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EXHIBIT 3.2
BYLAWS
OF
First Manitowoc Bancorp, Inc.
Introduction - Variable References
0.01 Date of annual shareholder's meeting (See Section 2.01):
7:00 P.M. 3rd Monday April 2000
(Hour) (Week) (Day) (Month) (First Year)
0.02 Required notice of an Annual Meeting or a Special Meeting (See Section
2.03): not less than 10 days nor more than 60 days before the date of the
meeting.
0.03 Authorized number of directors (See Section 3.02):9.
0.04 Required notice of directors' meeting (See Section 3.06):
(a) not less than 72 hours if by mail, and
(b) not less than 48 hours if any other method approved in
Section 3.06.
0.05 Fiscal year of the corporation (See Article X): January 1 -
December 31.
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ARTICLE I. OFFICES
1.01 Principal and Business Offices.................................................................5
1.02 Registered Office..............................................................................5
ARTICLE II. SHAREHOLDERS
2.01 Annual Meeting.................................................................................5
2.02 Special Meetings...............................................................................5
2.03 Notice of Annual or Special Meeting............................................................5
2.04 Nominations for Directors and Proposals of Business............................................6
A. Nominations and Proposals...............................................................6
B. Shareholder Nominations and Proposals...................................................6
2.05 Unanimous Consent Without Meeting..............................................................8
2.06 Closing of Stock Transfer Books or Fixing of Record Date.......................................8
2.07 Voting Record..................................................................................8
2.08 Quorum.........................................................................................9
2.09 Proxies........................................................................................9
2.10 Voting of Shares...............................................................................9
2.11 Voting of Shares by Certain Holders............................................................9
A. Other Corporations......................................................................9
B. Legal Representatives and Fiduciaries..................................................10
C. Pledgees...............................................................................10
D. Treasury Stock and Subsidiaries........................................................10
E. Minors.................................................................................10
F. Incompetents and Spendthrifts..........................................................10
G. Joint Tenants..........................................................................11
2.12 Conduct of Meetings...........................................................................11
2.13 Invalidity....................................................................................11
2.14 Waiver of Notice..............................................................................11
2.15 Public Announcement...........................................................................12
ARTICLE III. BOARD OF DIRECTORS
3.01 General Powers................................................................................12
3.02 Number of Directors...........................................................................12
3.03 Term of Office and Qualifications.............................................................12
3.04 Nominations...................................................................................12
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3.05 Regular Meetings..............................................................................12
3.06 Special Meetings..............................................................................13
3.07 Waiver of Notice..............................................................................13
3.08 Quorum........................................................................................13
3.09 Vacancies.....................................................................................13
3.10 Removal.......................................................................................13
3.11 Compensation..................................................................................13
3.12 Conduct of Meetings...........................................................................14
3.13 Manner of Acting..............................................................................14
3.14 Presumption of Assent.........................................................................14
3.15 Unanimous Consent Without Meeting.............................................................14
3.16 Meetings by Telephone or by Other Communication Technology....................................14
3.17 Committees....................................................................................14
A. Regular Committees.....................................................................14
B. Special Committees.....................................................................16
C. Vacancies: Temporary Appointments......................................................16
D. Committee Minutes and Reports..........................................................16
ARTICLE IV. OFFICERS
4.01 Generally.....................................................................................16
4.02 Removal.......................................................................................17
4.03 Vacancies.....................................................................................17
4.04 Chairman of the Board.........................................................................17
4.05 President.....................................................................................17
4.06 Vice Presidents...............................................................................17
4.07 Secretary.....................................................................................17
4.08 Treasurer.....................................................................................18
4.09 Assistants and Acting Officers................................................................18
4.10 Salaries......................................................................................18
ARTICLE V. FUNDS OF THE CORPORATION
5.01 Funds.........................................................................................18
5.02 Name..........................................................................................18
5.03 Loans.........................................................................................18
5.04 Disbursements.................................................................................18
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5.05 Prohibited Transactions.......................................................................18
5.06 Voting of Securities Owned by the Corporation.................................................19
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.01 Certificates for Shares.......................................................................19
6.02 Facsimile Signatures and Seal.................................................................19
6.03 Signature by Former Officer...................................................................20
6.04 Transfer of Shares............................................................................20
6.05 Restrictions on Transfer......................................................................20
6.06 Lost, Destroyed or Stolen Certificates........................................................20
6.07 Consideration for Shares......................................................................20
6.08 Uncertificated Shares.........................................................................21
6.09 Transfer Agent and Registrar..................................................................21
6.10 Stock Regulations.............................................................................21
ARTICLE VII
INDEMNIFICATION AND LIABILITY OF OFFICERS AND DIRECTORS
7.01 Indemnification...............................................................................21
7.02 Limited Liability of Directors and Officers to the Corporation and Shareholders...............24
ARTICLE VIII. CORPORATE DIVIDENDS
ARTICLE IX. CORPORATE SEAL
ARTICLE X. FISCAL YEAR
ARTICLE XI. AMENDMENTS
11.01 By Shareholders..............................................................................25
11.02 By Directors.................................................................................25
11.03 Implied Amendments...........................................................................26
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ARTICLE I. OFFICES
1.01 PRINCIPAL AND BUSINESS OFFICES. The Corporation may have such
principal and other business offices, either within or without the State of
Wisconsin, as the Board of Directors may designate or as the business of the
Corporation may require from time to time.
1.02 REGISTERED OFFICE. The registered office of the Corporation
required by the Wisconsin Business Corporation Law to be maintained in the State
of Wisconsin may be, but need not be, identical to the principal office in the
state of Wisconsin; and the address of the registered office may be changed from
time to time by the Board of Directors or by the registered agent. The business
office of the registered agent of the Corporation shall be identical to the
registered office.
ARTICLE II. SHAREHOLDERS
2.01 ANNUAL MEETING. The Annual Meeting of the Shareholders shall be
held at the principal office of the Corporation in the City of Manitowoc,
Wisconsin, unless the Board of Directors shall designate another location either
within or without the State of Wisconsin. The Annual Meeting shall be held at
the date and hour in each year set forth in Section 0.01 or at such other time
and date as may be fixed by or under the authority of the Board of Directors. If
the day fixed for the Annual Meeting shall be a legal holiday in the State of
Wisconsin, such meeting shall be held on the next succeeding business day. At
such meeting the Shareholders shall elect Directors and transact such other
business as shall lawfully come before them.
