Exhibit 3.2
B Y L A W S
OF
WAUSAU PAPER CORP.
AS RESTATED ON JUNE 17, 1992
AND LAST AMENDED ON APRIL 21, 2005
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 of Notice.........................................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
Section 2.13. Notice of Shareholder Business and Nominations...........6
BYLAW III. BOARD OF DIRECTORS................................................8
Section 3.01. General Powers...........................................8
Section 3.02. Number, Tenure, Class and Qualifications.................8
Section 3.03. Election.................................................9
Section 3.04. Regular Meetings.........................................9
Section 3.05. Special Meetings.........................................9
Section 3.06. Meetings by Telephonic or Other Electronic Means of
Communication...........................................9
Section 3.07. Manner of Acting.........................................9
Section 3.08. Quorum..................................................10
Section 3.09. Vacancies...............................................10
Section 3.10. Notice of Meetings; Waiver..............................10
Section 3.11. Conduct of Meetings.....................................11
Section 3.12. Compensation and Expenses...............................11
Section 3.13. Directors' Assent.......................................11
Section 3.14. Committees..............................................11
Section 3.15. Action Without a Meeting................................12
Section 3.16. Director Emeritus.......................................12
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BYLAW IV. OFFICERS..........................................................12
Section 4.01. Number and Titles.......................................12
Section 4.02. Election and Term of Office.............................13
Section 4.03. Additional Officers, Agents, etc........................13
Section 4.04. Removal.................................................13
Section 4.05. Resignations............................................13
Section 4.06. Vacancies...............................................13
Section 4.07. Powers, Authority, and Duties...........................13
Section 4.08. The Chair of the Board..................................13
Section 4.09. Vice Chair..............................................14
Section 4.10. The President...........................................14
Section 4.11. The Vice-Presidents.....................................14
Section 4.12. The Secretary...........................................15
Section 4.13. The Treasurer...........................................15
Section 4.14. Assistant Secretaries and Assistant Treasurers..........16
Section 4.15. Corporate Controller....................................16
Section 4.16. Salaries................................................16
BYLAW V. CONTRACTS, LOANS, CHECKS AND DEPOSITS.............................16
Section 5.01. Contracts...............................................16
Section 5.02. Loans...................................................17
Section 5.03. Checks, Drafts, etc.....................................17
Section 5.04. Deposits................................................17
BYLAW VI. VOTING OF SECURITIES OWNED BY THIS CORPORATION....................17
Section 6.01. Authority to Vote.......................................17
Section 6.02. Proxy Authorization.....................................17
BYLAW VII. CONTRACTS BETWEEN THIS CORPORATION
AND RELATED PERSONS.......................................................17
BYLAW VIII. CERTIFICATES FOR SHARES AND THEIR TRANSFER......................18
Section 8.01. Certificates for Shares.................................18
Section 8.02. Facsimile Signatures and Seal...........................19
Section 8.03. Signature by Former Officer.............................19
Section 8.04. Consideration for Shares................................19
Section 8.05. Transfer of Shares......................................19
Section 8.06. Restrictions on Transfer................................20
Section 8.07. Lost, Destroyed, or Stolen Certificates.................20
Section 8.08. Stock Regulations.......................................20
BYLAW IX. DISTRIBUTIONS.....................................................20
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BYLAW X. INDEMNIFICATION....................................................20
Section 10.01. Mandatory Indemnification..............................20
Section 10.02. Right to Indemnification; How Determined...............22
Section 10.03. Termination of a Proceeding is Nonconclusive...........24
Section 10.04. Advance Payment........................................24
Section 10.05. Partial Indemnification; Interest......................24
Section 10.06. Limitation of Derivative Proceedings and Release
of Derivative Claims................................25
Section 10.07. Nonexclusivity of Bylaw X..............................25
Section 10.08. Insurance..............................................26
Section 10.09. Witness Expenses.......................................26
Section 10.10. Contribution...........................................26
Section 10.11. Severability...........................................27
Section 10.12. Contractual Nature of Bylaw X; Repeal or Limitation of
Rights..............................................28
BYLAW XI. AMENDMENTS........................................................28
Section 11.01. By Shareholders........................................28
Section 11.02. By Directors...........................................28
BYLAW XII. SEAL.............................................................28
BYLAW XIII. FISCAL YEAR.....................................................28
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B Y L A W S
OF
WAUSAU PAPER CORP.
