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EXHIBIT 3.2
UNIVERSAL FOODS CORPORATION
AMENDED AND RESTATED BY-LAWS
1. OFFICES
1.1 Business Offices. The principal office of the corporation in the
State of Wisconsin shall be located in the City of Milwaukee, County of
Milwaukee. The corporation may have such other 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.
1.2 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 with 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.
2. SHAREHOLDERS
2.1 Annual Meeting. The date of the annual meeting of shareholders
shall be set by the Board of Directors each year for the third Thursday after
the first Friday of January, or on such other day as may be designated by the
Board of Directors, upon the recommendation of the Nominating Committee, for the
purpose of electing directors and transacting such other business as may come
before the meeting; provided, however, that any such other date shall be not
later than March 1. In fixing a meeting date for any annual meeting of
shareholders, the Board of Directors may consider such factors as it deems
relevant within the good faith exercise of its business judgment.
2.2 Purposes of Annual Meeting. At an annual meeting of shareholders
(an "Annual Meeting"), only business properly brought before the meeting as
provided in this Section may be transacted. To be properly brought before an
Annual Meeting, business must be (i) brought before the meeting by or at the
direction of the Board of Directors, or (ii) otherwise properly brought before
the meeting by a shareholder of record where the shareholder has complied with
the requirements of this Section. To bring business before an Annual Meeting, a
shareholder must have given written notice thereof, either by personal delivery
or by United States certified mail, postage prepaid, to the Secretary of the
corporation, that is received by the Secretary not less than fifty (50) days in
advance of the third Thursday after the first Friday in the month of January
next following the last Annual Meeting held; provided, that if the Annual
Meeting of shareholders is held earlier than the third Thursday after the first
Friday in the month of January, such notice must be given on or before the later
of (x) the date fifty (50) days prior to the earlier date of the Annual Meeting
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and (y) the date ten (10) business days after the first public disclosure, which
may include any public filing with the Securities and Exchange Commission or a
press release to Dow Jones & Company or any similar service, of the earlier date
of the Annual Meeting. Any such notice shall set forth the following as to each
matter the shareholder proposes to bring before the Annual Meeting: (A) a brief
description of the business desired to be brought before the meeting and the
reasons for conducting such business at the meeting and, if such business
includes a proposal to amend the Amended and Restated Articles of Incorporation
or By-laws of the corporation, the language of the proposed amendment; (B) the
name and address, as they appear on the corporation's books, of the shareholder
proposing such business and the beneficial owner or owners, if any, on whose
behalf the business is proposed; (C) the class and number of shares of the
corporation which are beneficially owned by such shareholder and beneficial
owner or owners; (D) a representation that the shareholder is a holder of record
of stock of the corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to propose such business; and (E)
any material interest of the shareholder and beneficial owner or owners in such
business and such persons' reasons for conducting such business at the meeting.
If the chairman of the shareholders meeting shall determine that business was
not properly brought before the meeting and in accordance with the provisions of
the By-laws, he or she shall so declare to the meeting and any such business not
properly brought before the meeting shall not be transacted. Notwithstanding the
foregoing provisions of this Section, a shareholder shall also comply with all
applicable requirements of the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder with respect to the matters set forth in
this Section.
2.3 Special Meetings.
(a) A special meeting of the shareholders of the corporation (a
"Special Meeting") may be called only by (i) the Chairman of the Board, (ii) the
Chief Executive Officer, or (iii) the Board of Directors, and shall be called by
the Chairman of the Board or the Chief Executive Officer upon the written
demand, in accordance with this Section 2.3, 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. Only such business shall be
conducted at a Special Meeting as shall have been described in the notice of
meeting sent to shareholders pursuant to Section 2.5 of these By-laws.
(b) To enable the corporation to 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 (10) 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
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Meeting shall, by written notice to the Secretary of the corporation, request
the Board of Directors to fix a Demand Record Date. The Board of Directors shall
promptly, but in all events within ten (10) 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 (10) days after the date on which such request is received by the Secretary,
the Demand Record Date shall be the tenth (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 Sections 2.2 and 3.9 of these By-laws.