2.02 SPECIAL MEETINGS. Special Meetings of the Shareholders may be
called by the Chairman of the Board, the Secretary upon written request of a
majority of members of the Board of Directors then in office or the holders of
at least ten percent of all the votes entitled to be cast on any issue proposed
to be considered at the proposed Special Meeting if such holders sign, date and
deliver to the Secretary one or more written demands for the meeting describing
one or more purposes for which the Special Meeting is to be held. The Board of
Directors shall set the place, date and time of the Special Meeting. If no
location is designated, the place of the Special Meeting shall be the principal
business office of the Corporation in the State of Wisconsin, but any Special
Meeting may be adjourned to reconvene at any place designated by a vote of a
majority of the shares represented thereat. Only business described in the
notice of a Special Meeting may be conducted at the Special Meeting.
2.03 NOTICE OF ANNUAL OR SPECIAL MEETING. Notice may be communicated by
telegraph, teletype, facsimile or other form of wire or wireless communication,
or by mail or private carrier, and, if these forms of personal notice are
impracticable, notice may be communicated by public announcement. Such notice
stating the place, day and hour of the meeting and, in case of a Special
Meeting, a description of each purpose for which the Special Meeting is called,
shall be communicated or sent within the time period specified in Section 0.02,
by or at the direction of the Chairman of the Board or the Secretary, or other
Officer or persons calling the meeting, to each Shareholder of record entitled
to vote at such meeting. Written notice by the Corporation to its Shareholders
is effective when mailed and may be addressed to the Shareholder's address shown
in the Corporation's current record of Shareholders. Unless
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otherwise required by the Wisconsin Business Corporation Law, notice of an
Annual Meeting need not include a description of the purpose for which the
meeting is called.
2.04 NOMINATIONS FOR DIRECTORS AND PROPOSALS OF BUSINESS.
A. NOMINATIONS AND PROPOSALS. 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 the
Annual Meeting:
1. Pursuant to the Corporation's notice of the Annual Meeting;
2. By or at the direction of the Board of Directors; or
3. By any Shareholder of the Corporation who is a Shareholder
of record at the time of giving notice as provided in the
Bylaws, who is entitled to vote at the Annual Meeting and who
complies with the notice procedures set forth in Paragraph B of
Section 2.04.
B. SHAREHOLDER NOMINATIONS AND PROPOSALS. For nominations or other
business to be properly before an Annual Meeting or a Special
Meeting by a Shareholder, the Shareholder must have given adequate
notice thereof in writing to the Secretary. Adequate notice is
that notice which is received by the Secretary at the
Corporation's principal office: (1) with respect to an Annual
Meeting, not less than 90 days nor more than 120 days prior to the
date set forth in Section 0.01, provided, however, that in the
date of the Annual Meeting is advanced by more than 30 days or
postponed by more than 30 days from the date set forth in Section
0.01, notice by the Shareholder, to be adequate, must be received
as provided above not earlier than the 120th day prior to the date
of such Annual Meeting and not later than the close of business on
the later of (a) the 90th day prior to such Annual Meeting, or (b)
the tenth day following the day on which public announcement of
the date of such Annual Meeting is first made; and (2) with
respect to a Special Meeting, not later than the close of business
on the tenth day following the day on which notice of the Special
Meeting was communicated to Shareholders pursuant to Section 2.03.
In no event shall public 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 or her duly
authorized proxy or other representative), shall bear the date of
signature of such Shareholder or representative, and shall set
forth:
1. The name and address, as they appear on the Corporation's
books, of such Shareholder and the beneficial owner(s), if any,
on whose behalf the nomination or proposal is made;
2. The number of shares of the Corporation which are
beneficially
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owned by such Shareholder or beneficial owner(s);
3. 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;
4. In the case of any proposed nomination for election or
re-election as a Director:
(a) the name, age, business address and residence address of
each nominee,
(b) the principal occupation or employment of each nominee,
(c) the number of shares of stock of the Corporation
beneficially owned by each nominee,
(d) a description of all arrangements or understandings
between such Shareholder or beneficial owner(s) and each
nominee and any other person(s) (naming such person(s))
pursuant to which the nomination is to be made by the
Shareholder,
(e) 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 Securities Exchange Act
of 1934, as amended, including any information that would be
required to be included in a proxy statement filed pursuant
to Regulation 14A had the nominee been nominated by the
Board of Directors, and
(f) the written consent of each nominee to be named in a
proxy statement and to serve as a Director if so elected,
and
5. In the case of any other business that such Shareholder
proposes to bring before the meeting:
(a) a brief description of the business desired to be
brought before the meeting, and, if the business includes a
proposal to amend the Bylaws, the language of the proposed
amendment,
(b) such Shareholder's and beneficial owner's(s') reasons
for conducting such business at such time, and
(c) any material interest in such business of such
Shareholder or beneficial owners(s).
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2.05 UNANIMOUS CONSENT WITHOUT MEETING. Any action that may be taken at
a meeting of the Shareholders may be taken without a meeting if: (a) a consent
in writing setting forth the action so taken shall be signed by all of the
Shareholders entitled to vote with respect to the subject matter thereof; or (b)
if the Articles of Incorporation so provide, by Shareholders who would be
entitled to vote at a meeting of those shares with voting power to cast not less
than the minimum number or, in the case of voting by voting groups, numbers of
votes that would be necessary to authorize or take the action at a meeting at
which all shares entitled to vote were present and voted.
2.06 CLOSING OF STOCK TRANSFER BOOKS OR FIXING OF RECORD DATE. A
Shareholder shall mean the person in whose name shares are registered in the
stock transfer books of the Corporation or the beneficial owner of shares to the
extent of the rights granted by a nominee certificate on file with the
Corporation. Such nominee certificates, if any, shall be reflected in the stock
transfer books of the Corporation. For the purpose of determining Shareholders
entitled to notice of or to vote at any meeting of Shareholders or any
adjournment or postponement thereof, Shareholders entitled to demand a Special
Meeting, Shareholders entitled to receive payment of any dividend or in order to
make a determination of Shareholders for any other proper purpose, the Board of
Directors may provide that the stock transfer books shall be closed for a stated
period but not to exceed, in any case, 70 days. If the stock transfer books
shall be closed for the purpose of determining Shareholders entitled to the
notice of or to vote at a meeting of Shareholders, such books shall be closed
for at least ten days immediately preceding such meeting. In lieu of closing the
stock transfer books, the Board of Directors may fix in advance a date as the
record date for any such determination of Shareholders, such date in any case to
be not more than 70 days and, in the case of a meeting of Shareholders, not less
than ten days prior to the date on which the particular action requiring such
determination of Shareholders is to be taken. If the stock transfer books are
not closed and no record date is fixed for the determination of Shareholders
entitled to notice of or to vote at a meeting of Shareholders or Shareholders
entitled to receive payment of a dividend, the close of business on the date on
which notice of the meeting is mailed or on the date on which the resolution of
the Board of Directors declaring such dividend is adopted, as the case may be,
shall be the record date for such determination of Shareholders. When a
determination of Shareholders entitled to vote at any meeting of Shareholders
has been made as provided in this Section, such determination shall be applied
to any adjournment or postponement thereof except when the Board of Directors
fixes a new record date or date for the closing of the stock transfer books,
which it shall do if the meeting is adjourned or postponed to a date more than
120 days after the date fixed for the original meeting, or the determination has
been made through the closing of the stock transfer books and the stated period
of closing has expired.
