EXHIBIT 3B-1
WPS RESOURCES CORPORATION
BY-LAWS
As in Effect February 10, 2000
ARTICLE I. OFFICES
1. PRINCIPAL OFFICE
The principal office of the Corporation in the State of Wisconsin shall
be in the City of Green Bay. The Corporation may also have offices at
such other places, within and outside of the State of Wisconsin, as the
Board of Directors may designate or as the business of the Corporation
may require.
2. REGISTERED OFFICE
The Board of Directors shall designate the registered office of the
Corporation and may change such registered office by resolution.
ARTICLE II. SHAREHOLDERS
1. ANNUAL MEETING
The annual meeting of the shareholders ("Annual Meeting") shall be held
each year not later than the fourth Tuesday in May, at such time or on
such day as may be designated by resolution of the Board of Directors.
In fixing a meeting date for any Annual Meeting, the Board of Directors
may consider such factors as it deems relevant within the good faith
exercise of its business judgment.
2. PURPOSES OF ANNUAL MEETING
At each Annual Meeting, the shareholders shall elect the number of
directors equal to the number of directors in the class whose term
expires at the time of such Annual Meeting and transact such other
business as may properly come before the Annual Meeting in accordance
with Section 14 of Article II of these By-laws. If the election of
directors shall not be held on the date fixed as herein provided, for
any Annual Meeting, or any adjournment thereof, the Board of Directors
shall cause the election to be held at a special meeting of shareholders
(a "Special Meeting") as soon thereafter as is practicable.
3. SPECIAL MEETINGS
a. A Special Meeting may be called only by (i) the Board of Directors,
(ii) the Chairman of the Board, (iii) the President or (iv) the
Secretary and shall be
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called by the Chairman of the Board, the President or the Secretary
upon the demand, in accordance with this Section 3, of the holders
of record of shares representing at least 10% of all the votes
entitled to be cast on any issue proposed to be considered at the
Special Meeting.
b. In order that the Corporation may determine the shareholders
entitled to demand a Special Meeting, the Board of Directors may
fix a record date to determine the shareholders entitled to make
such a demand (the "Demand Record Date"). The Demand Record Date
shall not precede the date upon which the resolution fixing the
Demand Record Date is adopted by the Board of Directors and shall
not be more than ten days after the date upon which the resolution
fixing the Demand Record Date is adopted by the Board of
Directors. Any shareholder of record seeking to have shareholders
demand a Special Meeting shall, by sending written notice to the
Secretary of the Corporation by hand or by certified or registered
mail, return receipt requested, request the Board of Directors to
fix a Demand Record Date. The Board of Directors shall promptly,
but in all events within ten days after the date on which a valid
request to fix a Demand Record Date is received, adopt a
resolution fixing the Demand Record Date and shall make a public
announcement of such Demand Record Date. If no Demand Record Date
has been fixed by the Board of Directors within ten days after the
date on which such request is received by the Secretary, the
Demand Record Date shall be the 10th day after the first date on
which a valid written request to set a Demand Record Date is
received by the Secretary. To be valid, such written request
shall set forth the purpose or purposes for which the Special
Meeting is to be held, shall be signed by one or more shareholders
of record (or their duly authorized proxies or other
representatives), shall bear the date of signature of each such
shareholder (or proxy or other representative) and shall set forth
all information about each such shareholder and about the
beneficial owner or owners, if any, on whose behalf the request is
made that would be required to be set forth in a shareholder's
notice described in paragraph (a) (ii) of Section 14 of this
Article II.
c. In order for a shareholder or shareholders to demand a Special
Meeting, a written demand or demands for a Special Meeting by the
holders of record as of the Demand Record Date of shares
representing at least 10% of all the votes entitled to be cast on
any issue proposed to be considered at the Special Meeting must be
delivered to the Corporation. To be valid, each written demand by
a shareholder for a Special Meeting shall set forth the specific
purpose or purposes for which the Special Meeting is to be held
(which purpose or purposes shall be limited to the purpose or
purposes set forth in the written request to set a Demand Record
Date received by the Corporation pursuant to paragraph (b) of this
Section 3),
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shall be signed by one or more persons who as of the Demand Record
Date are shareholders of record (or their duly authorized proxies
or other representatives), shall bear the date of signature of each
such shareholder (or proxy or other representative), and shall set
forth the name and address, as they appear in the Corporation's
books, of each shareholder signing such demand and the class and
number of shares of the Corporation which are owned of record and
beneficially by each such shareholder, shall be sent to the
Secretary by hand or by certified or registered mail, return receipt
requested, and shall be received by the Secretary within seventy
days after the Demand Record Date.
d. The Corporation shall not be required to call a Special Meeting
upon shareholder demand unless, in addition to the documents
required by paragraph (c) of this Section 3, the Secretary
receives a written agreement signed by each Soliciting Shareholder
(as defined below), pursuant to which each Soliciting Shareholder,
jointly and severally, agrees to pay the Corporation's costs of
holding the Special Meeting, including the costs of preparing and
mailing proxy materials for the Corporation's own solicitation,
provided that if each of the resolutions introduced by any
Soliciting Shareholder at such meeting is adopted, and each of the
individuals nominated by or on behalf of any Soliciting
Shareholder for election as a director at such meeting is elected,
then the Soliciting Shareholders shall not be required to pay such
costs. For purposes of this paragraph (d), the following terms
shall have the meanings set forth below:
(i) "Affiliate" of any Person (as defined herein) shall mean any
Person controlling, controlled by or under common control with
such first Person.
(ii) "Participant" shall have the meaning assigned to such term
in Rule 14a-11 promulgated under the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
(iii) "Person" shall mean any individual, firm, corporation,
partnership, joint venture, association, trust,
unincorporated organization or other entity.
(iv) "Proxy" shall have the meaning assigned to such term in
Rule 14a-1 promulgated under the Exchange Act.
(v) "Solicitation" shall have the meaning assigned to such term
in Rule 14a-11 promulgated under the Exchange Act.
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(vi) "Soliciting Shareholder" shall mean, with respect to any
Special Meeting demanded by a shareholder or shareholders,
any of the following Persons:
(a) if the number of shareholders signing the demand or
demands of meeting delivered to the Corporation
pursuant to paragraph (c) of this Section 3 is ten or
fewer, each shareholder signing any such demand;
(b) if the number of shareholders signing the demand or
demands of meeting delivered to the Corporation
pursuant to paragraph (c) of this Section 3 is more
than ten, each Person who either (I) was a Participant
in any Solicitation of such demand or demands or (II)
at the time of the delivery to the Corporation of the
documents described in paragraph (c) of this Section 3
had engaged or intends to engage in any Solicitation
of Proxies for use at such Special Meeting (other than
a Solicitation of Proxies on behalf of the
Corporation); or
(c) any Affiliate of a Soliciting Shareholder, if a
majority of the directors then in office determine,
reasonably and in good faith, that such Affiliate
should be required to sign the written notice
described in paragraph (c) of this Section 3 and/or
the written agreement described in this paragraph (d)
in order to prevent the purposes of this Section 3
from being evaded.
e. Except as provided in the following sentence, any Special Meeting
shall be held at such hour and day as may be designated by
whichever of the Board of Directors, the Chairman of the Board,
the President or the Secretary shall have called such meeting. In
the case of any Special Meeting called by the Chairman of the
Board, the President or the Secretary upon the demand of
shareholders (a "Demand Special Meeting"), such meeting shall be
held at such hour and day as may be designated by the Board of
Directors; provided, however, that the date of any Demand Special
Meeting shall be not more than seventy days after the Meeting
Record Date (as defined in Section 6 of Article II of these
By-laws); and provided further that in the event that the
directors then in office fail to designate an hour and date for a
Demand Special Meeting within ten days after the date that valid
written demands for such meeting by the holders of record as of
the Demand Record Date of shares representing at least 10% of all
the votes entitled to be cast on each issue proposed to be
considered at the Special Meeting are delivered to the Corporation
(the "Delivery Date"), then such meeting shall be held at
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2:00 P.M. local time on the 100th day after the Delivery Date or,
if such 100th day is not a Business Day (as defined below), on the
first preceding Business Day. In fixing a meeting date for any
Special Meeting, the Board of Directors, the Chairman of the
Board, the President or the Secretary may consider such factors as
it or he deems relevant within the good faith exercise of its or
his business judgment, including, without limitation, the nature
of the action proposed to be taken, the facts and circumstances
surrounding any demand for such meeting, and any plan of the Board
of Directors to call an Annual Meeting or a Special Meeting for
the conduct of related business.
f. The Corporation may engage regionally or nationally recognized
independent inspectors of elections to act as an agent of the
Corporation for the purpose of promptly performing a ministerial
review of the validity of any purported written demand or demands
for a Special Meeting received by the Secretary. For the purpose
of permitting the inspectors to perform such review, no purported
demand shall be deemed to have been delivered to the Corporation
until the earlier of (i) five Business Days following receipt by
the Secretary of such purported demand and (ii) such date as the
independent inspectors certify to the Corporation that the valid
demands received by the Secretary represent at least 10% of all
the votes entitled to be cast on each issue proposed to be
considered at the Special Meeting. Nothing contained in this
paragraph (f) shall in any way be construed to suggest or imply
that the Board of Directors or any shareholder shall not be
entitled to contest the validity of any demand, whether during or
after such five Business Day period, or to take any other action
(including, without limitation, the commencement, prosecution or
defense of any litigation with respect thereto).
g. For purposes of these By-laws, "Business Day" shall mean any day
other than a Saturday, a Sunday or a day on which banking
institutions in the State of Wisconsin are authorized or obligated
by law or executive order to close.