(c) 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 ten percent (10%) of all
the votes entitled to be cast on each 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 2.3), 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), shall set forth the
name and address, as they appear in the corporation's books, of each shareholder
signing such demand and the class or series 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
(70) 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 2.3, the Secretary receives a written agreement
signed by each Soliciting Shareholder (as defined herein), 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 director at such
meeting is elected, then the Soliciting Shareholders shall not be
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required to pay such costs. For purposes of this paragraph (d) the following
terms shall have the meanings set forth below:
(i) "Affiliate" shall have the meaning assigned
to such term in Rule 12b-2 promulgated under
the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
(ii) "Participant" shall have the meaning
assigned to such term in Rule 14a-11
promulgated under 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.
(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 2.3 is ten (10) 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 2.3 is more than ten (10),
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 2.3, had engaged or intended
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 of the corporation then in
office determine,
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reasonably and in good faith, that
such Affiliate should be required to
sign the written notice described in
paragraph (c) of this Section 2.3
and/or the written agreement
described in this paragraph (d) in
order to prevent the purposes of
this Section 2.3 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 Chairman of the Board, the Chief Executive Officer or the Board of Directors
shall have called such meeting. In the case of any Special Meeting called by the
Chairman of the Board or the Chief Executive Officer 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 (70)
days after the Meeting Record Date (as defined in Section 2.6); 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 (10) 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 ten percent (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 2:00 P.M. local time on the one hundredth (100th) day
after the Delivery Date, or if such one hundredth (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 Chairman of the Board, the Chief Executive
Officer or the Board of Directors may consider such factors as he or it deems
relevant within the good faith exercise of his or its 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 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 (5)
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 ten percent (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 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 (5) Business Day period, or to take any other action
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(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.
2.4 Place of Meeting. The Board of Directors, the Chairman of the
Board or the Chief Executive Officer may designate any place, either within or
without the State of Wisconsin, as the place of meeting for the Annual Meeting,
any Special Meeting or any postponement thereof. If the Board of Directors, the
Chairman of the Board or the Chief Executive Officer shall fail or neglect to
make such designation, the Secretary shall designate the place of such meeting.
If no designation is made, the place of meeting shall be the registered office
of the corporation in the State of Wisconsin. Any adjourned meeting may be
reconvened at any place designated by vote of the Board of Directors or by the
Chairman of the Board or the Chief Executive Officer.
2.5 Notice of Meeting. The corporation shall send written or printed
notice stating the place, day and hour of any Annual Meeting or Special Meeting
not less than ten (10) days nor more than sixty (60) days before the date of
such meeting either personally or by mail to each shareholder of record entitled
to vote at such meeting and to other shareholders as may be required by law or
by the Amended and Restated Articles of Incorporation. In the event of any
Demand Special Meeting, such notice of meeting shall be sent not more than
thirty (30) days after the Delivery Date. If mailed, such notice of meeting
shall be addressed to the shareholder at the shareholder's address as it appears
on the corporation's record of shareholders. Unless otherwise required by law or
the Amended and Restated Articles of Incorporation, 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 2.3 of these By-laws and (ii) shall contain all of the information
required in the notice received by the corporation in accordance with Section
2.3(b) of these By-laws. A shareholder's attendance at a meeting, in person or
by proxy, waives objection to the 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.
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2.6 Fixing of Certain Record Dates.
(a) The Board of Directors may fix a future date not less than
ten (10) days and not more than sixty (60) days prior to the date of any Annual
Meeting or Special Meeting as the record date for the determination of
shareholders entitled to notice of, or to vote at, such meeting (the "Meeting
Record Date"). In the case of any Demand Special Meeting, (i) the Meeting Record
Date shall be not later than the thirtieth (30th) day after the Delivery Date
and (ii) if the Board of Directors fails to fix the Meeting Record Date within
thirty (30) days after the Delivery Date, then the close of business on such
thirtieth (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 may be otherwise provided by law, a
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders 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 postponed or adjourned to a date more than one hundred twenty (120) days
after the date fixed for the original meeting.
(b) The Board of Directors may fix a future date as the record
date for the determination of shareholders entitled to receive payment of any
share dividend or distribution. If no record date is so fixed by the Board of
Directors, 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 authorized the distribution or share dividend,
as the case may be.
2.7 Voting Lists. After a record date for a Special Meeting or Annual
Meeting 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. 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.