BYLAW I. IDENTIFICATION
Section 1.01. Name. The name of the corporation is Wausau Paper Corp.
(the "corporation").
Section 1.02. Principal and Business Offices. The corporation may have
such principal and other business offices, either in or outside the state of
Wisconsin, 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 at such time 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.
Section 2.02. Special Meetings. Special shareholders' meetings may be
called by: (1) the chair; (2) the president; (3) the board of directors or by
such other officer(s) as it may authorize from time to time; or (4) the
president or secretary upon the written request 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 (4), above, stating the
purpose(s) of the requested meeting, dated and signed by the person(s)
entitled, as determined pursuant to Section 2.06 of these bylaws, 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
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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.
Any meeting may be adjourned by the board of directors or the presiding officer
to reconvene at such time, date or place as it may determine.
Section 2.04. Notice of Meeting. The corporation shall notify each
shareholder who is entitled to vote at the meeting, and any other shareholder
entitled to notice under Chapter 180, of the date, time, and place of each
annual or special shareholders' meeting. In the case of special meetings, the
notice shall also state the meeting's purpose. Unless otherwise required by
Chapter 180, the meeting notice shall be given not less than 10 days nor more
than 60 days before the meeting date. Notice must be communicated in writing
by mail, telegraph, teletype, facsimile, other form of written communication.
Notice, if mailed, is effective when mailed, and such notice may be addressed
to the shareholder's address shown in the corporation's current record of
shareholders. Notice provided in any other allowable manner is effective when
received. If an annual or special meeting of shareholders is adjourned to a
different date, time or place, the corporation shall not be required to give
notice of the new date, time or place if the new date, time or place is
announced at the meeting before adjournment; provided, however, that if the new
record date for an adjourned meeting is or must be fixed, the corporation shall
give notice of the adjourned meeting to persons who are shareholders as of the
new record date.
Section 2.05. Waiver of Notice. A shareholder may waive notice of any
shareholders' meeting, 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 that 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. A shareholder's attendance
at a meeting, in person or by proxy, waives objection to lack of notice or
defective notice, unless the shareholder at the beginning of the meeting or
promptly upon arrival objects to holding the meeting or transacting business at
the meeting.
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 request a special 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:
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1. With respect to the payment of a share dividend, the date the
board authorizes the share dividend;
2. With respect to a distribution to shareholders (other than one
involving a repurchase or reacquisition of shares), the date the board
authorizes the distribution; and
3. 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).
A shareholder or his or her agent may, on written demand, inspect and,
subject to the limitations imposed by the Wisconsin Business Corporation Law,
copy the list, during regular business hours and at his or her expense, during
the period that it is available for inspection pursuant to this Section 2.07.
The corporation shall make the shareholders' list available at the meeting, and
any shareholder or his or her agent or attorney may inspect the list at any
time during the meeting or any adjournment. Failure to comply with the
requirements of this section shall not affect the validity of any action taken
at such meeting.
Section 2.08. Quorum and Voting Requirements. Shares entitled to vote
as a separate voting group may take action on a matter at a meeting only if a
quorum of those shares exists with respect to that matter. Except as otherwise
provided by the restated articles of incorporation, these bylaws, or any
provision of Chapter 180, a majority of the votes entitled to be cast on the
matter by the voting group shall constitute a quorum of that voting group for
action on that matter. If a quorum exists, action on a matter (other than the
election of directors under Section 3.03 of the bylaws) by a voting group is
approved if the votes cast within the voting group favoring the action exceed
the votes cast within the voting group opposing the action, unless the articles
of incorporation, these bylaws, or any provision of Chapter 180 requires a
greater number of affirmative votes. 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
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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 that adjourned meeting.
At the adjourned meeting at which a quorum is represented, any business may be
transacted that might have been transacted at the meeting as originally
noticed.