2.07 VOTING RECORD. The Secretary shall, before each meeting of
Shareholders, make a complete list of the Shareholders entitled to vote at such
meeting, or any adjournment thereof, with the address of and the number of
shares held by each Shareholder. Such record shall be produced and kept open at
the time and place of the meeting and shall be subject to the inspection of any
Shareholder during the whole time of the meeting or any adjournment thereof for
the purposes of the meeting. The original stock transfer books shall be prima
facie evidence as to who are the Shareholders entitled to examine such record or
transfer books or to vote at any meeting of Shareholders. Failure to comply with
the requirements of this section shall not affect
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the validity of any action taken at such meeting.
2.08 QUORUM. Shares entitled to vote as a separate voting group as
defined in the Wisconsin Business Corporation Law may take action on a matter at
a meeting only if a quorum of those shares exists with respect to that matter.
Unless the Articles of Incorporation or the Wisconsin Business Corporation Law
provide otherwise, a majority of the votes entitled to be cast on the matter by
a voting group constitutes a quorum of that voting group for action on that
matter. Once a share is represented for any purposes at a meeting, other than
for the purpose of objecting to holding the meeting or transacting business at
the meeting, it is considered present for purposes of determining whether a
quorum exists, for the remainder of the meeting and for any adjournment of that
meeting unless a new record date is or must be set for that adjourned or
postponed meeting. If a quorum exists, action on a matter by a voting group is
approved if the votes cast within the voting group favoring the action exceed
the votes cast opposing the action, unless the Articles of Incorporation or the
Wisconsin Business Corporation Law require a greater number of affirmative
votes. "Voting group" means: (a) all shares of one or more classes or series
that under the Articles of Incorporation or the Wisconsin Business Corporation
Law are entitled to vote and be counted together collectively on a matter at a
meeting of Shareholders; or (b) all shares that under the Articles of
Incorporation or the Wisconsin Business Corporation Law are entitled to vote
generally on a matter. Though less than a quorum of the outstanding shares are
represented at a meeting, a majority of the shares so represented may adjourn
the meeting from time to time without further notice. At such adjourned meeting
at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
2.09 PROXIES. At all meetings of Shareholders, 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 or her attorney-in-fact. Such proxy appointment is
effective when received by the Secretary before or at the time of the meeting.
Unless otherwise provided in the appointment form of proxy, a proxy appointment
may be revoked by the Shareholder at 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 or her proxy
appointment shall not of itself constitute a revocation. No proxy appointment
shall be valid after eleven months from the date of its execution, unless
otherwise provided in the appointment form of proxy. The Board of Directors
shall have the power and authority to make rules establishing presumptions as to
the validity and sufficiency of proxy appointments.
2.10 VOTING OF SHARES. Each outstanding share shall be entitled to one
vote upon each matter submitted to a vote at a meeting of Shareholders, except
to the extent that the voting rights of the shares of any voting group or groups
are enlarged, limited or denied by the Articles of Incorporation.
2.11 VOTING OF SHARES BY CERTAIN HOLDERS.
A. OTHER CORPORATIONS. Shares standing in the name of another
corporation may be voted either in person or by proxy, by the
president of such corporation or
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any other officer appointed by such president. An appointment form
of proxy executed by any principal officer of such other
corporation or assistant thereto shall be conclusive evidence of
the signer's authority to act, in the absence of express notice to
the Corporation, given in writing to the Secretary, or the
designation of some other person by the board of directors or by
the bylaws of such other corporation.
B. LEGAL REPRESENTATIVES AND FIDUCIARIES. Shares held by an
administrator, executor, guardian, conservator, trustee in
bankruptcy, receiver or assignee for creditors may be voted by
him, her or it either in person or by proxy, without a transfer of
such shares into his, her or its name, provided that there is
filed with the Secretary before or at the time of meeting proper
evidence of his, her or its incumbency and the number of shares
held by him, her or it either in person or by proxy. An
appointment form of proxy executed by a fiduciary shall be
conclusive evidence of the signer's authority to act, in the
absence of express notice to the Corporation, given in writing to
the Secretary, that such manner of voting is expressly prohibited
or otherwise directed by the document creating the fiduciary
relationship.
C. PLEDGEES. A Shareholder whose shares are pledged shall be
entitled to vote such shares until the shares have been
transferred into the name of the pledgee, and thereafter the
pledgee shall be entitled to vote the shares so transferred;
provided, however, a pledgee shall be entitled to vote shares held
of record by the pledgor if the Corporation receives acceptable
evidence of the pledgee's authority to sign.
D. TREASURY STOCK AND SUBSIDIARIES. Neither treasury shares, nor
shares held by another corporation if a majority of the shares
entitled to vote for the election of directors of such other
corporation is held by the Corporation, shall be voted at any
meeting or counted in determining the total number of outstanding
shares entitled to vote, but shares of its own issue held by the
Corporation in a fiduciary capacity, or held by such other
corporation in a fiduciary capacity, may be voted and shall be
counted in determining the total number of outstanding shares
entitled to vote.
E. MINORS. Shares held by a minor may be voted by such minor in
person or by proxy and no such vote shall be subject to
disaffirmance or avoidance, unless prior to such vote the
Secretary has received written notice or has actual knowledge that
such Shareholder is a minor. Shares held by a minor may be voted
by a personal representative, administrator, executor, guardian or
conservator representing the minor if evidence of such fiduciary
status, acceptable to the Corporation, is presented.
F. INCOMPETENTS AND SPENDTHRIFTS. Shares held by an incompetent or
spendthrift may be voted by such incompetent or spendthrift in
person or by proxy and no such vote shall be subject to
disaffirmance or avoidance, unless prior to
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such vote the Secretary has actual knowledge that such Shareholder
has been adjudicated an incompetent or spendthrift or actual
knowledge of judicial proceedings for appointment of a guardian.
Shares held by an incompetent or spendthrift may be voted by a
personal representative, administrator, executor, guardian or
conservator representing the minor if evidence of such fiduciary
status, acceptable to the Corporation, is presented.