4. PLACE OF MEETING
The Board of Directors, the Chairman of the Board, the President or the
Secretary may designate any place, either within or without the State of
Wisconsin, as the place of meeting for any Annual Meeting or for any
Special Meeting or for any postponement or adjournment thereof. If no
designation is made, the place of meeting shall be the principal
business office of the Corporation in the State of Wisconsin. Any
meeting may be adjourned to reconvene at any place designated by vote of
the Board of Directors or by the Chairman of the Board, the President or
the Secretary.
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5. NOTICE OF MEETING
Written or printed notice stating the date, time and place of any Annual
Meeting or Special Meeting shall be delivered not less than ten days
(unless a longer period is required by the Wisconsin Business
Corporation Law or the Articles of Incorporation of the Corporation) nor
more than 70 days before the date of such meeting either personally or
by mail, by or at the direction of the Chairman of the Board, the
President or the Secretary, to each shareholder of record entitled to
vote at such meeting and to such other shareholders as required by the
Wisconsin Business Corporation Law. In the event of any Demand Special
Meeting, such notice shall be sent not more than 45 days after the
Delivery Date. If mailed, notice pursuant to this Section 5 shall be
deemed to be effective when deposited in the United States mail,
addressed to the shareholder at his address as it appears on the stock
record books of the Corporation, with postage thereon prepaid. Unless
otherwise required by the Wisconsin Business Corporation Law or the
Articles of Incorporation of the Corporation, a notice of an Annual
Meeting need not include a description of the purpose for which the
meeting is called. In the case of any Special Meeting, (a) the notice
of meeting shall describe any business that the Board of Directors shall
have theretofore determined to bring before the meeting and (b) in the
case of a Demand Special Meeting, the notice of meeting (i) shall
describe any business set forth in the statement of purpose of the
demands received by the Corporation in accordance with Section 3 of this
Article II and (ii) shall contain all of the information required in the
notice received by the Corporation in accordance with Section 14(b) of
this Article II. If an Annual Meeting or Special Meeting 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 a new Meeting 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 Meeting Record
Date.
6. FIXING OF RECORD DATE
The Board of Directors may fix in advance a date not less than 10 days
and not more than 70 days prior to the date of any Annual Meeting or
Special Meeting (other than a Demand Special Meeting) as the record date
for the purpose of determining shareholders entitled to notice of, and
to vote at, such meeting ("Meeting Record Date"). If a Meeting Record
Date is not fixed by the Board of Directors or by the Wisconsin Business
Corporation Law for any Annual Meeting or Special Meeting (other than a
Demand Special Meeting), the Meeting Record Date shall be the close of
business on the day before the first notice is given to Shareholders.
In the case of any Demand Special Meeting, (i) the Meeting Record Date
shall not be later than the 30th day after the Delivery Date and (ii) if
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the Board of Directors fails to fix the Meeting Record Date within
30 days after the Delivery Date, then the close of business on such
30th day shall be the Meeting Record Date. The shareholders of record
on the Meeting Record Date shall be the shareholders entitled to notice
of, and to vote at, the meeting. Except as provided by the Wisconsin
Business Corporation Law for a court-ordered adjournment, a determination
of shareholders entitled to notice of, and to vote at, any Annual Meeting
or Special Meeting is effective for any adjournment of such meeting
unless the Board of Directors fixes a new Meeting Record Date, which it
shall do if the meeting is adjourned to a date more than 120 days after
the date fixed for the original meeting. The Board of Directors may
also fix in advance a date as the record date for the purpose of
determining shareholders entitled to take any other action or
determining shareholders for any other purpose. Such record date shall
be not more than 70 days prior to the date on which the particular
action, requiring such determination of shareholders, is to be taken.
The record date for determining shareholders entitled to a distribution
(other than a distribution involving a purchase, redemption or other
acquisition of the Corporation's shares) or a share dividend is the date
on which the Board of Directors authorizes the distribution or share
dividend, as the case may be, unless the Board of Directors fixes a
different record date.
7. VOTING RECORDS
After a Meeting Record Date has been fixed, the Corporation shall
prepare a list of the names of all of the shareholders entitled to
notice of the meeting. The list shall be arranged by class or series of
shares, if any, and show the address of, and number of shares held by,
each shareholder. Such list shall be available for inspection by any
shareholder, beginning two business days after notice of the meeting is
given for which the list was prepared and continuing to the date of the
meeting, at the Corporation's principal office or at a place identified
in the meeting notice in the city where the meeting will be held. A
shareholder or his agent may, on written demand, inspect and, subject to
the limitations imposed by the Wisconsin Business Corporation Law, copy
the list, during regular business hours and at his or her expense,
during the period that it is available for inspection pursuant to this
Section 7. The Corporation shall make the shareholders' list available
at the meeting and any shareholder or his or her agent or attorney may
inspect the list at any time during the meeting or any adjournment
thereof. Refusal or failure to prepare or make available the
shareholders' list shall not affect the validity of any action taken at
a meeting of shareholders.
8. QUORUM AND VOTING REQUIREMENTS; POSTPONEMENTS; ADJOURNMENTS
a. Shares entitled to vote as a separate voting group may take action
on a matter at any Annual Meeting or Special Meeting only if a
quorum of those
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shares exists with respect to that matter. If the Corporation has
only one class of stock outstanding, such class shall constitute a
separate voting group for purposes of this Section 8. Except as
otherwise provided in the Articles of Incorporation of this
Corporation or the Wisconsin Business Corporation Law, a majority
of the votes entitled to be cast on the matter shall constitute a
quorum of the voting group for action on that matter. Once a share
is represented for any purpose at any Annual Meeting or Special
Meeting, other than for the purpose of objecting to holding the
meeting or transacting business at the meeting, it is considered
present for purposes of determining whether a quorum exists for the
remainder of the meeting and for any adjournment of that meeting,
unless a new Meeting Record Date is or must be set for the adjourned
meeting. If a quorum exists, except in the case of the election of
directors, action on a matter shall be approved if the votes cast
within the voting group favoring the action exceed the votes cast
opposing the action, unless the Articles of Incorporation of the
Corporation or the Wisconsin Business Corporation Law requires a
greater number of affirmative votes. Unless otherwise provided in
the Articles of Incorporation of the Corporation, each director
shall be elected by a plurality of the votes cast by the shares
entitled to vote in the election of directors at any Annual
Meeting or Special Meeting at which a quorum is present.
b. The Board of Directors acting by resolution may postpone and
reschedule any previously scheduled Annual Meeting or Special
Meeting; provided, however, that a Demand Special Meeting shall
not be postponed beyond the 100th day following the Delivery Date.
Any Annual Meeting or Special Meeting may be adjourned from time
to time, whether or not there is a quorum, (i) at any time, upon a
resolution of shareholders if the votes cast in favor of such
resolution by the holders of shares of each voting group entitled
to vote on any matter theretofore properly brought before the
meeting exceed the number of votes cast against such resolution by
the holders of shares of each such voting group or (ii) at any
time prior to the transaction of any business at such meeting, by
the Chairman of the Board, the President or the Secretary or
pursuant to a resolution of the Board of Directors. No notice of
the time and place of adjourned meetings need be given except as
required by the Wisconsin Business Corporation Law. At any
adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been
transacted at the meeting as originally notified.
9. CONDUCT OF MEETINGS
The Chairman of the Board, and in his absence, the Vice Chairman of the
Board, and in his absence, the President, and in their absence, a Vice
President in the
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order provided under Section 3 of Article IV of these By-laws, and in
their absence, any person chosen by the shareholders present shall call
any Annual Meeting or Special Meeting to order and shall act as chairman
of such meeting, and the Secretary of the Corporation shall act as
secretary of all Annual Meetings and Special Meetings, but in the absence
of the Secretary, the presiding officer may appoint any other person to
act as secretary of the meeting.
10. PROXIES
At all Annual Meetings and Special Meetings, a shareholder entitled to
vote may vote in person or by proxy. A shareholder may appoint a proxy
to vote or otherwise act for the shareholder by signing an appointment
form, either personally or by his attorney-in-fact. An appointment of a
proxy is effective when received by the Secretary or other officer or
agent of the Corporation authorized to tabulate votes. An appointment
is valid for eleven months from the date of its signing unless a
different period is expressly provided in the appointment form. Unless
otherwise provided, a proxy may be revoked any time before it is voted,
either by written notice filed with the Secretary or the acting
secretary of the meeting or by oral notice given by the shareholder to
the presiding officer during the meeting. The presence of a shareholder
who has filed his proxy does not of itself constitute a revocation. The
Board of Directors shall have the power and authority to make rules
establishing presumptions as to the validity and sufficiency of proxies.
11. VOTING OF SHARES
a. Each outstanding share shall be entitled to one vote upon each
matter submitted to a vote at any Annual Meeting or Special
Meeting, except to the extent that the voting rights of the shares
of any class or classes are enlarged, limited or denied by the
Wisconsin Business Corporation Law or the Articles of
Incorporation of the Corporation.
b. Shares held by another corporation, if a sufficient number of
shares entitled to elect a majority of the directors of such other
corporation is held directly or indirectly by the Corporation,
shall not be entitled to vote at any Annual Meeting or Special
Meeting, but shares held in a fiduciary capacity may be voted.