Section 2.09. Conduct of Meetings. The president, and in his or her
absence, the chair of the board in that order, 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 chair of the meeting. The
corporation's secretary shall act as secretary of all meetings of the
shareholders, but, in his or her 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 or her 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 or her 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 restated articles of
incorporation or as otherwise required by Chapter 180.
Section 2.12. Voting of Shares by Certain Holders.
1. 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 such 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.
2. LEGAL REPRESENTATIVES AND FIDUCIARIES. Shares held by an
administrator, executor, guardian, conservator, trustee in bankruptcy,
receiver, or assignee for creditors,
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in a fiduciary capacity, may be voted by the fiduciary, either in person
or by proxy, without transferring the shares into his or her name,
provided that there is filed with the secretary, before or at the time
of the meeting, proper evidence of his or her incumbency and the number
of shares held. Shares standing in a fiduciary's name may be voted by
him or her, 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.
3. 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.
4. 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.
5. 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.
6. 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 or her 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 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.
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Section 2.13. Notice of Shareholder Business and Nominations.
A. Annual Meetings of Shareholders.
(1) Nominations of persons for election to the board of directors
of the corporation and the proposal of business to be considered by the
shareholders may be made at an annual meeting of shareholders (a)
pursuant to the corporation's notice of meeting delivered pursuant to
Section 2.04 of these bylaws; (b) by or at the direction of the board of
directors; or (c) by any shareholder of the corporation who is entitled
to vote at the meeting, who complied with the notice procedures set forth
in subparagraphs (2) and (3) of this paragraph (A) of this bylaw and who
was a shareholder of record at the time such notice is delivered to the
secretary of the corporation.
(2) For nominations or other business to be properly brought
before an annual meeting by a shareholder pursuant to clause (c) of
subparagraph (A)(1) of this bylaw, the shareholder must have given timely
notice thereof in writing to the secretary of the corporation. To be
timely, a shareholder's notice shall be delivered to the secretary at the
principal offices of the corporation not less than 60 days nor more than
90 days prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the annual
meeting is advanced by more than 30 days or delayed by more than 60 days
from such anniversary date, notice by the shareholder to be timely must
be so delivered not earlier than the 90th day prior to such annual
meeting and not later than the close of business on the later of the 60th
day prior to such annual meeting or the 10th day following the day on
which public announcement of the date of such meeting is first made.
Such shareholder's notice shall set forth (a) as to each person whom the
shareholder proposes to nominate for election or reelection as a
director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is
otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
(including such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); (b) as
to any other business that the shareholder proposes to bring before the
meeting, a brief description of the business desired to be brought before
the meeting, the reasons for conducting such business at the meeting and
any material interest in such business of such shareholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (c)
as to the shareholder giving the notice and the beneficial owner, if any,
on whose behalf the nomination or proposal is made (i) the name and
address of such shareholder, as they appear on the corporation's books,
and of such beneficial owner and (ii) the class and number of shares of
the corporation which are owned beneficially and of record by such
shareholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of
subparagraph (A)(2) of this bylaw to the contrary, in the event that the
number of directors to be elected to the
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board of directors of the corporation is increased and there is no public
announcement naming all of the nominees for director or specifying the
size of the increased board of directors made by the corporation at least
70 days prior to the first anniversary of the preceding year's annual
meeting, a shareholder's notice required by this bylaw shall also be
considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the
secretary at the principal executive offices of the corporation not later
than the close of business on the 10th day following the day on which
such public announcement is first made by the corporation.
B. Special Meetings of Shareholders. Only such business shall be
conducted at a special meeting of shareholders as shall have been brought
before the meeting pursuant to the corporation's notice of meeting pursuant to
Section 2.04 of these bylaws. Nominations of persons for election to the board
of directors may be made at a special meeting of shareholders at which
directors are to be elected pursuant to the corporation's notice of meeting (a)
by or at the direction of the board of directors or (b) by any shareholder of
the corporation who is entitled to vote at the meeting, who complies with the
notice procedures set forth in this bylaw and who is a shareholder of record at
the time such notice is delivered to the secretary of the corporation.