G. JOINT TENANTS. Shares registered in the names of two or more
individuals who are named in the registration as joint tenants may
be voted in person or by proxy signed by any one or more of such
individuals if either (i) no other such individual or his or her
legal representative is present and claims the right to
participate in the voting of such shares or prior to the vote
files with the Secretary a contrary written voting authorization
or direction or written denial of authority of the individual
present or signing the appointment form of proxy proposed to be
voted, or (ii) all such other individuals are deceased and the
Secretary has no actual knowledge that the survivor has been
adjudicated not to be the successor to the interests of those
deceased.
2.12 CONDUCT OF MEETINGS. The Chairman of the Board, or in the
Chairman's absence, the President, or in their absence, such Vice President as
is designated by the Board of Directors, or in their absence, any person chosen
by the Shareholders, shall call the meeting to order and act as Chairperson of
the meeting. Only persons nominated in accordance with the procedures set forth
in Section 2.04 shall be eligible to serve as Directors. Only such business as
shall have been brought before a meeting in accordance with the procedures set
forth in Section 2.04 shall be eligible to be conducted. The Chairperson of the
meeting shall have the power and duty to determine whether any nomination or any
business proposed to be brought before the meeting was made in accordance with
the procedures set forth in Section 2.04, and, if any proposed nomination or
business is not in compliance therewith, to declare that such defective proposal
shall be disregarded. The Secretary of the Corporation shall act as Secretary of
all meetings of the Shareholders, but in the absence of the Secretary, the
Chairperson of the meeting may appoint any other person to act as Secretary of
the meeting.
2.13 INVALIDITY. The Chairperson, upon recommendation of the Secretary,
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 doubt about the validity of the signature
on it or about the signatory's authority to sign for the Shareholder. The
Corporation and its Officer or agent who accepts or rejects a vote, consent,
waiver or proxy appointment in good faith and in accordance with the Wisconsin
Business Corporation Law shall not be liable for damages to the Shareholders for
consequences of the acceptance or rejection.
2.14 WAIVER OF NOTICE. A Shareholder may waive any notice required by
the Wisconsin Business Corporation Law, the Articles of Incorporation, or these
Bylaws 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 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
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records. A Shareholder's attendance at any Annual Meeting or Special Meeting, in
person or by proxy, waives objection to all of the following: (a) lack of notice
or defective notice of the meeting, unless the Shareholder promptly upon arrival
or at the beginning of the meeting objects to holding or transacting business at
the meeting; and (b) consideration of a particular matter at the meeting that is
not within the purpose described in the meeting notice, unless the Shareholder
objects to considering the matter when it is presented.
2.15 PUBLIC ANNOUNCEMENT. For purposes of this Article II, "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 Securities Exchange Act of
1934, as amended.
ARTICLE III. BOARD OF DIRECTORS
3.01 GENERAL POWERS. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of the Corporation shall be
managed under the direction of, the Board of Directors, subject to any
limitation set forth in the Bylaws or the Articles of Incorporation.
3.02 NUMBER OF DIRECTORS. The number of Directors shall be as provided
in Section 0.03, all of whom shall be nominated and elected by the Shareholders
as provided herein.
3.03 TERM OF OFFICE AND QUALIFICATIONS. Elected Directors shall hold
office for a term of three years and until their successors are elected and
qualified, except as otherwise provided in the Bylaws, or until their death,
resignation or removal. The Board of Directors shall be divided into three
classes which are as equal in number as possible. The term of office of the
first class of Directors shall expire at the first annual meeting after their
initial election and when their successors are elected and qualified, the term
of office of the second class shall expire at the second annual meeting after
their initial election and when their successors are elected and qualified and
the terms of office of the third class shall expire at the third annual meeting
after their initial election and when their successors are elected and
qualified. At each annual meeting after the initial election and classification,
the class of Directors whose term expires at the time of such election shall be
elected to hold office until the third succeeding annual meeting and until their
successors are elected and qualified. A person who has attained the age of 70
years may not be nominated for election to the Board of Directors; any Director
who attains the age of 70 years during the course of his or her term as
Director, shall serve up to the first Annual Meeting following such birthday, at
which time he or she shall be ineligible for re-election.
3.04 NOMINATIONS. Nominations for the election of directors shall be
made in accordance with the provisions of Section 2.04, which requirements are
hereby incorporated by reference in Section 3.04.
3.05 REGULAR MEETINGS. A Regular Meeting of the Board of Directors
shall be held without other notice than Section 3.05 immediately after, and at
the same place as, the Annual Meeting of Shareholders, for election of corporate
officers and transaction of other business. The Board of Directors may provide
by resolution the time and place for holding additional meetings
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without other notice than such resolution.
3.06 SPECIAL MEETINGS. Special Meetings of the Board of Directors shall
be held whenever called by the Chairman of the Board, the President or the
Secretary upon written request of any two Directors. The Secretary shall give
sufficient notice of such meeting, to be not less than the number of hours prior
thereto as set forth in Section 0.04, in person or by mail, telephone,
telegraph, teletype, facsimile or other form of wire or wireless communication
as to enable the Directors so notified to attend such meeting. The Chairman or
Secretary who calls the meeting may fix any place, within or without the State
of Wisconsin, as the place for holding any Special Meeting of the Board of
Directors.
3.07 WAIVER OF NOTICE. Whenever any notice is required to be given to
any Director under the Articles of Incorporation or Bylaws or any provisions of
law, a waiver thereof in writing, signed at any time, whether before or after
the time of meeting, by the Director entitled to such notice, shall be deemed
equivalent to the giving of such notice, and the Corporation shall retain copies
of such waivers in its 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. Neither the business to be transacted at, nor the purpose of, any
Regular or Special Meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
3.08 QUORUM. Except as otherwise provided by the Wisconsin Business
Corporation Law or the Articles of Incorporation or Bylaws, a majority of the
Directors then in office, at a meeting convened according to the Bylaws, shall
constitute a quorum for the transaction of business; but a majority of the
Directors present or participating (though less than a quorum) may adjourn the
meeting from time to time without further notice.
3.09 VACANCIES. Vacancies, including those created by an increase in
the number of Directors on the Board of Directors, may be filled by the
remaining Directors. A Director elected to fill a vacancy shall serve for the
unexpired term of his or her predecessor. In the absence of action by the
remaining Directors, the Shareholders may fill such vacancy at a Special Meeting
or an Annual Meeting in accordance with the Articles of Incorporation or the
Bylaws.
3.10 REMOVAL. The Shareholders may remove one or more Directors, with
or without cause, at a meeting called for that purpose, the notice of which
reflects that purpose, in accordance with the Wisconsin Business Corporation
Law.