12. ACCEPTANCE OF INSTRUMENTS SHOWING SHAREHOLDER ACTION
If the name signed on a vote, consent, waiver or proxy appointment
corresponds to the name of a shareholder, the Corporation, if acting in
good faith, may accept the vote, consent, waiver or proxy appointment
and give it effect as the act of a shareholder. If the name signed on a
vote, consent, waiver or proxy
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appointment does not correspond to the name of a shareholder, the
Corporation, if acting in good faith, may accept the vote, consent,
waiver or proxy appointment and give it effect as the act of the
shareholder if any of the following apply:
a. The shareholder is an entity and the name signed purports to be
that of an officer or agent of the entity.
b. The name purports to be that of a personal representative,
administrator, executor, guardian or conservator representing the
shareholder and, if the Corporation requests, evidence of
fiduciary status acceptable to the Corporation is presented with
respect to the vote, consent, waiver or proxy appointment.
c. The name signed purports to be that of a receiver or trustee in
bankruptcy of the shareholder and, if the Corporation requests,
evidence of this status acceptable to the Corporation is presented
with respect to the vote, consent, waiver or proxy appointment.
d. The name signed purports to be that of a pledgee, beneficial
owner, or attorney-in-fact of the shareholder and, if the
Corporation requests, evidence acceptable to the Corporation of
the signatory's authority to sign for the shareholder is presented
with respect to the vote, consent, waiver or proxy appointment.
e. Two or more persons are the shareholder as co-tenants or
fiduciaries and the name signed purports to be the name of at
least one of the co-owners and the person signing appears to be
acting on behalf of all co-owners.
The Corporation may reject a vote, consent, waiver or proxy appointment if the
Secretary or other officer or agent of the Corporation who is authorized to
tabulate votes, acting in good faith, has reasonable basis for doubt about the
validity of the signature on it or about the signatory's authority to sign for
the shareholder.
13. WAIVER OF NOTICE BY SHAREHOLDERS
A shareholder may waive any notice required by the Wisconsin Business
Corporation Law, the Articles of Incorporation of the Corporation or
these By-laws before or after the date and time stated in the notice.
The waiver shall be in writing and signed by the shareholder entitled to
the notice, contain the same information that would have been required
in the notice under applicable provisions of the Wisconsin Business
Corporation Law (except that the time and place of meeting need not be
stated) and be delivered to the Corporation for inclusion in the
corporate records. A shareholder's attendance at any Annual Meeting or
Special Meeting, in person or by proxy, waives objection to all of the
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following: (a) lack of notice or defective notice of the meeting,
unless the shareholder at the beginning of the meeting or promptly upon
arrival objects to holding the meeting or transacting business at the
meeting; and (b) consideration of a particular matter at the meeting
that is not within the purpose described in the meeting notice, unless
the shareholder objects to considering the matter when it is presented.
14. NOTICE OF SHAREHOLDER BUSINESS AND NOMINATION OF DIRECTORS
a. Annual Meetings.
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(i) Nominations of persons for election to the Board of
Directors of the Corporation and the proposal of business to
be considered by the shareholders may be made at an Annual
Meeting (A) pursuant to the Corporation's notice of meeting,
(B) by or at the direction of the Board of Directors or (C)
by any shareholder of the Corporation who is a shareholder
of record at the time of giving of notice provided for in
this Section 14 and who is entitled to vote at the meeting
and complies with the notice procedures set forth in this
Section 14.
(ii) For nominations or other business to be properly brought
before an Annual Meeting by a shareholder pursuant to clause
(C) of paragraph (a)(i) of this Section 14, the shareholder
must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a shareholder's
notice shall be received by the Secretary of the Corporation
at the principal offices of the Corporation not less than
45 days nor (except for shareholder proposals included in a
proxy statement for such Annual Meeting in accordance with
the requirements of Rule 14a-8 under the Exchange Act) more
than 70 days prior to the first annual anniversary of the
date set forth in the Corporation's proxy statement for the
immediately preceding Annual Meeting as the date on which
the Corporation first mailed definitive proxy materials for
the immediately preceding Annual Meeting (the "Anniversary
Date"); provided, however, that in the event that the date
for which the Annual Meeting is called is advanced by more
than 30 days or delayed by more than 30 days from the first
annual anniversary of the immediately preceding Annual
Meeting, notice by the shareholder to be timely must be so
delivered not earlier than the close of business on the
100th day prior to the date of such Annual Meeting and not
later than (A) the 75th day prior to the date of such Annual
Meeting or (B) the 10th day following the day on which
public announcement of the date of such Annual Meeting is
first
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made. In no event shall the announcement of an adjournment
of an Annual Meeting commence a new time period for the giving
of a shareholder notice as described above. Such
shareholder's notice shall be signed by the shareholder
of record who intends to make the nomination or introduce
the other business (or his duly authorized proxy or other
representative), shall bear the date of signature of such
shareholder (or proxy or other representative) and shall set
forth: (A) the name and address, as they appear on this
Corporation's books, of such shareholder and the beneficial
owner or owners, if any, on whose behalf the nomination or
proposal is made; (B) the class and number of shares of the
Corporation which are beneficially owned by such shareholder
or beneficial owner or owners; (C) a representation that
such shareholder is a holder of record of shares of the
Corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to make the
nomination or introduce the other business specified in the
notice; (D) in the case of any proposed nomination for
election or re-election as a director, (I) the name and
residence address of the person or persons to be nominated,
(II) a description of all arrangements or understandings
between such shareholder or beneficial owner or owners and
each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination is to be
made by such shareholder, (III) such other information
regarding each nominee proposed by such shareholder as would
be required to be disclosed in solicitations of proxies for
elections of directors, or would be otherwise required to be
disclosed, in each case pursuant to Regulation 14A under the
Exchange Act, including any information that would be
required to be included in a proxy statement filed pursuant
to Regulation 14A had the nominee been nominated by the
Board of Directors and (IV) the written consent of each
nominee to be named in a proxy statement and to serve as a
director of the Corporation if so elected; and (E) in the
case of any other business that such shareholder proposes to
bring before the meeting, (I) a brief description of the
business desired to be brought before the meeting and, if
such business includes a proposal to amend these By-laws,
the language of the proposed amendment, (II) such
shareholder's and beneficial owner's or owners' reasons for
conducting such business at the meeting and (III) any
material interest in such business of such shareholder and
beneficial owner or owners.
(iii) Notwithstanding anything in the second sentence of paragraph
(a)(ii) of this Section 14 to the contrary, in the event
that the
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number of directors to be elected to the Board of
Directors of the Corporation is increased and there is no
public announcement naming all of the nominees for director
or specifying the size of the increased Board of Directors
made by the Corporation at least 45 days prior to the
Anniversary Date, a shareholder's notice required by this
Section 14 shall also be considered timely, but only with
respect to nominees for any new positions created by such
increase, if it shall be received by the Secretary at the
principal offices of the Corporation not later than the
close of business on the 10th day following the day on which
such public announcement is first made by the Corporation.
b. Special Meetings. Only such business shall be conducted at a
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Special Meeting as shall have been described in the notice of
meeting sent to shareholders pursuant to Section 5 of Article II
of these By-laws. Nominations of persons for election to the
Board of Directors may be made at a Special Meeting at which
directors are to be elected pursuant to such notice of meeting (i)
by or at the direction of the Board of Directors or (ii) by any
shareholder of the Corporation who (A) is a shareholder of record
at the time of giving of such notice of meeting, (B) is entitled
to vote at the meeting and (C) complies with the notice procedures
set forth in this Section 14. Any shareholder desiring to
nominate persons for election to the Board of Directors at such a
Special Meeting shall cause a written notice to be received by the
Secretary of the Corporation at the principal offices of the
Corporation not earlier than ninety days prior to such Special
Meeting and not later than the close of business on the later of
(x) the 60th day prior to such Special Meeting and (y) the 10th
day following the day on which public announcement is first made
of the date of such Special Meeting and of the nominees proposed
by the Board of Directors to be elected at such meeting. Such
written notice shall be signed by the shareholder of record who
intends to make the nomination (or his duly authorized proxy or
other representative), shall bear the date of signature of such
shareholder (or proxy or other representative) and shall set
forth: (A) the name and address, as they appear on the
Corporation's books, of such shareholder and the beneficial owner
or owners, if any, on whose behalf the nomination is made; (B) the
class and number of shares of the Corporation which are
beneficially owned by such shareholder or beneficial owner or
owners; (C) a representation that such shareholder is a holder of
record of shares of the Corporation entitled to vote at such
meeting and intends to appear in person or by proxy at the meeting
to make the nomination specified in the notice; (D) the name and
residence address of the person or persons to be nominated; (E) a
description of all arrangements or understandings between such
shareholder or beneficial owner or owners and each nominee and any
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other person or persons (naming such person or persons) pursuant
to which the nomination is to be made by such shareholder; (F)
such other information regarding each nominee proposed by such
shareholder as would be required to be disclosed in solicitations
of proxies for elections of directors, or would be otherwise
required to be disclosed, in each case pursuant to Regulation 14A
under the Exchange Act, including any information that would be
required to be included in a proxy statement filed pursuant to
Regulation 14A had the nominee been nominated by the Board of
Directors; and (G) the written consent of each nominee to be named
in a proxy statement and to serve as a director of the Corporation
if so elected.
c. General.