Nominations by shareholders of persons for election to the board of directors
may be made at such a special meeting of shareholders if the shareholder's
notice required by subparagraph (A)(2) of this bylaw shall be delivered to the
secretary at the principal executive offices of the corporation not earlier
than the 90th day prior to such special meeting and not later than the close of
business on the later of the 60th day prior to such special meeting or the 10th
day following the day on which public announcement is first made of the date of
the special meeting and of the nominees proposed by the board of directors to
be elected at such meeting.
C. General.
(1) Only persons who are nominated in accordance with the
procedures set forth in this bylaw shall be eligible to serve as
directors and only such business shall be conducted at a meeting of
shareholders as shall have been brought before the meeting in accordance
with the procedures set forth in this bylaw. Except as otherwise
provided by law, the restated articles of incorporation or these bylaws,
the chair of the board or the president of the corporation in that order
shall have the power and duty to determine whether a nomination or any
business proposed to be brought before the meeting was made in accordance
with the procedures set forth in this bylaw and, if any proposed
nomination or business is not in compliance with this bylaw, to declare
that such defective proposal or nomination shall be disregarded.
(2) For purposes of this bylaw, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document
publicly filed by the corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
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(3) Notwithstanding the foregoing provisions of this bylaw, a
shareholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this bylaw. Nothing in this bylaw shall be deemed
to affect any rights of shareholders to request inclusion of proposals in
the corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act.
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 restated articles of incorporation, these bylaws,
or any provision of Chapter 180.
Section 3.02. Number, Tenure, Class and Qualifications. The exact
number of directors, within the minimum and maximum limitation specified in
article 6 of the restated articles of incorporation, shall be fixed from time
to time by the board of directors. Members of the board of directors shall
have such qualifications as shall be fixed from time to time by the board of
directors pursuant to a resolution adopted by the board of directors. A
director may resign at any time by filing his or her written resignation with
the secretary of the corporation. No amendment to this Section 3.02 of Bylaw
III shall amend, alter, change or repeal any of the provisions of this Section
3.02, unless the amendment effecting such amendment, alteration, change or
repeal shall receive the affirmative vote or consent of the holders of four-
fifths of the shares of the corporation entitled to vote thereon; provided,
however, that if any class or series of shares is entitled to vote thereon as a
class, there shall be required the affirmative vote of four-fifths of the
shares of each class of shares and series entitled to vote thereon as a class
and of the total shares entitled to vote thereon. No amendment shall be made
to this Section 3.02 of Bylaw III by the board of directors.
Section 3.03. Election. Directors shall be elected by the shareholders
at each annual shareholders' meeting. Each director is 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. An annual 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 annual regular meeting shall be the same as the place of the
annual 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
notice other than such resolution.
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Section 3.05. Special Meetings. Special meetings of the board of
directors may be called by or at the request of the chair of the board of
directors, or the president, or a majority of the directors. 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, 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 Telephonic or Other Electronic Means of
Communication. The board of directors (and any committee thereof) 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.
Section 3.07. Manner of Acting. Subject to Section 3.09 of Bylaw III,
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 restated articles of incorporation.
No amendment to this Section 3.07 of Bylaw III shall amend, alter, change or
repeal any of the provisions of this Section 3.07, unless the amendment
effecting such amendment, alteration, change or repeal shall receive the
affirmative vote or consent of the holders of four-fifths of the shares of the
corporation entitled to vote thereon; provided, however, that if any class or
series of shares is entitled to vote thereon as a class, there shall be
required the affirmative vote of four-fifths of the shares of each class of
shares and series entitled to vote thereon as a class and of the total shares
entitled to vote thereon. No amendment shall be made to this Section 3.07 of
Bylaw III by the board of directors.
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 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 actions taken under
emergency bylaws or any other provisions of these bylaws which fix different
quorum requirements.
Section 3.09. Vacancies. Any vacancy occurring in the board of
directors, including a vacancy created by an increase in the number of
directors, shall be filled only by the affirmative vote of a majority of the
directors then in office, though less than a quorum of the board of directors.