3.11 COMPENSATION. A Director may receive such compensation for
services as is determined by resolution of the Board irrespective of any
personal interest of its members. A Director also may serve the Corporation in
any other capacity and receive compensation therefor. The Board of Directors
also shall have authority to provide for or to delegate authority to an
appropriate committee to provide for reasonable pensions, disability or death
benefits and other benefits or payments, to Directors, Officers and employees
and to their estates, families, dependents or beneficiaries on account of prior
services rendered to the Corporation by such
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Directors, Officers and employees.
3.12 CONDUCT OF MEETINGS. The Chairman of the Board or, in the
Chairman's absence, the President, or in their absence, such Vice President as
is designated by the Board of Directors, shall call meetings of the Board of
Directors to order and shall act as Chairperson of the meeting. The Secretary
shall act as Secretary of all meetings of the Board of Directors, but in the
absence of the Secretary, the Chairperson of the meeting may appoint an
Assistant Secretary or any Director or other person present or participating to
act as Secretary of the meeting.
3.13 MANNER OF ACTING. If a quorum is present or participating when a
vote is taken, the affirmative vote of a majority of Directors present or
participating is the act of the Board of Directors or a committee of the Board
of Directors, unless the Wisconsin Business Corporation Law or the Articles of
Incorporation or Bylaws require the vote of a greater number of Directors.
3.14 PRESUMPTION OF ASSENT. A Director who is present at or
participates in a meeting of the Board of Directors or a committee thereof of
which he or she is a member, at which action on any corporate matter is taken,
shall be presumed to have assented to the action taken unless his or her dissent
shall be entered in the minutes of the meeting or unless he or she shall file
his or her written dissent to such action with the person acting as the
Secretary of the meeting before the adjournment thereof or shall forward such
dissent by registered mail to the Secretary immediately after the adjournment of
the meeting. Such right to dissent shall not apply to a Director who voted in
favor of such action.
3.15 UNANIMOUS CONSENT WITHOUT MEETING. Any action required or
permitted by the Articles of Incorporation or Bylaws or any provision of law to
be taken by the Board of Directors at a meeting or by resolution may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all of the Directors then in office.
3.16 MEETINGS BY TELEPHONE OR BY OTHER COMMUNICATION TECHNOLOGY.
Meetings of the Board of Directors or committees may be conducted by telephone
or by other communication technology in accordance with Section 180.0820 of the
Wisconsin Business Corporation Law or any successor statute.
3.17 COMMITTEES.
A. REGULAR COMMITTEES.
1. General Description. In order to facilitate the work of the
Board of Directors, the following Regular Committees shall be
elected from the membership of the Board of Directors at the
Regular Meeting held each year (or at such other time as the
Board of Directors may determine):
Audit Committee
Each Regular Committee shall have three to six members. The
Chairman of the Board of Directors, and in the Chairman's
absence the President, and in their absence, such Vice
President as is designated by the Board of
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Directors, shall submit nominations for such Regular
Committee memberships. Regular Committee members shall hold
office until the next Board meeting at which Regular
Committee elections are conducted in accordance with the
Bylaws, and until their successors are elected and
qualified. Each Regular Committee of the Board of Directors
may exercise the authority of the full Board when the Board
is not in session and solely with regard to and within the
scope of the duties and powers delegated to it in the
Bylaws, except that no committee of the Board shall do any
of the following:
(a) Authorize distributions;
(b) Approve or propose to Shareholders action that
the Wisconsin Business Corporation Law requires be
approved by Shareholders;
(c) Fill vacancies on the Board of Directors or,
except as provided herein, on any of its committees;
(d) Amend the Articles of Incorporation;
(e) Adopt, amend or repeal the Bylaws;
(f) Approve a plan of merger not requiring
Shareholder approval;
(g) Authorize or approve reacquisition of shares,
except according to a formula or method prescribed
by the Board; or
(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 or a senior executive Officer to do so
within limits prescribed by the Board of Directors.
2. The Audit Committee. The Audit Committee shall:
(a) Select and engage independent certified public
accountants to audit the books, records and financial
transactions of the Corporation;
(b) Review with the independent accountants the scope of
their examination, with particular emphasis on the areas
to which either the Audit Committee or the independent
accountants believe special attention should be
directed. The Audit Committee may have the independent
accountants perform such additional procedures as the
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Audit Committee or the auditors deem necessary;
(c) Review and approve an annual plan for the financial
audit (internal audit) department;
(d) Review with the independent accountants the
financial statements and auditors' reports thereon;
(e) Review the management letter of the independent
accountants and audit reports by the Corporation's
internal auditors to assure that appropriate action has
been taken by Senior Management as to each item
recommended;
(f) Encourage the independent accountants and the
internal auditors to communicate directly with the
Chairman of the Board and President or, if necessary,
the Chairman of the Audit Committee whenever any
significant recommendation has not been satisfactorily
resolved at the Senior Management level;
(g) Review conflict of interest statements to assure the
Board of Directors that any conflict of interest has
been duly reported to and reviewed by the Audit
Committee;
(h) Review and approve all related party transactions;
and
(i) Carry out such special assignments as the Board of
Directors may, from time to time, give to the Audit
Committee.
B. SPECIAL COMMITTEES. In addition to the Regular Committees,
the Board of Directors may, from time to time, establish
Special Committees and specify the composition, functions and
authority of any Special Committee.
C. VACANCIES: TEMPORARY APPOINTMENTS. When, for any cause, a
vacancy occurs in a Regular Committee, the remaining
committee members, by majority vote, may fill such vacancy by
a temporary appointment of a Director not on the subject
committee to fill the vacancy until the next meeting of the
Board, at which time the Board may fill the vacancy.
D. COMMITTEE MINUTES AND REPORTS. All of the foregoing
committees shall keep minutes and records of all of their
meetings and activities and shall report the same to the
Board of Directors at its next regular meeting. Such minutes
and records shall be available for inspection by the
Directors at all times.
ARTICLE IV. OFFICERS
4.01 GENERALLY. The principal Officers of the Corporation shall be a
Chairman of the Board, a President, one or more Vice Presidents, a Secretary and
a Treasurer. The Board of
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Directors shall elect the principal Officers annually at the Regular Meeting.
All Officers shall hold office for a period of one year and until their
successors are duly elected and qualified, or until their prior death,
resignation or removal. Each Officer has the authority and shall perform the
duties set forth in the Bylaws or, to the extent not inconsistent with the
Bylaws, the duties prescribed by the Board of Directors or by direction of an
Officer authorized by the Bylaws or by the Board of Directors to prescribe the
duties of other Officers.
4.02 REMOVAL. Any Officer or agent may be removed by the Board of
Directors with or without cause whenever, in its judgment, the best interests of
the Corporation would be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed.