-------
(i) Only persons who are nominated in accordance with the
procedures set forth in this Section 14 shall be eligible to
serve as directors. Only such business shall be conducted
at an Annual Meeting or Special Meeting as shall have been
brought before such meeting in accordance with the
procedures set forth in this Section 14. The chairman of
the meeting shall have the power and duty to determine
whether a nomination or any business proposed to be brought
before the meeting was made in accordance with the
procedures set forth in this Section 14 and, if any proposed
nomination or business is not in compliance with this
Section 14, to declare that such defective proposal shall be
disregarded.
(ii) For purposes of this Section 14, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news
service or in a document publicly filed by the Corporation
with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this Section 14,
a shareholder shall also comply with all applicable
requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth
in this Section 14. Nothing in this Section 14 shall be
deemed to limit the Corporation's obligation to include
shareholder proposals in its proxy statement if such
inclusion is required by Rule 14a-8 under the Exchange Act.
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ARTICLE III. BOARD OF DIRECTORS
1. GENERAL POWERS
The business and affairs of the Corporation shall be managed by its
Board of Directors. The Board shall determine the nature and character
of the business to be conducted by the Corporation and the method of
doing so; what employees, agents, and officers shall be employed and
their compensation; and what purchases or contracts for purchase shall
be made. The Board may delegate any of its aforesaid powers to
committees or to officers, agents, or employees as it may from time to
time determine.
2. NUMBER OF DIRECTORS
The number of directors of the Corporation shall be nine, divided into
three classes: Class A - 3 members, Class B - 3 members, and Class C -
3 members.
3. TERM
At the 1994 annual meeting of shareholders, the directors of Class A
shall be elected for a term to expire at the first annual meeting of
shareholders after their election, and until their successors are
elected and qualify, the directors of Class B shall be elected for a
term to expire at the second annual meeting of shareholders after their
election, and until their successors are elected and qualify, and the
directors of Class C shall be elected for a term to expire at the third
annual meeting of shareholders after their election and until their
successors are elected and qualify. At each annual meeting of
shareholders after the 1994 annual meeting of shareholders, the
successors to the class of directors whose terms shall expire at the
time of such annual meeting shall be elected to hold office until the
third succeeding annual meeting of shareholders, and until their
successors are elected and qualify.
4. QUALIFICATIONS
No director shall be eligible for re-election after attaining the age of
70 years. Directors need not be shareholders of the Corporation or
residents of the State of Wisconsin.
5. MEETINGS
The Board of Directors shall hold its meetings at such place or places,
within or without the State of Wisconsin, as the Board may from time to
time determine.
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a. A meeting of the Board of Directors, to be known as the annual
meeting, may be held, without notice, immediately after and at the
same place as the annual meeting of the shareholders at which such
Board is elected, for the purpose of electing the officers of the
Corporation and to transact such other business as may come before
the Board. Such annual meeting may be held at a different place
than the annual meeting of shareholders and/or on a date subsequent
to the annual meeting of shareholders, if notice of such different
place and/or date has been given to or waived by all the directors.
b. Regular meetings of the Board of Directors may be held without
call and without notice, at such times and in such places as the
Board may by resolution from time to time determine.
c. Special meetings of the Board of Directors may be called at any
time by the Chairman of the Board or the Chief Executive Officer
and shall be called by the Secretary of the Corporation upon the
written request of three or more directors.
6. NOTICE; WAIVER
Notice of each special meeting of the Board of Directors shall be given
by written notice delivered or communicated in person, by telegraph,
teletype, facsimile or other form of wire or wireless communication, or
by mail or private carrier, to each director at his or her business
address or at such other address as such director shall have designated
in writing filed with the Secretary, in each case not less than 48 hours
prior to the meeting. The notice need not prescribe the purpose of the
special meeting of the Board of Directors or the business to be
transacted at such meeting. If mailed, such notice shall be deemed to
be effective when deposited in the United States mail so addressed, with
postage thereon prepaid. If notice is given by telegram, such notice
shall be deemed to be effective when the telegram is delivered to the
telegraph company. If notice is given by private carrier, such notice
shall be deemed to be effective when delivered to the private carrier.
Whenever any notice whatever is required to be given to any director of
the Corporation under the Articles of Incorporation or these By-laws or
any provision of the Wisconsin Business Corporation Law, a waiver
thereof in writing, signed at any time, whether before or after the date
and time of meeting, by the director entitled to such notice shall be
deemed equivalent to the giving of such notice. The Corporation shall
retain any such waiver as part of the permanent corporate records. A
director's attendance at or participation in a meeting waives any
required notice to him or her of the meeting unless the director at the
beginning of the meeting or promptly upon his or her arrival objects to
holding the meeting or transacting business at the meeting and does not
thereafter vote for or assent to action taken at the meeting.
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7. QUORUM
Except as otherwise provided by the Wisconsin Business Corporation Law
or by the Articles of Incorporation or these By-laws, a majority of the
number of directors specified in Section 2 of Article III of these
By-laws shall constitute a quorum for the transaction of business at any
meeting of the Board of Directors. Except as otherwise provided by the
Wisconsin Business Corporation Law, the Articles of Incorporation, or
these By-laws, a quorum of any committee of the Board of Directors
created pursuant to Section 13 hereof shall consist of a majority of the
number of directors appointed to serve on the committee. A majority of
the directors present (though less than such quorum) may adjourn any
meeting of the Board of Directors or any committee thereof, as the case
may be, from time to time without further notice.
8. MANNER OF ACTING
The affirmative vote of a majority of the directors present at a meeting
of the Board of Directors or a committee thereof at which a quorum is
present shall be the act of the Board of Directors or such committee, as
the case may be, unless the Wisconsin Business Corporation Law, the
Articles of Incorporation, or these By-laws require the vote of a
greater number of directors.
9. MINUTES OF MEETINGS
Minutes of any regular or special meeting of the Board of Directors
shall be prepared and distributed to each director.
10. VACANCIES
Vacancies occurring in the Board of Directors shall be filled in the
manner provided in Article 5 of the Articles of Incorporation.
11. COMPENSATION
The Board of Directors, irrespective of any personal interest of any of
its members, may establish reasonable compensation of all directors for
services to the Corporation as directors, officers, or otherwise, or may
delegate such authority to an appropriate committee. The Board of
Directors also shall have authority to provide for or delegate authority
to an appropriate committee to provide for reasonable pensions,
disability or death benefits, and other benefits or payments, to
directors, officers, and employees and to their estates, families,
dependents, or beneficiaries on account of prior services rendered by
such directors, officers, and employees to the Corporation.
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12. PRESUMPTION OF ASSENT
A director who is present and is announced as present at a meeting of
the Board of Directors or any committee thereof created in accordance
with Section 13 of this Article III, when corporate action is taken,
assents to the action taken unless any of the following occurs:
a. The director objects at the beginning of the meeting or promptly
upon his or her arrival to holding the meeting or transacting
business at the meeting;
b. The director's dissent or abstention from the action taken is
entered in the minutes of the meeting; or
c. The director delivers written notice that complies with the
Wisconsin Business Corporation Law of his or her dissent or
abstention to the presiding officer of the meeting before its
adjournment or to the Corporation immediately after adjournment of
the meeting.
Such right of dissent or abstention shall not apply to a director who
votes in favor of the action taken.
13. COMMITTEES
The Board of Directors by resolution adopted by the affirmative vote of
a majority of all of the directors then in office may create one or more
committees, appoint members of the Board of Directors to serve on the
committees and designate other members of the Board of Directors to
serve as alternates. Each committee shall have two or more members who
shall, unless otherwise provided by the Board of Directors, serve at the
pleasure of the Board of Directors. A committee may be authorized to
exercise the authority of the Board of Directors, except that a
committee may not do any of the following:
a. Authorize distributions;
b. Approve or propose to shareholders action that the Wisconsin
Business Corporation Law requires to be approved by shareholders;
c. Fill vacancies on the Board of Directors or, unless the Board of
Directors provides by resolution that vacancies on a committee
shall be filled by the affirmative vote of the remaining committee
members, on any Board committee;
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d. Amend the Corporation's Articles of Incorporation;
e. Adopt, amend, or repeal By-laws;
f. Approve a plan of merger not requiring shareholder approval;
g. Authorize or approve reacquisition of shares, except according to
a formula or method prescribed by the Board of Directors; and
h. Authorize or approve the issuance or sale or contract for sale of
shares, or determine the designation and relative rights,
preferences and limitations of a class or series of shares, except
that the Board of Directors may authorize a committee to do so
within limits prescribed by the Board of Directors. Unless
otherwise provided by the Board of Directors in creating the
committee, a committee may employ counsel, accountants, and other
consultants to assist it in the exercise of its authority.
14. TELEPHONIC MEETINGS
Except as herein provided and notwithstanding any place set forth in the
notice of the meeting or these By-laws, members of the Board of
Directors (and any committees thereof created pursuant to Section 13 of
this Article III) may participate in regular or special meetings by, or
through the use of, any means of communication by which all participants
may simultaneously hear each other, such as by conference telephone. If
a meeting is conducted by such means, then at the commencement of such
meeting the presiding officer shall inform the participating directors
that a meeting is taking place at which official business may be
transacted. Any participant in a meeting by such means shall be deemed
present in person at such meeting. Notwithstanding the foregoing, no
action may be taken at any meeting held by such means on any particular
matter which the presiding officer determines, in his or her sole
discretion, to be inappropriate under the circumstances for action at a
meeting held by such means. Such determination shall be made and
announced in advance of such meeting.
