paragraph (b) of this Bylaw that liability was incurred because the
executive breached or failed to perform a duty he owed to the corporation
and the breach or failure to perform constituted:
(i) a willful failure to deal fairly with the
corporation or its shareholders in connection with a matter in which the
executive had a material conflict of interest,
(ii) a violation of criminal law, unless the executive
had reasonable cause to believe his conduct was lawful or no reasonable
cause to believe his conduct was unlawful,
(iii) a transaction from which the executive derived
an improper personal profit, or
(iv) willful misconduct.
(2) In the event the executive is or was serving as an
executive, trustee, fiduciary, administrator, employee or agent of an
employee benefit plan sponsored by or otherwise associated with the
corporation and incurs expenses or liabilities by reason of a proceeding
having been brought, or having been threatened, against such executive
because of his status as such an executive, trustee, fiduciary,
administrator, employee or agent of such plan or by reason of his
performing duties in any such capacities, the corporation shall indemnify
and hold harmless the executive against any and all of such reasonable
amounts subject to the provisions of paragraph (a) hereof.
(3) The corporation may agree to indemnify and allow reasonable
expenses for an employee or agent of the corporation who is not an
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executive by general or specific action of the Board of Directors, or by
contract or agreement.
(b) RIGHT TO INDEMNIFICATION; HOW DETERMINED.
(1) An executive's indemnification under this Bylaw X shall be
determined pursuant to one of the following means (the "Authority") as may
be selected by the executive seeking such indemnification:
(A) by a majority vote of a quorum of the Board of
Directors consisting of directors not at the time parties to the same or
related proceedings. If a quorum of disinterested directors cannot be
obtained, by a majority vote of a committee duly appointed by the Board of
Directors and consisting of two or more directors not at the time parties
to the same or related proceedings. Directors who are parties to the same
or related proceedings may participate in the designation of the members
of the committee;
(B) by independent legal counsel selected by a quorum of
the Board of Directors or its committee in the manner prescribed in (i)
above or, if unable to obtain such quorum or committee, by majority vote
of the full Board of Directors, including directors who are parties to the
same or related proceedings;
(C) by a panel of three arbitrators consisting of one
arbitrator selected by those directors entitled under (ii) above to select
independent legal counsel, one arbitrator selected by the executive
seeking indemnification and one arbitrator selected by the two arbitrators
previously selected;
(D) by an affirmative vote of shares as set forth in
Section 2.08 of Bylaw II of these Bylaws;
(E) by a court pursuant to the Wisconsin Business
Corporation Law as it may then be in effect; or
(F) by any other method provided for by the articles of
incorporation, contract or agreement. In any such determination there
shall exist a rebuttable presumption that the executive has met such
standard(s) of conduct and is therefore entitled to indemnification
pursuant to this Bylaw X. The burden of rebutting such presumption by
clear and convincing evidence shall be on the corporation. The Authority
shall make a determination within sixty days of being selected and shall
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simultaneously submit a written opinion of its conclusions to both the
corporation and the executive and, if the Authority determines that the
executive is entitled to be indemnified for any amounts pursuant to this
Bylaw X, the corporation shall pay such amounts (net of all amounts, if
any, previously advanced to the executive pursuant to paragraph (d),
including interest thereon as provided in paragraph (e)(3), to the
executive (or to such other person or entity as he may designate in
writing to the corporation) within ten days of receipt of such opinion.
(2) Any executive may, either before or within two years after
a determination, if any, has been made by the Authority, petition the
appropriate circuit court of the state of Wisconsin or any other court of
competent jurisdiction to determine whether the executive is entitled to
indemnification under this Bylaw X, and such court shall thereupon have
the exclusive authority to make such determination unless and until such
court dismisses or otherwise terminates such proceeding without having
made such determination. The court shall, as petitioned, make an
independent determination of whether the executive is entitled to
indemnification as provided under this Bylaw X, irrespective of any prior
determination made by the Authority; provided, however, that there shall
exist a rebuttable presumption that the executive has met the applicable
standard(s) of conduct and is therefore entitled to indemnification
pursuant to this Bylaw X. The burden of rebutting such presumption by
clear and convincing evidence shall be on the corporation. If the court
determines that the executive is entitled to be indemnified for any
amounts pursuant to this Bylaw X, unless otherwise ordered by such court,
the corporation shall pay such amounts (net of all amounts, if any,
previously advanced to the executive pursuant to paragraph (d), including
interest thereon as provided in paragraph (e)(3), to the executive (or to
such other person or entity as the executive may designate in writing to
the corporation) within ten days of the rendering of such determination.
An executive shall pay all expenses incurred by the executive in
connection with the judicial determination provided in this paragraph
(b)(2), and any subsequent appeal thereof, unless it shall ultimately be
determined by the court that he is entitled to be indemnified, in whole or
in part, by the corporation as authorized in this Bylaw X.