A director elected to fill a vacancy, other than a vacancy created by an
increase in the number of directors, shall be elected for the unexpired term of
his or her predecessor. A director
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elected to fill a vacancy created by an increase in the number of directors
shall be elected for a term of office continuing only until the next succeeding
annual election of directors of any class. No amendment to this Section 3.09
of Bylaw III shall amend, alter, change or repeal any of the provisions of this
Section 3.09, unless the amendment effecting such amendment, alteration, change
or repeal shall receive the affirmative vote or consent of the holders of
four-fifths of the shares of the corporation entitled to vote thereon;
provided, however, that if any class or series of shares is entitled to vote
thereon as a class, there shall be required the affirmative vote of four-fifths
of the shares of each class of shares and series entitled to vote thereon as a
class and of the total shares entitled to vote thereon. No amendment shall be
made to this Section 3.09 of Bylaw III by the board of directors.
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 or her 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 (1) 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 the 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. A
director's attendance at or participation in a meeting waives any required
notice to him or her of the meeting unless the director at the beginning of the
meeting 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 the meeting.
Section 3.11. Conduct of Meetings. The chair of the board, and in his
or her absence, the president in that order, and in their respective absences,
any director chosen by the directors present, shall call meetings of the board
of directors to order and shall act as chair of the meeting. The secretary of
the corporation shall act as secretary of all meetings of the board of
directors, but in the absence of the secretary, the presiding officer may
appoint any assistant secretary or any director or other person present to act
as secretary of the meeting.
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 (1) establish reasonable
compensation of all directors for services to the corporation as directors or
may delegate this authority to an appropriate committee; (2) provide for, or to
delegate authority to an appropriate committee to provide for, reasonable
pensions,
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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 (3) 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 or she is a member, at which action on any corporate matter is
taken, shall be deemed to have assented to the action taken unless (1) he or
she objects at the beginning of the meeting (or promptly upon his or her
arrival) to holding it or transacting business at the meeting; or (2) minutes
of the meeting are prepared and his or her dissent or abstention from the
action taken is entered in the minutes of the meeting; or (3) he or she
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. 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 (1) authorize
distributions; (2) approve or propose to shareholders action that requires
shareholder approval; (3) amend articles of incorporation, or amend, adopt, or
repeal bylaws; (4) approve a plan of merger not requiring shareholder approval;
(5) authorize or approve reacquisition of shares except by a formula or method
approved or prescribed by the board of directors; (6) 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 (7) 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 chair 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 restated 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,
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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.
Section 3.16. Director Emeritus. The board of directors shall have the
authority to elect or appoint one or more individuals as a director emeritus,
each for a term ending on the date of the next subsequent regular annual
meeting of the board of directors held pursuant to the first sentence of
Section 3.04 of this Bylaw III. Each director emeritus shall serve in an
advisory capacity to the board of directors and shall not otherwise have the
power or authority of a director of the corporation, and shall not have the
power or authority to vote on any matters submitted to a vote of the board of
directors, nor shall the presence of any such director emeritus at a meeting of
the board of directors be counted for quorum or other attendance purposes.
BYLAW IV. OFFICERS
Section 4.01. Number and Titles. The corporation's principal officers
shall be a chair of the board, one or more vice chairmen periodically
determined by the board of directors, president, one or more vice-presidents
periodically determined by the board of directors, a secretary, a treasurer and
a corporate controller, each of whom shall be elected by the board. 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 or her successor shall have 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 or her 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.
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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 office because of death,
resignation, removal, disqualification, or other reason shall be filled in the
manner prescribed for regular appointments to the office.
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.
Section 4.08. The Chair of the Board. The chair of the board of
directors shall preside at all meetings of the board of directors and meetings
of the shareholders as provided in Section 2.09 of Bylaw II. The chair 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. Vice Chair. One or more vice chair may be elected by the
board of directors and a vice chair may, but is not required to, be a member of
the board of directors. A vice chair who is a member of the board of
directors (or, if there is more than one such vice chair, in the order of their
election) shall, in the absence of the chair of the board of directors, preside
at all meetings of the board of directors and, as provided in Section 2.09 of
Bylaw II, meetings of the shareholders. Each vice chair shall have such
authority and duties as the board of directors or the chair of the board shall
from time to time determine.