15. ACTION WITHOUT MEETING
Any action required or permitted by the Wisconsin Business Corporation
Law to be taken at a meeting of the Board of Directors or a committee
thereof created pursuant to Section 13 of this Article III may be taken
without a meeting if the action is taken by all members of the Board or
of the committee. The action shall be evidenced by one or more written
consents describing the action taken, signed by each director or
committee member, and retained by the Corporation.
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Such action shall be effective when the last director or committee member
signs the consent, unless the consent specifies a different effective
date.
ARTICLE IV. OFFICERS
1. PRINCIPAL OFFICERS
The principal officers of the Corporation required by statute shall be a
President, such number of Vice Presidents as may be elected by the Board
of Directors, a Secretary, and a Treasurer. The Board of Directors may
elect from among the directors a Chairman of the Board of Directors and
a Vice Chairman of the Board of Directors, may designate such Chairman,
Vice Chairman, or any principal officer as the Chief Executive Officer,
may elect such assistant secretaries and assistant treasurers and other
officers as it shall deem necessary, and may prescribe by resolution
their respective powers and duties.
2. PRESIDENT
The President shall be elected by the directors. Unless the Board of
Directors otherwise prescribes, he or she shall be the Chief Executive
Officer of the Corporation. In the event that the President is not the
Chief Executive Officer, he or she shall have such powers and duties as
the Board of Directors may prescribe.
3. CHAIRMAN OF THE BOARD OF DIRECTORS
If a Chairman of the Board of Directors shall be elected, he or she
shall preside as Chairman of all meetings of the shareholders and of the
Board of Directors. He or she shall have such other authority as the
Board may from time to time prescribe. If there is no Chairman of the
Board, or in the absence of the Chairman, the presiding officer at
meetings of the shareholders, and of the Board of Directors shall be
another officer in the following order of priority: Vice Chairman of
the Board of Directors, President and Vice Presidents (subject, however,
to Section 5 of this Article).
4. CHIEF EXECUTIVE OFFICER
The Chief Executive Officer shall exercise active supervision over the
business, property, and affairs of the Corporation.
a. The Chief Executive Officer shall have authority, subject to such
rules as may be prescribed from time to time by the Board or its
committees, to appoint agents or employees other than those
elected by the Board, to
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prescribe their powers and duties, and to delegate such authority as
he or she may see fit. Any agent or employee not elected by the
Board shall hold office at the discretion of the Chief Executive
Officer or other officer employing him.
b. The Chief Executive Officer is authorized to sign, execute, and
acknowledge, on behalf of the Corporation, all deeds, mortgages,
bonds, notes, debentures, contracts, leases, reports and other
documents and instruments, except where the signing and execution
thereof by some other officer or agent shall be expressly
authorized and directed by law or by the Board or by these
By-laws. Unless otherwise provided by law or by the Board, the
Chief Executive Officer may authorize any officer, employee, or
agent to sign, execute, and acknowledge, on behalf of the
Corporation, and in his or her place and stead, all such documents
and instruments.
c. Unless otherwise ordered by the Board of Directors, the Chief
Executive Officer, or a proxy appointed by him, shall have full
power and authority, in the name of and on behalf of the
Corporation, to attend, act, and vote at any meeting of the
shareholders of any other corporation in which the Corporation may
hold shares of stock. At any such meeting, he or she shall
possess and may exercise any and all rights and powers incident to
the ownership of shares of stock.
d. The Chief Executive Officer shall have such other powers and
perform such other duties as are incident to the office of Chief
Executive Officer and as may be prescribed by the Board.
5. VICE PRESIDENTS
In the absence of the President or during his or her inability or
refusal to act, his or her powers and duties shall temporarily devolve
upon such Vice Presidents or other officers as shall be designated by
the Board of Directors or, if not designated by the Board, by the Chief
Executive Officer or other officer to whom such power may be delegated
by the Board; provided, that no Vice President or other officer shall
act as a member or chairman of any committee of the Board of Directors
of which the President is a member or chairman, except at the direction
of the Board.
a. Each Vice President shall have such powers and perform such other
duties as may be assigned to him by the Board or by the President,
including the power to sign, execute, and acknowledge all
documents and instruments referred to in Section 4 of this
Article.
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b. The Board may assign to any Vice President, general supervision
and charge over any branch of the business and affairs of the
Corporation, subject to such limitations as it may elect to
impose.
c. The Board of Directors may, if it chooses, designate one or more
of the Vice Presidents "Executive Vice President" with such powers
and duties as the Board shall prescribe.
6. SECRETARY
The Secretary shall attend, and keep the minutes of meetings of the
shareholders, of the Board of Directors and, unless otherwise directed
by any such committee, of all committees, in books provided for that
purpose; shall have custody of the corporate records and seal; shall see
that notices are given and records and reports properly kept and filed
as required by law or by these By-laws; and, in general, shall have such
other powers and perform such other duties as are incident to the office
of Secretary and as may be assigned to him or her by the Board of
Directors or the Chief Executive Officer.
7. ASSISTANT SECRETARIES
In the absence of the Secretary, or during his or her inability or
refusal to act, his or her powers and duties shall temporarily devolve
upon such one of the Assistant Secretaries as the President or the Board
of Directors may direct. The Assistant Secretaries shall have such
other powers and perform such other duties as may be assigned to them by
the Board, the Chief Executive Officer, or the Secretary.
8. TREASURER
The Treasurer shall have charge and custody of the funds, securities,
and other evidences of value of the Corporation, and shall keep and
deposit them as required by the Board of Directors. He or she shall
keep proper accounts of all receipts and disbursements and of the
financial transactions of the Corporation. He or she shall render
statements of such accounts and of money received and disbursed by him
or her and of property and money belonging to the Corporation as
required by the Board. The Treasurer shall have such other powers and
perform such other duties as are incident to the office of Treasurer and
as from time to time may be prescribed by the Board or the Chief
Executive Officer.
9. ASSISTANT TREASURERS
In the absence of the Treasurer, or during his or her inability or
refusal to act, his or her powers and duties shall temporarily devolve
upon such one of the
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Assistant Treasurers as the President or the Board of Directors may
direct. The Assistant Treasurers shall have such other powers and
perform such other duties as from time to time may be assigned to them,
respectively, by the Board, the Chief Executive Officer, or the
Treasurer.
10. OTHER ASSISTANTS AND ACTING OFFICERS
The Board of Directors shall have the power to appoint any person to act
as assistant to any officer, or as agent for the Corporation in his or
her stead, or to perform the duties of such officer whenever for any
reason it is impracticable for such officer to act personally, and such
assistant or acting officer or other agent so appointed by the Board of
Directors or an authorized officer shall have the power to perform all
the duties of the office to which he or she is so appointed to be an
assistant, or as to which he or she is so appointed to act, except as
such power may be otherwise defined or restricted by the Board of
Directors.
11. COMPENSATION
The salaries or other compensation of all officers elected as provided
under Section 1 of this Article (other than assistant officers) shall be
fixed from time to time by the Board of Directors. The salaries or
other compensation of all other agents and employees of the Corporation
shall be fixed from time to time by the Chief Executive Officer, but
only within such limits as to amount, and in accordance with such other
conditions as may be prescribed by or under the authority of the Board
of Directors.
12. TENURE
Each officer shall hold office until his or her successor shall have
been duly elected and qualified, or until his or her death, resignation,
disqualification, or removal. Any officer, agent, or employee may be
removed, with or without cause, at any time by the Board of Directors
notwithstanding the contract rights, if any, of the officer removed.
The appointment of an officer does not of itself create contract rights.
13. RESIGNATION
An officer may resign at any time by delivering notice to the
Corporation that complies with the Wisconsin Business Corporation Law.
The resignation shall be effective when the notice is delivered, unless
the notice specifies a later effective date and the Corporation accepts
the later effective date.
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14. VACANCIES
Any vacancy in any office may be filled by the Board of Directors for
the unexpired portion of the term. If a resignation of an officer is
effective at a later date as contemplated by Section 13 of this
Article IV, the Board of Directors may fill the pending vacancy before
the effective date if the Board provides that the successor may not take
office until the effective date.
15. REASSIGNMENT OF DUTIES
In case of the absence or disability of any officer of the Corporation,
or for any other reason deemed sufficient by the Board of Directors, the
Board may reassign or delegate the powers and duties, or any of them, to
any other officer, director, or person it may select.
ARTICLE V. CERTIFICATES FOR AND TRANSFER OF SHARES
1. FORM
Certificates representing shares of the Corporation shall be in such
form as shall be determined by the Board of Directors. All certificates
for shares shall be consecutively numbered or otherwise identified. The
name and address of the person to whom the shares represented thereby
are issued, with the number of shares and date of issue, shall be
entered on the stock transfer books of the Corporation. All
certificates surrendered for the transfer shall be cancelled and no new
certificate shall be issued until the former certificate for a like
number of shares shall have been surrendered and cancelled, except in
case of a lost or destroyed certificate provided for in Section 4 of
this Article V or a certificate for shares transferred in compliance
with the escheat laws of any state.