Election or appointment shall not of itself create contract rights.
4.03 VACANCIES. A vacancy in any principal office because of death,
resignation, removal or otherwise, shall be filled by the Board of Directors for
the unexpired portion of the term. The Board of Directors may, from time to
time, omit to elect one or more Officers, or may omit to fill a vacancy, and in
such case, the designated duties of such Officer, unless otherwise provided in
the Bylaws, shall be discharged by the Chairman of the Board or such other
Officer as he or she may designate.
4.04 CHAIRMAN OF THE BOARD. The Chairman of the Board shall preside at
all meetings of the Shareholders and of the Board of Directors. He or she shall
supervise the carrying out of the policies adopted or approved by the Board. He
or she shall have and may exercise such further powers and duties as from time
to time may be conferred upon, or assigned to, him or her by the Board of
Directors.
4.05 PRESIDENT. The President shall be the principal executive officer
of the Corporation and shall have general supervision of the business and
affairs of the Corporation. He or she shall have authority, subject to any rules
as may be prescribed by the Board of Directors, to appoint such agents and
employees of the Corporation as he or she shall deem necessary, to prescribe
their powers, duties and compensation, and to delegate authority to them. Such
agents and employees shall hold office at the discretion of the President. The
President may sign and execute all authorized bonds, notes, checks, contracts,
deeds, mortgages, instruments of assignment or pledge or other obligations of
the Corporation in the name of the Corporation.
4.06 VICE PRESIDENTS. Should the Chairman of the Board or the President
be absent or unable to act, the Board of Directors shall designate one or more
Vice Presidents or other Officer to discharge the duties of the vacant office
with the same power and authority as is vested in that office. The Vice
Presidents shall perform such other duties as from time to time may be assigned
to them by the President or the Board of Directors.
4.07 SECRETARY. The Secretary shall keep a record of the minutes of the
meetings of the Shareholders and of the Board of Directors. He or she shall
countersign all instruments and documents executed by the Corporation, affix to
instruments and documents the seal of the Corporation when necessary or required
keep in books therefor the transactions of the Corporation, see that all notices
are duly given in accordance with the provisions of the Bylaws or as required by
law and perform such other duties as usually are incident to such office or may
be
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assigned by the Chairman of the Board, the President or the Board of Directors.
4.08 TREASURER. The Treasurer, subject to the control of the Board of
Directors, shall collect, receive, and safely keep all monies, funds and
securities of the Corporation and attend to all its pecuniary affairs. He or she
shall keep full and complete accounts and records of all its transactions, of
sums owing to or by the Corporation and all rents and profits in its behalf. The
Treasurer shall perform such other duties as usually are incident to such office
or may be assigned to him or her by the President or the Board of Directors.
4.09 ASSISTANTS AND ACTING OFFICERS. The Chairman of the Board, the
President and 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 the
Officer's stead, or to perform the duties of such Officer whenever for any
reason it is impracticable for the Officer to act personally, and the assistant
or acting Officer or other agent so appointed by the Chairman of the Board, the
President or the Board of Directors shall have the power to perform all the
duties of the office to which he or she is so appointed to be assistant, or as
to which he or she is so appointed to act, except as such power otherwise may be
defined or restricted by the Chairman of the Board, the President or the Board
of Directors.
4.10 SALARIES. The salaries of the principal Officers shall be fixed
from time to time by the Board of Directors or by a duly authorized committee
thereof and no Officer shall be prevented from receiving such salary by reason
of the fact that he or she is also a Director of the Corporation.
ARTICLE V. FUNDS OF THE CORPORATION
5.01 FUNDS. All funds of the Corporation shall be deposited or invested
as may be authorized from time to time by the Board of Directors or appropriate
committee under authorization of the Board of Directors.
5.02 NAME. All investments and deposits of funds of the Corporation
shall be made and held in its corporate name, except that securities kept under
a custodial agreement or trust arrangement with a bank or banking and trust
company may be issued in the name of a nominee of such bank or banking and trust
company and except that securities may be acquired and held in bearer form.
5.03 LOANS. All loans contracted on behalf of the Corporation and all
evidences of indebtedness that are issued in the name of the Corporation shall
be under the authority of a resolution of the Board of Directors. Such
authorization may be general or specific.
5.04 DISBURSEMENTS. All monies of the Corporation shall be disbursed by
check, draft or written order only, and all checks and orders for the payment of
money shall be signed by such Officer or Officers as may be designated by the
Board of Directors. The Officers and employees of the Corporation handling funds
and securities of the Corporation shall give surety bonds in such sums as the
Board of Directors or appropriate committee may require.
5.05 PROHIBITED TRANSACTIONS. No Director or Officer of the Corporation
shall
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borrow money from the Corporation or receive any compensation for selling,
aiding in the sale, negotiating for the sale of any property belonging to the
Corporation or for negotiating any loan for or by the Corporation.
5.06 VOTING OF SECURITIES OWNED BY THE CORPORATION. Subject always to
the directions of the Board of Directors:
A. Any shares or other securities issued by any other corporation
and owned or controlled by the Corporation may be voted at any
meeting of security holders of such other corporation by the
Chairman of the Board, the President or, in their absence, any
Vice President of the Corporation who may be present and
designated by the Board of Directors; and
B. Whenever, in the judgment of the Chairman of the Board, the
President or, in their absence, a designated Vice President, it is
desirable for the Corporation to execute a proxy or written
consent in respect to any shares or other securities issued by any
other corporation and owned by the Corporation, such proxy or
consent shall be executed in the name of the Corporation by the
Chairman of the Board, the President or a designated Vice
President of the Corporation in the order as provided in Paragraph
A of Section 5.06, without necessity of any authorization by the
Board of Directors, affixation of corporate seal or
countersignature or attestation by another Officer. Any person or
persons designated in the manner above stated as the proxy or
proxies of the Corporation shall have full right, power and
authority to vote the shares or other securities issued by such
other corporation and owned by the Corporation the same as such
shares or other securities might be voted by the Corporation.
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.01 CERTIFICATES FOR SHARES. Certificates representing shares of the
Corporation shall be in such form, consistent with law, as shall be determined
by the Board of Directors. Such Certificates shall be signed by the Chairman of
the Board, the President or a Vice President and the Secretary or by another
Officer designed by the Chairman of the Board, the President or the Board of
Directors. All Certificates 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 to the Corporation for transfer shall be canceled and no new
Certificate shall be issued until the former Certificate for a like number of
shares shall have been surrendered and canceled, except as provided in Section
6.06.