Section 4.10. 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. 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.
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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 4.11. The Vice-Presidents. In the president's absence, or in
the event of his or her 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-president shall perform
such other duties and have such authority as from time to time may be delegated
or assigned to him or her by the chair of the board of directors, the president
or by the board of directors. The execution of any instrument of the
corporation by any vice-president shall be conclusive evidence, as to third
parties, of his or her authority to act in the president's place.
Section 4.12. The Secretary. The secretary shall:
1. keep the record of all minutes of the shareholders and of the
board of directors in one or more books provided for that purpose;
2. see that all notices are duly given in accordance with these
bylaws or as required by law;
3. be custodian of the corporation's corporate records and of
the seal of the corporation and see that the books, reports, statements,
certificates, and all other documents and records required by law are
properly kept and filed;
4. 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, the numbers and classes of shares held by each;
5. 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
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where those records are kept, and have these records available at each
shareholders' meeting; and
6. 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 chair of the board, the president or by the board of
directors.
Section 4.13. The Treasurer. The treasurer shall:
1. 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 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;
2. 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 or her by the chair of the board of directors, 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 or her duties in such sum and with such surety or
sureties as the board shall determine.
Section 4.14. 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 chair of the board of directors, the president or by
the board of directors.
Section 4.15. Corporate Controller. The corporate controller shall:
1. assist the vice president in charge of corporate finance in
corporate financial planning, corporate cash management, corporate
capital project review, annual and other shareholder report preparation;
and general oversight of the corporation's internal control and other
accounting functions;
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2. in general, perform all duties incident to the office of
corporate controller and such other duties as from time to time may be
delegated or assigned to him by the vice president in charge of corporate
finance, the president or by the board of directors.
Section 4.16. Salaries. 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 as officers or employees of the corporation, may
(1) establish reasonable compensation for services to the corporation as
officers, or otherwise, or may delegate this authority to an appropriate
committee, and (2) provide for, or delegate authority to an appropriate
committee to provide for, reasonable pensions, disability or death benefits,
and other benefits or payments to officers and employees of the corporation and
to their estates, families, dependents, or beneficiaries for prior services
rendered to the corporation by the officers and employees.
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 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
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issuing corporation's security holders by the president of this corporation if
he or she be present, or in his or her absence by any vice-president of this
corporation who may be present.
Section 6.02. Proxy Authorization. Whenever, in the judgment of the
president, or in his or her absence, of any vice-president, it is desirable for
this corporation to execute a proxy or written consent 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 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:
1. 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
2. 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; or
3. 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.
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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: (1) the name of the corporation and that it is organized under the
laws of the state of Wisconsin; (2) the name of the person to whom issued; and
(3) the number and class of shares and the designation of the series, if any,
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. If the corporation is authorized to issue different classes of
shares or different series within a class, the certificate may contain a
summary of the designations, relative rights, preferences and limitations
applicable to each class, and the variations in rights, preferences and
limitations determined for each series and the authority of the board of
directors to determine variations for future series. If the certificate does
not include, on the front or back of such certificate, the above summary, it
must contain a conspicuous statement that the corporation will furnish the
shareholder with the above described summary information in writing, upon
request and without charge. 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 canceled, and no new certificate
or certificates shall be issued in exchange for any existing certificates until
the existing certificates shall have been so canceled, except in cases provided
for in Sections 8.06 and 8.07 of these bylaws.
Section 8.02. Facsimile Signatures and Seal. The seal of the
corporation on any certificates for shares may be a facsimile. The signatures
of the president or vice-president and the secretary or assistant secretary
upon a certificate may be facsimiles if the certificate is 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 or she 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 fixed from time to time by the board
of directors. The consideration to be paid for shares may be paid in whole or
in part; in cash, promissory notes, or tangible or intangible property; or in
labor or services actually performed, or contracts for services to be performed
for the corporation. 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. Prior to the issuance of
shares, the board of directors shall determine that the consideration received,
or to be received, for the shares is adequate. The board of directors'
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determination is conclusive as to the adequacy of consideration for the
issuance of shares relative to whether the shares are validly issued, fully
paid, and nonassessable.