2. SIGNATURES
Certificates representing shares of the Corporation shall be signed by
the President or a Vice President and by the Secretary or an Assistant
Secretary; and may be sealed with the seal of the Corporation (which may
be a facsimile) and countersigned and registered in such manner, if any,
as the Board of Directors may prescribe. Whenever any certificate is
manually signed on behalf of a transfer agent, or a registrar, other
than the Corporation itself or an employee of the Corporation, the
signatures of the President, Vice President, Secretary, or Assistant
Secretary, upon such certificate may be facsimiles. In case any officer
who has signed, or whose facsimile signature has been placed upon such
certificate, ceases to be such officer before such certificate is
issued,
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it may be issued with the same effect as if he or she were such officer
at the date of its issue.
3. RESTRICTIONS ON TRANSFER
The face or reverse side of each certificate representing shares shall
bear a conspicuous notation of any restriction imposed by the
Corporation upon the transfer of such shares.
4. LOST, DESTROYED, OR STOLEN CERTIFICATES
Where the owner claims that his or her certificate for shares has been
lost, destroyed, or wrongfully taken, a new certificate shall be issued
in place thereof if the owner:
a. So requests before the Corporation has notice that such shares
have been acquired by a bona fide purchaser;
b. Files with the Corporation a sufficient indemnity bond; and
c. Satisfies such other reasonable requirements as may be prescribed
by or under the authority of the Board of Directors.
5. TRANSFER OF SHARES
Prior to due presentment of a certificate for shares for registration of
transfer the Corporation may treat the registered owner of such shares
as the person exclusively entitled to vote, to receive notifications,
and otherwise to have and exercise all the rights and powers of an
owner. Where a certificate for shares 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 loss as a result of
such registration of transfer if:
a. There were on or with the certificate the necessary endorsements;
and
b. The Corporation had no duty to inquire into adverse claims or has
discharged any such duty.
The Corporation may require reasonable assurance that said endorsements
are genuine and effective and compliance with such other regulations as
may be prescribed by or under the authority of the Board of Directors.
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6. CONSIDERATION FOR SHARES
The Board of Directors may authorize shares to be issued for
consideration consisting of any tangible or intangible property or
benefit to the Corporation, including cash, promissory notes, services
performed, contracts for services to be performed or other securities of
the Corporation. Before the Corporation issues shares, the Board of
Directors shall determine that the consideration received or to be
received for the shares to be issued is adequate. The determination of
the Board of Directors is conclusive insofar as the adequacy of
consideration for the issuance of shares relates to whether the shares
are validly issued, fully paid, and nonassessable. The Corporation may
place in escrow shares issued in whole or in part for a contract for
future services or benefits, a promissory note, or otherwise for
property to be issued in the future, or make other arrangements to
restrict the transfer of the shares, and may credit distributions in
respect of the shares against their purchase price, until the services
are performed, the benefits or property are received, or the promissory
note is paid. If the services are not performed, the benefits or
property are not received, or the promissory note is not paid, the
Corporation may cancel, in whole or in part, the shares escrowed or
restricted and the distributions credited.
7. OTHER RULES
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 it may deem expedient concerning the issue,
transfer, and registration of certificates representing shares of the
Corporation, including the appointment and designation of Transfer
Agents and Registrars.
ARTICLE VI. INDEMNIFICATION OF OFFICERS AND DIRECTORS
1. MANDATORY INDEMNIFICATION
a. In all cases other than those set forth in Section 1b hereof,
subject to the conditions and limitations set forth hereinafter in
this Article VI, the Corporation shall indemnify and hold harmless
any person who is or was a party, or is threatened to be made a
party, to any Action (see Section 16 of this Article VI for
definitions of capitalized terms used herein) by reason of his or
her status as an Executive, and/or as to acts performed in the
course of such Executive's duties to the Corporation and/or an
Affiliate, against Liabilities and reasonable Expenses incurred by
or on behalf of an Executive in connection with any Action,
including, without limitation, in connection with the
investigation, defense, settlement or appeal of any Action;
provided, pursuant to Section 3 of this Article VI, that it is not
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determined by the Authority, or by a court, that the Executive
engaged in misconduct which constitutes a Breach of Duty.
b. To the extent an Executive has been successful on the merits or
otherwise in connection with any Action, including, without
limitation, the settlement, dismissal, abandonment, or withdrawal
of any such Action where the Executive does not pay, incur, or
assume any material Liabilities, or in connection with any claim,
issue, or matter therein, he or she shall be indemnified by the
Corporation against reasonable Expenses incurred by or on behalf
of him or her in connection therewith. The Corporation shall pay
such Expenses to the Executive (net of all Expenses, if any,
previously advanced to the Executive pursuant to Section 2 of this
Article VI), or to such other person or entity as the Executive
may designate in writing to the Corporation, within ten days after
the receipt of the Executive's written request therefor, without
regard to the provisions of Section 3 of this Article VI. In the
event the Corporation refuses to pay such requested Expenses, the
Executive may petition a court to order the Corporation to make
such payment pursuant to Section 4 of this Article VI.
c. Notwithstanding any other provision contained in this Article VI
to the contrary, the Corporation shall not:
(1) Indemnify, contribute, or advance Expenses to an Executive
with respect to any Action initiated or brought voluntarily
by the Executive and not by way of defense, except with
respect to Actions:
(a) brought to establish or enforce a right to
indemnification, contribution, and/or an advance of
Expenses under Section 4 of this Article VI, under the
Statute as it may then be in effect or under any other
statute or law or otherwise as required;
(b) initiated or brought voluntarily by an Executive to
the extent such Executive is successful on the merits
or otherwise in connection with such an Action in
accordance with and pursuant to Section 1b of this
Article VI; or
(c) as to which the Board determines it to be appropriate.
(2) indemnify the Executive under this Article VI for any
amounts paid in settlement of any Action effected without
the Corporation's written consent.
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The Corporation shall not settle in any manner which would impose
any Liabilities or other type of limitation on the Executive
without the Executive's written consent. Neither the Corporation
nor the Executive shall unreasonably withhold their consent to any
proposed settlement.
d. An Executive's conduct with respect to an employee benefit plan
sponsored by or otherwise associated with the Corporation and/or
an Affiliate for a purpose he or she reasonably believes to be in
the interests of the participants in and beneficiaries of such
plan is conduct that does not constitute a breach or failure to
perform his or her duties to the Corporation or an Affiliate, as
the case may be.
2. ADVANCE FOR EXPENSES
a. The Corporation shall pay to an Executive, or to such other person
or entity as the Executive may designate in writing to the
Corporation, his or her reasonable Expenses incurred by or on
behalf of such Executive in connection with any Action, or claim,
issue, or matter associated with any such Action, in advance of
the final disposition or conclusion of any such Action (or claim,
issue, or matter associated with any such Action), within ten days
after the receipt of the Executive's written request therefor;
provided, the following conditions are satisfied:
(1) The Executive has first requested an advance of such
Expenses in writing (and delivered a copy of such request to
the Corporation) from the insurance carrier(s), if any, to
whom a claim has been reported under an applicable insurance
policy purchased by the Corporation and each such insurance
carrier, if any, has declined to make such an advance;
(2) The Executive furnishes to the Corporation an executed
written certificate affirming his or her good faith belief
that he or she has not engaged in misconduct which
constitutes a Breach of Duty; and
(3) The Executive furnishes to the Corporation an executed
written agreement to repay any advances made under this
Section 2 if it is ultimately determined that he or she is
not entitled to be indemnified by the Corporation for such
Expenses pursuant to this Article VI.
b. If the Corporation makes an advance of Expenses to an Executive
pursuant to this Section 2, the Corporation shall be subrogated to
every
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right of recovery the Executive may have against any insurance
carrier from whom the Corporation has purchased insurance for such
purpose.
3. DETERMINATION OF RIGHT TO INDEMNIFICATION
a. Except as otherwise set forth in this Section 3 or in Section 1c
of this Article VI, any indemnification to be provided to an
Executive by the Corporation under Section 1a of this Article VI
upon the final disposition or conclusion of any Action, or any
claim, issue, or matter associated with any such Action, unless
otherwise ordered by a court, shall be paid by the Corporation to
the Executive (net of all Expenses, if any, previously advanced to
the Executive pursuant to Section 2 of this Article VI), or to
such other person or entity as the Executive may designate in
writing to the Corporation, within 60 days after the receipt of
the Executive's written request therefor. Such request shall
include an accounting of all amounts for which indemnification is
being sought. No further corporate authorization for such payment
shall be required other than this Section 3.
b. Notwithstanding the foregoing, the payment of such requested
indemnifiable amounts pursuant to Section 1a of this Article VI
may be denied by the Corporation if:
(1) the Board by a majority vote thereof determines that the
Executive has engaged in misconduct which constitutes a
Breach of Duty; or
(2) a majority of the directors of the Corporation are a party
in interest to such Action.
c. In either event of nonpayment pursuant to Section 3b of this
Article VI, the Board shall immediately authorize and direct, by
resolution, that an independent determination be made as to
whether the Executive has engaged in misconduct which constitutes
a Breach of Duty and, therefore, whether indemnification of the
Executive is proper pursuant to this Article VI.