6.02 FACSIMILE SIGNATURES AND SEAL. The seal of the Corporation, if
any, on any Certificates may be a facsimile. The signature of the Chairman of
the Board, the President or other authorized Officer upon a Certificate may be a
facsimile if the Certificate is manually signed on behalf of a transfer agent or
a registrar, other than the Corporation itself or an employee of the
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Corporation.
6.03 SIGNATURE BY FORMER OFFICER. If any Officer who has signed or
whose facsimile signature has been placed upon any Certificate shall have ceased
to be an Officer before such Certificate is issued, it may be issued by the
Corporation with the same effect as if he or she were an Officer at the date of
its issue.
6.04 TRANSFER OF SHARES. Prior to due presentment of a Certificate for
registration of transfer, the Corporation may treat the Shareholder 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 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 in compliance with such other regulations as may be
prescribed by or under the authority of the Board of Directors.
6.05. RESTRICTIONS ON TRANSFER. The face or reverse side of each
Certificate shall bear a conspicuous notation of any restriction imposed by the
Corporation upon the transfer of such shares represented by a Certificate.
6.06 LOST, DESTROYED OR STOLEN CERTIFICATES. Where the owner claims
that his or her Certificate has been lost, destroyed or wrongfully taken, no
Certificate shall be issued in place thereof unless the owner:
A. Files with the Corporation an affidavit stating that such
Certificate was lost, destroyed or stolen 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.
6.07 CONSIDERATION FOR SHARES. The shares of the Corporation may be
issued for such consideration as shall be fixed from time to time by the Board
of Directors, provided that any shares having a par value shall not be issued
for a consideration less than the par value thereof. The consideration to be
received for shares may consist 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. When the Corporation receives the consideration for which the Board
of Directors authorized the issuance of shares, the shares
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issued for that consideration are fully paid and nonassessable, except as
provided by Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, or
any successor statute, which may require further assessment for unpaid wages to
employees under certain circumstances. The Corporation may place in escrow
shares issued for a contract for future services or benefits or a promissory
note, 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 are received or the note is paid.
If the services are not performed, the benefits are not received or the note is
not paid, the Corporation may cancel, in whole or in part, the shares escrowed
or restricted and the distributions credited.
6.08 UNCERTIFICATED SHARES. In accordance with Section 180.0626 of the
Wisconsin Business Corporation Law, or any successor statute, the Board of
Directors may issue any shares of any of its classes or series without
Certificates. The authorization does not affect shares already represented by
Certificates unless the Certificates are surrendered to the Corporation. Within
a reasonable time after the issuance or transfer of shares without Certificates,
the Corporation shall send the Shareholder a written statement of the
information required on share certificates by Sections 180.0625 and 180.0627, or
any successor statutes, if applicable, of the Wisconsin Business Corporation
Law, and by the Bylaws. The Corporation shall maintain at its offices or at the
office of its transfer agent, an original or duplicate stock transfer book
containing the names and addresses of all Shareholders and the number of shares
held by each Shareholder. If the shares are uncertificated, the Corporation
shall be entitled to recognize the exclusive right of a person registered on its
books as the owner of shares for all purposes and shall not be bound to
recognize any equitable or other claim to or interest in such shares on the part
of any other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of the State of Wisconsin.
6.09 TRANSFER AGENT AND REGISTRAR. The Corporation may maintain one or
more transfer offices or agencies, each in charge of a transfer agent designated
by the Board of Directors, where the shares of stock of the Corporation shall be
transferable. The Corporation also may maintain one or more registry offices,
each in charge of a registrar designated by the Board of Directors, where such
shares of stock be registered. The same person or entity may be both a transfer
agent and registrar.
6.10 STOCK REGULATIONS. The Board of Directors shall have the power and
authority to make all such further rules and regulations not inconsistent with
the laws of the State of Wisconsin as it may deem expedient concerning the
issue, transfer and registration of certificates representing shares of the
Corporation.
ARTICLE VII.
INDEMNIFICATION AND LIABILITY OF OFFICERS AND DIRECTORS
7.01 INDEMNIFICATION.
A. Any person, or such person's estate or personal representative,
made or threatened with being made a party to any action, suit,
arbitration, or proceeding (civil, criminal, administrative, or
investigative, whether formal or informal), which
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involves foreign, federal, state or local law, by reason of the
fact that such person is or was a Director or Officer of the
Corporation or of any corporation or other enterprise for which he
or she served at the Corporation's request as a director, officer,
partner, trustee, member of any decision-making committee,
employee, or agent, shall be indemnified by the Corporation for
all reasonable expenses incurred in the proceeding to the extent
he or she has been successful on the merits or otherwise.
B. In cases where a person described in Paragraph A of Section
7.01 is not successful on the merits or otherwise, the Corporation
shall indemnify such person against liability and reasonable
expenses incurred by him or her in any such proceeding, unless
liability was incurred because the person breached or failed to
perform a duty he or she owed to the Corporation and the breach or
failure to perform constituted any of the following:
1. A willful failure to deal fairly with the Corporation or its
Shareholders in connection with a matter in which the Director
or Officer had a material conflict of interest;
2. A violation of criminal law, unless the Director or Officer
had reasonable cause to believe his or her conduct was lawful
or no reasonable cause to believe his or her conduct was
unlawful;
3. A transaction from which the Director or Officer derived an
improper personal profit; or
4. Willful misconduct.
C. The determination whether indemnification shall be required
under Paragraph B of Section 7.01 shall be made according to one
of the following methods selected by the Director or Officer:
1. By a majority vote of a quorum of the Board of Directors
consisting of Directors who are not at the time parties to the
same or related proceedings. If a quorum of such disinterested
Directors cannot be obtained, by majority vote of a committee
duly appointed by the Board of Directors and consisting solely
of two or more Directors who are not at the time parties to the
same or related proceedings. Directors who are parties to the
same or related proceedings may participate in the designation
of members of the committee;
2. By independent legal counsel selected by a quorum of the
Board of Directors or its committee in the manner prescribed in
Clause 1 of this Paragraph C or, if unable to obtain such a
quorum or committee, by a majority vote of the Board of
Directors, including Directors who are parties to the same or
related proceedings; or
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3. By the court conducting the proceedings or another court of
competent jurisdiction, either on application by the Director
or Officer for an initial determination or on application for
review of an adverse determination under Clause 1 or 2 of this
Paragraph C.
D. The termination of a proceeding by judgment, order, settlement
or conviction, or upon a plea of no contest or an equivalent plea,
does not, by itself, create a presumption that indemnification of
the Director or Officer is not required.
E. A Director or Officer who seeks indemnification under Section
7.01 shall make a written request to the Corporation.