2.8 Quorum; Votes. Shares entitled to vote as a separate voting group
may take action on a matter at a meeting only if a quorum of those shares exists
with respect to that matter. If the corporation has only one class of stock
outstanding, such class shall constitute a separate voting group for purposes of
this Section 2.8. Except as otherwise provided in the
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Amended and Restated Articles of Incorporation 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 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 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 Amended and Restated Articles of
Incorporation or the Wisconsin Business Corporation Law requires a greater
number of affirmative votes. Unless otherwise provided in the Amended and
Restated Articles of Incorporation, each director shall be elected by a
plurality of the votes cast by the shares entitled to vote in the election of
directors at a meeting at which a quorum is present.
2.9 Proxies. At all meetings of shareholders, a shareholder entitled to
vote may vote his or her shares 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. 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.
2.10 Voting of Shares. Each outstanding share, regardless of class,
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 class or classes are enlarged, limited, or denied by the Amended and
Restated Articles of Incorporation of the corporation or by the Wisconsin
Business Corporation Law.
2.11 Subsidiary Shares. 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 meeting, but shares held in a fiduciary capacity
may be voted.
2.12 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 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:
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(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 shareholders 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.
2.13 Conduct of Meeting. The Chairman of the Board, and in his or her
absence, any officer or director designated by the Chairman of the Board, and in
his or her absence, the Chief Executive Officer, and in his or her absence, the
President, and in his or her absence, a Vice President in the order provided
under Section 4.7 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 the Meeting, and the Secretary of the
corporation shall act as secretary of any meeting of the shareholders, but in
the absence of the Secretary, the Chairman of the Meeting may appoint any other
person to act as secretary of the meeting.
2.14 Postponement; Adjournment.
(a) Any Annual Meeting or any Special Meeting called by the
Chairman of the Board, the Chief Executive Officer (other than a Demand Special
Meeting) or the Board of Directors may be postponed at any time or from time to
time after written notice of the meeting
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has been delivered to shareholders as follows: (i) in the case of the Annual
Meeting or a Special Meeting called by the Board of Directors, by action of the
Board of Directors or a duly authorized committee thereof and (ii) in the case
of a Special Meeting called by the Chairman of the Board or the Chief Executive
Officer, at the request of the person calling the meeting and with the consent
of the Board of Directors or a duly authorized committee thereof. Any such
postponement or postponements shall be disclosed in any public filing with the
Securities and Exchange Commission or by means of a press release to Dow Jones &
Company or any similar service promptly following such postponement, and
promptly thereafter written notice of such postponement stating the place, day
and hour to which the meeting was postponed shall be delivered to each
shareholder of record entitled to vote at such meeting.
(b) A meeting of shareholders may be adjourned to a different
date, time or place from time to time, whether or not there is a quorum, (i) at
any time, upon a resolution of shareholders if the number of votes cast in favor
of such resolution exceed the number of votes cast against such resolution, or
(ii) by order of the chairman of the meeting, but only where such order is
delivered before any business is transacted at such meeting and such adjournment
is for a period of thirty (30) days or less. 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 originally noticed. Any such
adjournment or adjournments pursuant to clause (i), if the new date, time and
place of the meeting are not announced at the meeting prior to adjournment or if
a new record date is or must be fixed for the meeting, or pursuant to clause
(ii) shall be disclosed in any public filing with the Securities and Exchange
Commission or by means of a press release to Dow Jones & Company or any similar
service promptly following such adjournment, and promptly thereafter written
notice of such adjournment stating the date, time and place to which the meeting
was adjourned shall be delivered to each shareholder of record entitled to vote
at such meeting, except that (except as may be otherwise required by law) no
such disclosure in filings, press releases or notices to shareholders shall be
required if an adjournment is for a period of forty-eight (48) hours or less.
3. BOARD OF DIRECTORS
3.1 General Powers. All corporate powers of the corporation shall be
exercised by or under the authority of, and the business and affairs of the
corporation managed under the direction of, its Board of Directors.
3.2 Number, Tenure and Qualifications.
(a) The number of directors of the corporation shall be eleven
(11). No more than two (2) officers or employees of the corporation or any of
its subsidiaries shall simultaneously serve as directors of the corporation. The
directors shall be divided into three (3) classes with the first class to
consist of three (3) directors and the second and third classes
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to consist of four (4) directors each. The term of office of those of the first
class shall expire at the Annual Meeting to be held in January, 1984, and of the
second class one year thereafter and of the third class, two years thereafter,
and in all cases, until their respective successors shall have been elected and
qualified. At the Annual Meetings following the initial election of directors by
classes, the successors to the class of directors whose term expires in that
year shall be elected for a term of three (3) years to succeed those whose terms
expire, so that the term of office of one class of directors shall expire in
each year, but, subject to the provisions of the By-laws of the corporation,
each director shall hold office for the term for which he or she is elected and
until his or her successor is elected and, if necessary, qualified or until
there is a decrease in the number of directors that takes effect upon or after
the expiration of the term for which he or she is elected.