d. Such independent determination shall be made, at the option of the
Executive(s) seeking indemnification, by:
(1) A panel of three arbitrators (selected as set forth below in
Section 3f from the panels of arbitrators of the American
Arbitration Association) in Milwaukee, Wisconsin, in
accordance with the Commercial Arbitration Rules then
prevailing of the American Arbitration Association;
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(2) An independent legal counsel mutually selected by the
Executive(s) seeking indemnification and the Board by a
majority vote of a quorum thereof consisting of directors
who were not parties in interest to such Action (or, if such
quorum is not obtainable, by the majority vote of the entire
Board); or
(3) A court in accordance with Section 4 of this Article VI.
e. In any such determination there shall exist a rebuttable
presumption that the Executive has not engaged in misconduct which
constitutes a Breach of Duty and is, therefore, entitled to
indemnification hereunder. The burden of rebutting such
presumption by clear and convincing evidence shall be on the
Corporation.
f. If a panel of arbitrators is to be employed hereunder, one of such
arbitrators shall be selected by the Board by a majority vote of a
quorum thereof consisting of directors who were not parties in
interest to such Action or, if such quorum is not obtainable, by
an independent legal counsel chosen by the majority vote of the
entire Board, the second by the Executive(s) seeking
indemnification, and the third by the previous two arbitrators.
g. The Authority shall make its independent determination hereunder
within 60 days of being selected and shall simultaneously submit a
written opinion of its conclusions to both the Corporation and the
Executive.
h. If the Authority determines that an Executive is entitled to be
indemnified for any amounts pursuant to this Article VI, the
Corporation shall pay such amounts to the Executive (net of all
Expenses, if any, previously advanced to the Executive pursuant to
Section 2 of this Article VI), including interest thereon as
provided in Section 6c of this Article VI, or such other person or
entity as the Executive may designate in writing to the
Corporation, within ten days of receipt of such opinion.
i. Except with respect to any judicial determination pursuant to
Section 4 of this Article VI, the Expenses associated with the
indemnification process set forth in this Section 3 of this
Article VI, including, without limitation, the Expenses of the
Authority selected hereunder, shall be paid by the Corporation.
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4. COURT-ORDERED INDEMNIFICATION AND ADVANCE FOR EXPENSES
a. An Executive may, either before or within two years after a
determination, if any, has been made by the Authority, petition
the court before which such Action was brought or any other court
of competent jurisdiction to independently determine whether or
not he or she has engaged in misconduct which constitutes a Breach
of Duty and is, therefore, entitled to indemnification under the
provisions of this Article VI. 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. An Executive may petition
a court under this Section 4 either to seek an initial
determination by the court as authorized by Section 3d of this
Article VI or to seek review by the court of a previous adverse
determination by the Authority.
b. The court shall make its independent determination irrespective of
any prior determination made by the Authority; provided, however,
that there shall exist a rebuttable presumption that the Executive
has not engaged in misconduct which constitutes a Breach of Duty
and is, therefore, entitled to indemnification hereunder. The
burden of rebutting such presumption by clear and convincing
evidence shall be on the Corporation.
c. In the event the court determines that an Executive has engaged in
misconduct which constitutes a Breach of Duty, it may nonetheless
order indemnification to be paid by the Corporation if it
determines that the Executive is fairly and reasonably entitled to
indemnification in view of all of the circumstances of such
Action.
d. In the event the Corporation does not:
(1) Advance Expenses to the Executive within ten days of such
Executive's compliance with Section 2 of this Article VI; or
(2) Indemnify an Executive with respect to requested Expenses
under Section 1b of this Article VI within ten days of such
Executive's written request therefor, the Executive may
petition the court before which such Action was brought, if
any, or any other court of competent jurisdiction to order
the Corporation to pay such reasonable Expenses immediately.
Such court, after giving any notice it considers necessary,
shall order the Corporation to pay such Expenses if it
determines that the Executive has complied with the
applicable provisions of Section 2 of this Article VI or 1b
of this Article VI, as the case may be.
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e. If the court determines pursuant to this Section 4 that the
Executive is entitled to be indemnified for any Liabilities and/or
Expenses, or to the advance of Expenses, unless otherwise ordered
by such court, the Corporation shall pay such Liabilities and/or
Expenses to the Executive (net of all Expenses, if any, previously
advanced to the Executive pursuant to Section 2 of this
Article VI), including interest thereon as provided in Section 6c
of this Article VI, 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.
f. An Executive shall pay all Expenses incurred by such Executive in
connection with the judicial determination provided in this
Section 4, unless it shall ultimately be determined by the court
that he or she is entitled, in whole or in part, to be indemnified
by, or to receive an advance from, the Corporation as authorized
by this Article VI. All Expenses incurred by an Executive in
connection with any subsequent appeal of the judicial
determination provided for in this Section 4 shall be paid by the
Executive regardless of the disposition of such appeal.
5. TERMINATION OF AN ACTION IS NONCONCLUSIVE
The adverse termination of any Action against an Executive by judgment,
order settlement, conviction, or upon a plea of no contest or its
equivalent, shall not, of itself, create a presumption that the
Executive has engaged in misconduct which constitutes a Breach of Duty.
6. PARTIAL INDEMNIFICATION; REASONABLENESS; INTEREST
a. If it is determined by the Authority, or by a court, 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 Action, the Authority, or the court,
shall authorize the proration and payment by the Corporation of
such Liabilities and/or reasonable Expenses 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 Action.
b. If it is determined by the Authority, or by a court, that certain
Expenses incurred by or on behalf of an Executive are for whatever
reason unreasonable in amount, the Authority, or the court, shall
nonetheless authorize indemnification to be paid by the
Corporation to the Executive for such Expenses as the Authority,
or the court, shall deem reasonable in light of all of the
circumstances of such Action.
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c. Interest shall be paid by the Corporation to an Executive, to the
extent deemed appropriate by the Authority, or by a court, at a
reasonable interest rate, for amounts for which the Corporation
indemnifies or advances to the Executive.
7. INSURANCE; SUBROGATION
a. The Corporation may purchase and maintain insurance on behalf of
any person who is or was an Executive of the Corporation, and/or
is or was serving as an Executive of an Affiliate, against
Liabilities and/or Expenses asserted against him or her and/or
incurred by or on behalf of him or her in any such capacity, or
arising out of his or her status as such an Executive, whether or
not the Corporation would have the power to indemnify him or her
against such Liabilities and/or Expenses under this Article VI or
under the Statute as it may then be in effect. Except as
expressly provided herein, the purchase and maintenance of such
insurance shall not in any way limit or affect the rights and
obligations of the Corporation and/or any Executive under this
Article VI. Such insurance may, but need not, be for the benefit
of all Executives of the Corporation and those serving as an
Executive of an Affiliate.
b. If an Executive shall receive payment from any insurance carrier
or from the plaintiff in any Action against such 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 Article VI, such 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 such 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, retention, or co-insurance amounts, shall not
be deemed to be payments to such Executive hereunder.
c. Upon payment of indemnified amounts under this Article VI, the
Corporation shall be subrogated to such 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 shall deem necessary or advisable to secure such
rights. The Executive shall do nothing to prejudice such rights
of recovery or subrogation.
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8. WITNESS EXPENSES
The Corporation shall advance or reimburse any and all reasonable
Expenses incurred by or on behalf of an Executive in connection with his
or her appearance as a witness in any Action at a time when he or she
has not been formally named a defendant or respondent to such an Action,
within ten days after the receipt of an Executive's written request
therefor.
9. CONTRIBUTION
a. Subject to the limitations of this Section 9, if the indemnity
provided for in Section 1 of this Article VI is unavailable to an
Executive for any reason whatsoever, the Corporation, in lieu of
indemnifying the Executive, shall contribute to the amount
incurred by or on behalf of the Executive, whether for Liabilities
and/or for reasonable Expenses in connection with any Action in
such proportion as deemed fair and reasonable by the Authority, or
by a court, in light of all of the circumstances of any such
Action, in order to reflect:
(1) 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 Action; and/or
(2) 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).
b. The relative fault of the Corporation (and its other Executives,
employees, and/or agents), on the one hand, and of the Executive,
on the other hand, shall be determined by reference to, among
other things, the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent the
circumstances resulting in such Liabilities and/or Expenses. The
Corporation agrees that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro
rata allocation or any other method of allocation which does not
take account of the foregoing equitable considerations.
c. An Executive shall not be entitled to contribution from the
Corporation under this Section 9 in the event it is determined by
the Authority, or by a court, that the Executive has engaged in
misconduct which constitutes a Breach of Duty.
d. The Corporation's payment of, and an Executive's right to,
contribution under this Section 9 shall be made and determined in
accordance with
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and pursuant to the provisions in Sections 3 and/or 4 of this
Article VI relating to the Corporation's payment of, and the
Executive's right to, indemnification under this Article VI.
10. INDEMNIFICATION OF EMPLOYEES
Unless otherwise specifically set forth in this Article VI, the
Corporation shall indemnify and hold harmless any person who is or was a
party, or is threatened to be made a party to any Action by reason of
his or her status as, or the fact that he or she is or was an employee
or authorized agent or representative of the Corporation and/or an
Affiliate as to acts performed in the course and within the scope of
such employee's, agent's, or representative's duties to the Corporation
and/or an Affiliate, in accordance with and to the fullest extent
permitted by the Statute as it may then be in effect.