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 or her 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 (1) there were on or with the certificate the necessary
endorsements, and (2) 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. Restrictions on Transfer. A transfer restriction imposed
by the corporation is valid and enforceable against the holder or a transferee
of the holder if the transfer restriction is authorized by Section 180.0627,
Wisconsin Statutes. The existence of such restriction shall be noted
conspicuously on the front or back of the certificate or contained in the
information statement provided to shareholders for shares without certificates.
Section 8.07. Lost, Destroyed, or Stolen Certificates. If an owner
claims that his or her share certificate has been lost, destroyed, or
wrongfully taken, a new certificate shall be issued in place of the original
certificate if the owner (1) so requests before the corporation has notice that
the shares have been acquired by a bona fide purchaser; (2) files with the
corporation a sufficient indemnity bond (unless such bond is waived by the
board of directors); and (3) satisfies such other reasonable requirements as
may be prescribed by or under the authority of the board of directors.
Section 8.08. Stock Regulations. The board of directors shall have the
power and authority to make all such further rules and regulations not
inconsistent with the statutes of the state of Wisconsin as they may deem
expedient concerning the issue, transfer and 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 its restated articles of incorporation.
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BYLAW X. INDEMNIFICATION
Section 10.01. Mandatory Indemnification.
1. Subject to the conditions and limitations of this Bylaw X and
the corporation's restated 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 (including a director emeritus) 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 (an
"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 or her in connection with or which 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) (hereinafter collectively referred to as "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 Act of 1940, as amended,
and/or their respective state counterparts and/or any rule or regulation
promulgated thereunder, in which he or she may become involved, as a
party or otherwise, by reason of his or her 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 or her in such capacity, whether or not he or she
continues to be such at the time such liability or expense is incurred,
either:
(i) to the extent he or she is successful on the merits or
otherwise in the defense of a proceeding, or
(ii) to the extent he or she is not successful on the merits
or otherwise in the defense of a proceeding, unless it is
determined pursuant to Section 10.02 of this bylaw that liability
was incurred because the executive breached or failed to perform a
duty he or she owed to the corporation and the breach or failure to
perform constituted:
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(a) 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,
(b) a violation of criminal law, unless the executive
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 executive derived an
improper personal profit, or
(d) 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
or her status as such an executive, trustee, fiduciary, administrator,
employee or agent of such plan or by reason of his or her performing
duties in any such capacities, the corporation shall indemnify and hold
harmless the executive against any and all of such expenses and
liabilities subject to the provisions of Section 10.02(1) hereof.
3. The corporation may agree to indemnify and allow reasonable
expenses for an employee or agent of the corporation who is not an
executive by general or specific action of the board of directors, or by
contract or agreement.
Section 10.02. 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 "authorities") as
may be selected by the executive seeking such indemnification:
(i) 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.
(ii) by independent legal counsel mutually selected by the
executive seeking indemnification and a quorum of the board of
directors or its committee
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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.
(iii) by a panel of three arbitrators selected from the
panels of arbitrators of the American Arbitration Association in
Wisconsin and 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. Any such arbitration shall be held in
Madison, Wisconsin (or such other location mutually acceptable to
executive and the corporation) and shall be governed by the
American Arbitration Association's then existing Commercial
Arbitration Rules and Wisconsin Law.
(iv) by a court pursuant to the Wisconsin Business
Corporation Law as it may then be in effect.
(v) by any other method provided for by the restated
articles of incorporation, contract or agreement or as otherwise
determined by the board of directors.
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 (60) days of
being selected and shall with respect to (ii) and (iii) above
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 Section 10.04),
including interest thereon as provided in Section 10.05(3) to the
executive (or to such other person or entity as he or she may designate
in writing to the corporation) within ten (10) days of receipt of such
determination.