F. Upon written request by a Director or Officer who is a party to
a proceeding described in Paragraph A of Section 7.01, the
Corporation may pay or reimburse his or her reasonable expenses as
incurred if the Director or Officer provides the Corporation with
all of the following:
1. A written affirmation of his or her good faith belief that
he or she has not breached or failed to perform his or her
duties to the Corporation; and
2. A written undertaking, executed personally or on his or her
behalf, to repay the allowance and reasonable interest thereon,
to the extent that it is ultimately determined under Clause 1
or 2 of Paragraph C of Section 7.01, that indemnification is
not required or to the extent that indemnification is not
ordered by a court under Clause 3 of Paragraph C of Section
7.01. The undertaking under this Clause 2 shall be an unlimited
general obligation of the Director or Officer, may be accepted
without reference to his or her ability to repay the allowance
and may be secured or unsecured.
G. Paragraphs A through F of Section 7.01 shall also apply where a
person or such person's estate or personal representative is made
or threatened with being made a party to any proceeding described
in Paragraph A of this by reason of the fact that such person is
or was an employee of the Corporation, except that in addition to
the categories of conduct set forth in Paragraph B of Section 7.01
in relation to which the Corporation has no duty to indemnify, the
Corporation also shall have no duty to indemnify the employee
against liability and reasonable expenses incurred by him or her
in any such proceeding if liability was incurred because the
person breached or failed to perform a duty he or she owed to the
Corporation and the breach or failure to perform constituted
material negligence or material misconduct in performance of the
employee's duties to the Corporation.
H. Unless a Director or Officer of the Corporation has knowledge
that makes reliance unwarranted, a Director or Officer, in
discharging his or her duties to the Corporation, may rely on
information, opinions, reports or statements, any of
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which may be written or oral, formal or informal, including
financial statements and other financial data, if prepared or
presented by any of the following:
1. An Officer or employee of the Corporation whom the Director
or Officer believes in good faith to be reliable and competent
in the matters presented;
2. Legal counsel, public accountants or other persons as to
matters the Director or Officer believes in good faith are
within the person's professional or expert competence; or
3. In the case of reliance by a Director, a committee of the
Board of Directors of which the Director is not a member if the
Director believes in good faith that the committee merits
confidence.
This Paragraph H does not apply to the liability of a Director for
improper declaration of dividends, distribution of assets,
corporate purchase of its own shares, distribution of assets to
Shareholders during liquidation, corporate loans made to an
Officer or Director under Wisconsin Business Corporation Law
Section 180.0832(1) or the reliance of a Director on financial
information represented as correct by Officers or independent or
certified public accountants under Wisconsin Business Corporation
Law Section 180.0826.
I. In discharging his or her duties to the Corporation and in
determining what he or she believes to be in the best interest of
the Corporation, a Director or Officer may, in addition to
considering the effects of any action on Shareholders, consider
the following:
1. The effects of the action on employees, suppliers and
customers of the Corporation;
2. The effects of the action on communities in which the
Corporation operates; or
3. Any other factor the Director or Officer considers
pertinent.
7.02 LIMITED LIABILITY OF DIRECTORS AND OFFICERS TO THE CORPORATION AND
SHAREHOLDERS.
A. Except as provided in Paragraph B of Section 7.02, a Director
or Officer is not liable to the Corporation, its Shareholders or
any person asserting rights on behalf of the Corporation or
Shareholders, for damages, settlements, fees, fines, penalties or
other monetary liabilities arising from a breach of, or failure to
perform, any duty resulting solely from his or her status as a
Director, unless the person asserting liability proves that the
breach or failure to perform constitutes any of the following:
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1. A willful failure to deal with the Corporation or
Shareholders in connection with a matter in which the Director
or Officer had a material conflict of interest;
2. A violation of criminal law, unless the Director or Officer
had reasonable cause to believe his or her conduct was lawful
or no reasonable cause to believe his or her conduct was
unlawful;
3. A transaction from which the Director or Officer derived an
improper personal profit; or
4. Willful misconduct.
B. Section 7.02 does not apply to the liability of a Director or
Officer for improper declaration of dividends, distribution of
assets, corporate purchase of its own shares, distribution of
assets to Shareholders during liquidation, or for corporate loans
made to an Officer or Director under Wisconsin Business
Corporation Law Section 180.0832(1).
ARTICLE VIII. CORPORATE DIVIDENDS
The Board of Directors may from time to time declare dividends on its
outstanding shares in the manner and upon the terms and conditions provided by
law and its Articles of Incorporation.
ARTICLE IX. CORPORATE SEAL
The Board of Directors may provide a corporate seal which may be circular in
form and may have inscribed thereon the name of the Corporation and the state of
incorporation and the words "Corporate Seal."
ARTICLE X. FISCAL YEAR
The Board of Directors shall set the fiscal year as set forth in Section 0.05.
ARTICLE XI. AMENDMENTS
11.01 BY SHAREHOLDERS. The Bylaws may be altered, amended or repealed
and new bylaws may be adopted by the Shareholders by affirmative vote of not
less than a majority of the shares present or represented at an Annual or
Special Meeting of the Shareholders at which a quorum is in attendance.
11.02 BY DIRECTORS. The Bylaws also may be altered, amended or repealed
and new bylaws may be adopted by the Board of Directors by affirmative vote of a
majority of the number of Directors present at or participating in any meeting
at which a quorum is in attendance; but no bylaw adopted by the Shareholders
shall be amended or repealed by the Board of Directors if such
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bylaw so provides.
11.03 IMPLIED AMENDMENTS. Any action taken or authorized by the
Shareholders or by the Board of Directors, which would be inconsistent with the
Bylaws then in effect but is taken or authorized by affirmative vote of not less
than the number of shares or the number of Directors required to amend the
Bylaws so that the Bylaws would be consistent with such action, shall be given
the same effect as though the Bylaws had been temporarily amended or suspended
so far, but only so far, as is necessary to permit the specific action so taken
or authorized.
CERTIFICATE OF ADOPTION
THE UNDERSIGNED OFFICER OF FIRST MANITOWOC BANCORP, INC. HEREBY
CERTIFIES:
THE FOREGOING RESTATED AND AMENDED BYLAWS OF FIRST MANITOWOC BANCORP,
INC. WERE DULY ADOPTED AS OF THE 22ND DAY OF FEBRUARY, 2000.
-----------------------------------
By: Thomas J. Bare, President
First Manitowoc Bancorp, Inc.
RESOLUTION
RESOLVED, that the Restated Bylaws of this Corporation in the form
presented to this meeting relating to procedural matters with respect to the
business and affairs of First Manitowoc Bancorp, Inc., shall be, and they hereby
are, adopted.
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