(3) Except as otherwise set forth in this subparagraph (2)(b),
the expenses associated with the indemnification process set forth in this
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paragraph (b), including, without limitation, the expenses of the
Authority selected hereunder, shall be paid by the corporation.
(c) TERMINATION OF A PROCEEDING IS NONCONCLUSIVE. The termination
of any proceeding, no matter by whom brought, including, without
limitation, Securities Law proceedings, by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall
not, of itself, create a presumption that the executive has not met the
applicable standard(s) of conduct set forth in paragraph (a).
(d) ADVANCE PAYMENT.
(1) Upon written request, the corporation shall advance
expenses to, or where appropriate, at its expense, undertake the defense
of, every such person prior to the final disposition thereof upon receipt
of an undertaking by or on behalf of the recipient to repay such amount
unless it shall ultimately be determined that he is entitled to
indemnification under this Bylaw X together with a written affirmation of
his good faith and belief that he has not breached or failed to perform
his duties to the corporation.
(2) In the event the corporation makes an advance of expenses
to the executive pursuant to this Bylaw X, the corporation shall be
subrogated to each and every right of recovery the executive may have
against any insurance carrier from whom the corporation has purchased
insurance for such purpose, if any.
(e) PARTIAL INDEMNIFICATION; INTEREST.
(1) If it is determined pursuant to this Bylaw X that an
executive is entitled to indemnification as to some claims, issues or
matters, but not as to other claims, issues or matters, involved in any
proceeding, no matter by whom brought, including, without limitation,
Securities Law proceedings, the Authority (or the court) shall authorize
the reasonable proration (and payment by the corporation) of such expenses
and liabilities with respect to which indemnification is sought by the
executive, among such claims, issues or matters as the Authority (or the
court) shall deem appropriate in light of all of the circumstances of such
proceeding.
(2) If it is determined pursuant to this Bylaw X that certain
amounts incurred by an executive, are for whatever reason, unreasonable in
amount, the Authority (or the court) shall authorize indemnification to be
paid by the corporation to the executive for only such amounts as the
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Authority (or the court) shall deem reasonable in light of all of the
circumstances of such proceeding.
(3) To the extent deemed appropriate by the Authority pursuant
to this Bylaw X, or by the court before which such proceeding was brought,
interest shall be paid by the corporation to an executive, at a reasonable
interest rate, for amounts for which the corporation indemnifies the
executive.
(f) LIMITATION OF DERIVATIVE PROCEEDINGS AND RELEASE OF DERIVATIVE
CLAIMS. No proceeding shall be brought and no cause of action shall be
asserted, including, without limitation, Securities Law proceedings, by or
in the right of the corporation, against the executive, his spouse, heirs,
executors or administrators after the expiration of two years from the
date the executive ceases, for any reason whatsoever, to serve as an
executive of the corporation and/or of an affiliate unless asserted by the
filing of an appropriate proceeding within such two-year period. The
provisions of any federal, state or local law or statute providing in
substance that releases shall not extend to claims, demands, injuries or
damages which are unknown or unsuspected to exist at the time to the
person or entity executing such release are hereby expressly waived by the
corporation and its shareholders.
(g) NONEXCLUSIVITY OF BYLAW X. The right to indemnification
provided to an executive by this Bylaw X shall not be deemed exclusive of
any other rights to indemnification or the advancement of expenses to
which he may be entitled under any charter provision, contract, agreement,
resolution, vote of shareholders or disinterested directors of the
corporation or otherwise, including, without limitation, under Federal law
or Wisconsin Business Corporation Law Chapter 180 as it may then be in
effect, both as to acts in his official capacity as such executive or
other employee or agent of the corporation or of an affiliate or as to
acts in any other capacity while holding such office or position, and the
terms and provisions of this Bylaw X shall continue as to the executive if
he ceases to be an executive or other employee or agent of the corporation
or of an affiliate, and such terms and provisions shall inure to the
benefit of the heirs, executors and administrators of the executive.
(h) INSURANCE.
(1) The corporation may purchase and maintain insurance on
behalf of an executive, agent or employee against any liability asserted
against him or incurred by or on behalf of him or her in such capacity as
an executive or other employee or agent of the corporation or of an
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affiliate, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability
under the provisions of this Bylaw X or under Wisconsin Business
Corporation Law Chapter 180 as it may then be in effect. The purchase and
maintenance of such insurance shall not in any way limit or affect the
rights and obligations of the corporation or the executive under this
Bylaw X and the execution and delivery of this Bylaw X by the corporation
and the executive shall not in any way limit or affect the rights and
obligations of the corporation or of the other party or parties thereto
under any such policy or agreement of insurance.