2. The determination by any authority selected above that
indemnification of an executive is required hereunder shall be
conclusively binding upon the corporation, however, any executive may,
either before or within two (2) 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
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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 Section
10.04, including interest thereon as provided in Section 10.05(3)), to
the executive (or to such other person or entity as the executive may
designate in writing to the corporation) within ten (10) 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 Section
10.02(2), and any subsequent appeal thereof, unless it shall ultimately
be determined by the court that he or she 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 Section 10.02, the
expenses associated with the indemnification process set forth in this
Section 10.02, including, without limitation, the expenses of the
authority selected hereunder, shall be paid by the corporation.
Section 10.03. Termination of a Proceeding is Nonconclusive. The
termination of any proceeding, no matter by whom brought, 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 Act of 1940, as amended, and/or their respective
state counterparts, and/or any rule or regulation promulgated thereunder
("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 Section 10.01 of this Bylaw X.
Section 10.04. Advance Payment.
1. Within ten (10) days of an executive's written request, the
corporation shall advance expenses to, or where appropriate, at its
expense, undertake the defense of, an executive 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
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he or she is entitled to indemnification under this Bylaw X together
with a written affirmation of his or her good faith and belief that he or
she has not breached or failed to perform his or her duties to the
corporation.
2. In the event the corporation makes an advance of expenses to
the executive pursuant to this Section 10.04, 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.
Section 10.05. 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 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.
Section 10.06. 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 or her spouse,
heirs, executors or administrators after the expiration of two (2) 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.
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Section 10.07. 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 or
she 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 or her 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 or she 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.
Section 10.08. Insurance.
1. The corporation may purchase and maintain insurance on behalf
of an executive, agent or employee against any liability asserted against
him or her 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
affiliate, or arising out of his or her 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 this Bylaw X shall not in any way limit or
adversely 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 exceeds such indemnified amounts from the
corporation and for any amount to which it is entitled pursuant to the
following paragraph; 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 or any plaintiff 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
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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.
Section 10.09. 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 or her in connection with his or her
appearance as a witness in any proceeding at a time when he or she has not been
formally named a defendant or respondent to such a proceeding.
Section 10.10. Contribution.
1. In the event the indemnity provided for in Section 10.01 of
this Bylaw X 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 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 Section 10.02 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:
(i) 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
(ii) 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 Section 10.10 if it is determined by the authority
pursuant to Section 10.02 hereof, or by the court before which such
proceeding was brought, that the executive, in the performance of his or
her duty to the corporation or otherwise, violated the provisions of
Section 10.01 of this Bylaw X.
3. The corporation's payment of, and the executive's right to,
contribution under this Section 10.10 shall be made and determined in
accordance with Section 10.02 hereof relating to the corporation's
payment of, and the executive's right to, indemnification under this
Bylaw X.
Section 10.11. 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
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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.
Section 10.12. Contractual Nature of Bylaw X; Repeal or Limitation of
Rights. This Bylaw X shall be deemed to be a contract between the corporation
and each executive of the corporation and any repeal or other limitation of
this Bylaw X or any repeal or limitation of the Wisconsin Business Corporation
Law Sections 180.0850 through 180.0859 (or any other applicable law) shall not
limit any executives' rights to indemnification then existing or arising out of
events, acts or omissions occurring prior to such repeal or limitation,
including, without limitation, the right to indemnification for proceedings
commenced after such repeal or limitation to enforce this Bylaw X with regard
to acts, omissions or events arising prior to such repeal or limitation.
BYLAW XI. AMENDMENTS
Section 11.01. By Shareholders. The shareholders may amend or repeal
these bylaws or adopt new bylaws at any annual or special shareholders'
meeting.
Section 11.02. By Directors. The board of directors may amend or repeal
these bylaws or adopt new bylaws, but no bylaw adopted or amended by the
shareholders shall be amended or repealed by the board if the bylaw so adopted
so provides.
BYLAW XII. SEAL
The board of directors shall provide a corporate seal which shall be
circular in form and have inscribed thereon any designation including the name
of the corporation, Wisconsin as the state of incorporation, and the words
"Corporate Seal."
BYLAW XIII. FISCAL YEAR
The fiscal year of the corporation shall begin on the first day of
January and end on the last day of December in each year.
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