11. SEVERABILITY
If any provision of this Article VI shall be deemed invalid or
inoperative, or if a court of competent jurisdiction determines that any
of the provisions of this Article VI contravene public policy, this
Article VI shall be construed so that the remaining provisions shall not
be affected, but shall remain in full force and effect, and any such
provisions which are invalid or inoperative or which contravene public
policy shall be deemed, without further Action or deed by or on behalf
of the Corporation, to be modified, amended, and/or limited, but only to
the extent necessary to render the same valid and enforceable, and the
Corporation shall indemnify an Executive as to Liabilities and
reasonable Expenses with respect to any Action to the full extent
permitted by any applicable provision of this Article VI that shall not
have been invalidated and to the full extent otherwise permitted by the
Statute as it may then be in effect.
12. NONEXCLUSIVITY OF ARTICLE VI
The right to indemnification, contribution, and advancement of Expenses
provided to an Executive by this Article VI shall not be deemed
exclusive of any other rights to indemnification, contribution, and/or
advancement of Expenses which any Executive or other employee or agent
of the Corporation and/or of an Affiliate may be entitled under any
charter provision, written agreement, resolution, vote of shareholders
or disinterested directors of the Corporation or otherwise, including,
without limitation, under the Statute 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 and/or of an Affiliate or as to
acts in any other capacity while holding such office or position,
whether or not the Corporation would have the power to indemnify,
contribute, and/or advance Expenses to the Executive under this
Article VI or under the Statute; provided
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that it is not determined that the Executive or other employee or
agent has engaged in misconduct which constitutes a Breach of Duty.
13. NOTICE TO THE CORPORATION; DEFENSE OF ACTIONS
a. An Executive shall promptly notify the Corporation in writing upon
being served with or having actual knowledge of any citation,
summons, complaint, indictment, or any other similar document
relating to any Action which may result in a claim of
indemnification, contribution, or advancement of Expenses
hereunder, but the omission so to notify the Corporation will not
relieve the Corporation from any liability which it may have to
the Executive otherwise than under this Article VI unless the
Corporation shall have been irreparably prejudiced by such
omission.
b. With respect to any such Action as to which an Executive notifies
the Corporation of the commencement thereof:
(1) The Corporation shall be entitled to participate therein at
its own expense; and
(2) Except as otherwise provided below, to the extent that it
may wish, the Corporation (or any other indemnifying party,
including any insurance carrier, similarly notified by the
Corporation or the Executive) shall be entitled to assume
the defense thereof, with counsel selected by the
Corporation (or such other indemnifying party) and
reasonably satisfactory to the Executive.
c. After notice from the Corporation (or such other indemnifying
party) to the Executive of its election to assume the defense of
an Action, the Corporation shall not be liable to the Executive
under this Article VI for any Expenses subsequently incurred by
the Executive in connection with the defense thereof other than
reasonable costs of investigation or as otherwise provided below.
The Executive shall have the right to employ his or her own
counsel in such Action but the Expenses of such counsel incurred
after notice from the Corporation (or such other indemnifying
party) of its assumption of the defense thereof shall be at the
expense of the Executive unless:
(1) The employment of counsel by the Executive has been
authorized by the Corporation;
(2) The Executive shall have reasonably concluded that there may
be a conflict of interest between the Corporation (or such
other
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indemnifying party) and the Executive in the conduct
of the defense of such Action; or
(3) The Corporation (or such other indemnifying party) shall not
in fact have employed counsel to assume the defense of such
Action, in each of which cases the Expenses of counsel shall
be at the expense of the Corporation. The Corporation shall
not be entitled to assume the defense of any Derivative
Action or any Action as to which the Executive shall have
made the conclusion provided for in clause (2) above.
14. CONTINUITY OF RIGHTS AND OBLIGATIONS
The terms and provisions of this Article VI shall continue as to an
Executive subsequent to the Termination Date and such terms and
provisions shall inure to the benefit of the heirs, estate, executors,
and administrators of such Executive and the successors and assigns of
the Corporation, including, without limitation, any successor to the
Corporation by way of merger, consolidation, and/or sale or disposition
of all or substantially all of the assets or capital stock of the
Corporation. Except as provided herein, all rights and obligations of
the Corporation and the Executive hereunder shall continue in full force
and effect despite the subsequent amendment or modification of the
Corporation's Articles of Incorporation, as such are in effect on the
date hereof, and such rights and obligations shall not be affected by
any such amendment or modification, any resolution of directors or
shareholders of the Corporation, or by any other corporate action which
conflicts with or purports to amend, modify, limit, or eliminate any of
the rights or obligations of the Corporation and/or of the Executive
hereunder.
15. AMENDMENT
This Article VI may only be altered, amended, or repealed by the
affirmative vote of a majority of the shareholders of the Corporation so
entitled to vote; provided, however, that the Board may alter or amend
this Article VI without such shareholder approval if any such alteration
or amendment:
a. Is made in order to conform to any amendment or revision of the
Wisconsin Business Corporation Law, including, without limitation,
the Statute, which
(1) Expands or permits the expansion of an Executive's right to
indemnification thereunder;
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(2) Limits or eliminates, or permits the limitation or
elimination, of liability of the Executives; or
(3) Is otherwise beneficial to the Executives; or
b. In the sole judgment and discretion of the Board, does not
materially adversely affect the rights and protections of the
shareholders of the Corporation.
Any repeal, modification, or amendment of this Article VI shall not
adversely affect any rights or protections of an Executive existing
under this Article VI immediately prior to the time of such repeal,
modification, or amendment and any such repeal, modification, or
amendment shall have a prospective effect only.
16. CERTAIN DEFINITIONS
The following terms as used in this Article VI shall be defined as
follows:
a. "Action(s)" shall include, without limitation, any threatened,
pending, or completed action, claim, litigation, suit, or
proceeding, whether civil, criminal, administrative, arbitrative,
or investigative, whether predicated on foreign, Federal, state,
or local law, whether 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 their respective state
counterparts and/or any rule or regulation promulgated thereunder,
whether a Derivative Action and whether formal or informal.
b. "Affiliate" shall include, without limitation, any corporation,
partnership, joint venture, employee benefit plan, trust, or other
similar enterprise that directly or indirectly through one or more
intermediaries, controls or is controlled by, or is under common
control with, the Corporation.
c. "Authority" shall mean the panel of arbitrators or independent
legal counsel selected under Section 3 of this Article VI.
d. "Board" shall mean the Board of Directors of the Corporation.
e. "Breach of Duty" shall mean the Executive breached or failed to
perform his or her duties to the Corporation or an Affiliate, as
the case may be, and the Executive's breach of or failure to
perform those duties constituted:
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(1) A willful failure to deal fairly with the Corporation (or an
Affiliate) or its shareholders in connection with a matter
in which the Executive has a material conflict of interest;
(2) A violation of the criminal law, unless the Executive:
(a) Had reasonable cause to believe his or her conduct was
lawful; or
(b) Had no reasonable cause to believe his or her conduct
was unlawful;
(3) A transaction from which the Executive derived an improper
personal profit (unless such profit is determined to be
immaterial in light of all the circumstances of the Action);
or
(4) Willful misconduct.
f. "Derivative Action" shall mean any Action brought by or in the
right of the Corporation and/or an Affiliate.
g. "Executive(s)" shall mean any individual who is, was, or has
agreed to become a director and/or officer of the Corporation
and/or an Affiliate.
h. "Expenses" shall include, without limitation, all expenses, fees,
costs, charges, attorneys' fees and disbursements, other out-of-
pocket costs, reasonable compensation for time spent by the
Executive in connection with the Action for which he or she is not
otherwise compensated by the Corporation, any Affiliate, any third
party or other entity, and any and all other direct and indirect
costs of any type or nature whatsoever.
i. "Liabilities" shall include, without limitation, judgments,
amounts incurred in settlement, fines, penalties and, with respect
to any employee benefit plan, any excise tax or penalty incurred
in connection therewith, and any and all other liabilities of
every type or nature whatsoever.
j. "Statute" shall mean Wisconsin Business Corporation Law
Sections 180.0850-180.0859 (or any successor provisions).
k. "Termination Date" shall mean the date an Executive ceases, for
whatever reason, to serve in an employment relationship with the
Company and/or any Affiliate.
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ARTICLE VII. SEAL
BOARD OF DIRECTORS
The Board of Directors shall provide a corporate seal which shall be circular
in form and shall have inscribed thereon the words "WPS RESOURCES CORPORATION,
CORPORATE SEAL." The continued use for any purpose of any former corporate
seal or facsimile thereof shall have the same effect as the use of the
corporate seal or facsimile thereof in the form provided by the preceding
sentence.
ARTICLE VIII. AMENDMENTS
1. The Board of Directors shall have authority to adopt, amend, or repeal
the By-laws of this Corporation upon affirmative vote of a majority of
the total number of directors at a meeting of the Board, the notice of
which shall have included notice of the proposed amendment; but the
Board of Directors shall have no power to amend any By-law or to
reinstate any By-law repealed by the shareholders unless the
shareholders shall hereafter confer such authority upon the Board of
Directors.
2. The shareholders shall have power to adopt, amend, or repeal any of the
By-laws of the Corporation, at any regular or special meeting of the
shareholders, in accordance with the provisions of Article II of these
By-laws. There shall be included in the notice of such regular or
special meeting a statement of the nature of any amendment that is
proposed for the consideration of the shareholders by the holders of at
least 5% of the voting stock of the Corporation in a writing delivered
to the Secretary of the Corporation not less than 90 days prior to the
date of such meeting or by the Board of Directors.
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