(2) If an executive shall receive payment from any insurance
carrier or from the plaintiff in any proceeding against the executive in
respect of indemnified amounts after payments on account of all or part of
such indemnified amounts have been made by the corporation pursuant to
this Bylaw X, the executive shall promptly reimburse the corporation for
the amount, if any, by which the sum of such payment by such insurance
carrier or such plaintiff and payments by the corporation to the executive
exceeds such indemnified amounts; provided, however, that such portions,
if any, of such insurance proceeds that are required to be reimbursed to
the insurance carrier under the terms of its insurance policy, such as
deductible or co-insurance payments, shall not be deemed to be payments to
the executive hereunder. In addition, upon payment of indemnified amounts
under this Bylaw X, the corporation shall be subrogated to an executive's
rights against any insurance carrier in respect of such indemnified
amounts and the executive shall execute and deliver any and all
instruments and/or documents and perform any and all other acts or deeds
which the corporation deems necessary or advisable to secure such rights.
The executive shall do nothing to prejudice such rights of recovery or
subrogation.
(i) WITNESS EXPENSES. Upon the executive's written request, the
corporation shall pay (in advance or otherwise) or reimburse any and all
expenses reasonably incurred by him in connection with his or her
appearance as a witness in any proceeding at a time when he has not been
formally named a defendant or respondent to such a proceeding.
(j) CONTRIBUTION.
(1) In the event the indemnity provided for in paragraph (a) is
unavailable to the executive for any reason whatsoever, the corporation,
in lieu of indemnifying the executive, shall contribute to the amount
reasonably incurred by or on behalf of the executive, whether for
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liabilities and/or for expenses in connection with any proceeding, no
matter by whom brought, including without limitation, Securities Law
proceedings, in such proportion as is deemed fair and reasonable by the
Authority pursuant to paragraph (b) hereof, or by the court before which
such proceeding was brought, taking into account all of the circumstances
of such proceeding, in order to reflect:
(A) the relative benefits received by the corporation and
the executive as a result of the event(s) and/or transaction(s) giving
cause to such proceeding; and/or
(B) the relative fault of the corporation (and its other
executives, employees and/or agents) and the executive in connection with
such event(s) and/or transaction(s).
(2) The executive shall not be entitled to contribution from
the corporation under this paragraph (j) if it is determined by the
Authority pursuant to paragraph (b), or by the court before which such
proceeding was brought, that the executive, in the performance of his duty
to the corporation or otherwise, violated the provisions of paragraph(a).
(3) The corporation's payment of, and the executive's right to,
contribution under this paragraph (j) shall be made and determined in
accordance with paragraph (b) hereof relating to the corporation's payment
of, and the executive's right to, indemnification under this Bylaw X.
(k) SEVERABILITY. In the event that any provision of this Bylaw X
shall be deemed invalid or inoperative, or in the event that a court of
competent jurisdiction determines that any of the provisions of this
Agreement contravene public policy, this Bylaw 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 on the part of any person, to be modified, amended
and/or limited, but only to the extent necessary to render the same valid
and enforceable, and the corporation shall indemnify the executive as to
reasonable expenses, judgments, fines and amounts incurred in settlement
with respect to any proceeding, no matter by whom brought, including
Securities Law proceedings, to the full extent permitted by any applicable
provision of this Bylaw X that shall not have been invalidated and to the
full extent otherwise permitted by the Wisconsin Business Corporation Law
as it may then be in effect.
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BYLAW XI. FISCAL YEAR
The fiscal year of the corporation shall begin on the 1st day of
January and end on the 31st day of December in each year.
BYLAW XII. SEAL
The corporation shall not have a corporate seal, and all formal
corporate documents shall, when required, carry the designation "No Seal"
along with the signature of the officer or officers.
BYLAW XIII. AMENDMENTS
Section 13.01. BY SHAREHOLDERS. Except with respect to Sections
2.02, 2.08 and 3.08, and unless a greater number of shares is required
under the terms of any section of any bylaw of these Bylaws which has been
adopted by the shareholders or by law, these Bylaws may be altered,
amended or repealed and new bylaws may be adopted by the shareholders by
affirmative vote of not less than a majority of all voting groups of this
corporation entitled to vote in the election of directors present or
represented at any annual or special meeting of the shareholders at which
a quorum is in attendance. Sections 2.02, 2.08 and 3.08 of the Bylaws may
be altered, amended or repealed only by the affirmative vote of two-thirds
of all voting groups of this corporation entitled to vote in the election
of directors at any annual or special meeting of the shareholders at which
a quorum is in attendance in addition to the vote or consent of the
holders of the stock of this corporation otherwise required by law.
Section 13.02. BY DIRECTORS. These Bylaws may also be altered,
amended or repealed and new bylaws may be adopted by the Board of
Directors by affirmative vote of a majority of the number of directors
present at any meeting at which a quorum is in attendance; but no bylaw
adopted by the shareholder shall be amended or repealed by the Board of
Directors if the bylaw so adopted so provides.
Section 13.03. 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 shares 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.
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