Exhibit 4.1
B Y L A W S
OF
PSB HOLDINGS, INC.
As amended on April 9, 1996
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................................3
Section 2.10. Proxies............................................3
Section 2.11. Voting of Shares...................................4
Section 2.12. Voting of Shares by Certain Holders................4
BYLAW III. BOARD OF DIRECTORS..........................................5
Section 3.01. General Powers.....................................5
Section 3.02. Number, Tenure and Qualifications..................5
Section 3.03. Election...........................................5
Section 3.04. Regular Meetings...................................5
Section 3.05. Special Meetings...................................6
Section 3.06. Meetings by Electronic Means of Communication......6
Section 3.07. Manner of Acting...................................6
Section 3.08. Quorum.............................................6
Section 3.09. Vacancies..........................................7
Section 3.10. Notice of Meetings; Waiver.........................7
Section 3.11. Conduct of Meetings................................7
Section 3.12. Compensation and Expenses..........................7
Section 3.13. Directors' Assent..................................8
Section 3.14. Committees.........................................8
Section 3.15. Action Without a Meeting...........................8
BYLAW IV. OFFICERS.....................................................9
Section 4.01. Number and Titles..................................9
Section 4.02. Election and Term of Office........................9
Section 4.03. Additional Officers, Agents, etc...................9
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Section 4.04. Removal............................................9
Section 4.05. Resignations.......................................9
Section 4.06. Vacancies..........................................9
Section 4.07. Powers, Authority and Duties......................10
Section 4.08. The Chairman of the Board.........................10
Section 4.09. The President.....................................10
Section 4.10. The Vice Presidents...............................10
Section 4.11. The Secretary.....................................12
Section 4.12. The Treasurer.....................................12
Section 4.13. Assistant Secretaries and Assistant Treasurers....12
BYLAW V. CONTRACTS, LOANS, CHECKS AND DEPOSITS.......................12
Section 5.01. Contracts.........................................12
Section 5.02. Loans.............................................12
Section 5.03. Checks, Drafts, etc...............................12
Section 5.04. Deposits..........................................12
BYLAW VI. VOTING OF SECURITIES OWNED BY THIS CORPORATION..............13
Section 6.01. Authority to Vote.................................13
Section 6.02. Proxy Authorization...............................13
BYLAW VII. CONTRACTS BETWEEN THIS CORPORATION
AND RELATED PERSONS....................................................13
BYLAW VIII. CERTIFICATES FOR SHARES AND THEIR TRANSFER................14
Section 8.01. Certificates for Shares...........................14
Section 8.02. Facsimile Signatures..............................14
Section 8.03. Signature by Former Officer.......................14
Section 8.04. Consideration for Shares..........................14
Section 8.05. Transfer of Shares................................14
Section 8.06. Lost, Destroyed or Stolen Certificates............15
Section 8.07. Stock Regulations.................................15
BYLAW IX. DISTRIBUTIONS...............................................15
BYLAW X. INDEMNIFICATION..............................................15
BYLAW XI. FISCAL YEAR.................................................22
BYLAW XII. SEAL.......................................................22
BYLAW XIII. AMENDMENTS................................................22
Section 13.01. By Shareholders..................................22
Section 13.02. By Directors.....................................22
Section 13.03. Implied Amendments...............................22
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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 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
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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;
(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
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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.
Section 2.09. Conduct of Meetings. The president or such member of the
Board of Directors as may be designated by the President to act as chairman of
a meeting of shareholders, or in the absence of the president and such
designation, the chairman of the board, or, 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 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
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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,
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
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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 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,
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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 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 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
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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 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
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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 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.
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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 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
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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.
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 president shall perform such other
duties and have such authority as from time to time may be delegated or
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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 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
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(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 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.
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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 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.
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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.
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
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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 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
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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 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.
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(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.
(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 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
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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
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
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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 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.
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(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
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.
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(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
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
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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.
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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