(b) Directors need not be residents of the State of Wisconsin or
shareholders of the corporation. A director having attained age seventy (70)
shall automatically cease to be a director of the corporation effective as of
the Annual Meeting immediately following such director's seventieth (70th)
birthday. All directors who are also officers of the corporation shall
automatically cease to be directors of the corporation, effective as of his or
her date of termination of employment from the corporation, with the exception
of any corporate officer holding, or who has held the position of Chief
Executive Officer.
(c) A Chairman of the Board shall be elected by the Board of
Directors from among its members to preside at all meetings of the shareholders
and the Board of Directors. The Director, who need not be an employee of the
corporation, elected Chairman of the Board shall serve in such position for the
term of office as elected by the shareholders or the Board of Directors and
until his or her successor shall have been duly elected or until his or her
death or until resignation or removal in the manner hereinafter provided. The
Chairman of the Board, if an employee of the corporation, may be elected Chief
Executive Officer of the corporation by the Board of Directors. The Chairman of
the Board shall perform all duties incident to the office and such other duties
as may be prescribed by the Board of Directors from time to time.
(d) All directors of the corporation, who are not simultaneously
employed as officers by the corporation, shall be properly compensated and
reimbursed for their services as a director on the basis of an annual retainer,
meeting attendance fees and reasonable expenses incurred as a director as
established and approved annually by the Board of Directors upon the
recommendation of the Nominating Committee. Any employee of the corporation, who
is elected a director of the corporation, shall not receive any compensation,
expense reimbursement or participation in director benefit programs for his or
her services as a director of the corporation. A Chief Executive Officer, who
retires from the corporation prior to attaining age seventy (70) while serving
as a director, immediately becomes eligible
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for compensation, expense reimbursement and director benefit program
participation as a non employee director effective as of the individual's
retirement date from the corporation.
3.3 Regular Meetings. A regular meeting of the Board of Directors shall
be held without other notice than this By-law immediately after, and at the same
place as, the Annual Meeting of shareholders, and each adjourned session
thereof. The Board of Directors may, by resolution, provide the time and place,
either within or without the State of Wisconsin, for the holding of additional
regular meetings without other notice than such resolution.
3.4 Special Meetings. Special meetings of the Board of Directors may be
called by or at the request of the Chairman of the Board, Chief Executive
Officer or a majority of the number of directors fixed by Section 3.2. The
person or persons authorized to call special meetings of the Board of Directors
may fix any place, either within or without the State of Wisconsin, as the place
for holding any special meeting of the Board of Directors called by them.
3.5 Notice of Meetings. Except as otherwise provided in the Amended and
Restated Articles of Incorporation or the Wisconsin Business Corporation Law,
notice of the date, time and place of any special meeting of the Board of
Directors and of any special meeting of a committee of the Board of Directors
shall be given orally or in writing to each director or committee member at
least forty-eight (48) hours prior to the meeting, except that notice by mail
shall be given at least seventy-two (72) hours prior to the meeting. The notice
need not describe the purpose of the meeting.
3.6 Quorum; Votes. One-third (1/3) of the number of directors fixed by
Section 3.2 shall constitute a quorum for the transaction of business at any
meeting of the Board of Directors, but though less than such quorum is present
at a meeting, a majority of the directors present may adjourn the meeting from
time to time without further notice. If a quorum is present when a vote is
taken, the affirmative vote of a majority of directors present shall be the act
of the Board of Directors, unless the act of a greater number is required by
law, by the Amended and Restated Articles of Incorporation or by these By-laws.
3.7 Removal and Resignation. A director may be removed from office by
the affirmative vote of the holders of two-thirds (2/3) of the outstanding
shares entitled to vote taken at a meeting called for that purpose. A director
may resign at any time by delivering his or her written resignation to the
Secretary of the corporation or to the Chairman of the Board. A resignation is
effective when the notice is received unless the notice specifies a later
effective date.
3.8 Vacancies. Any vacancy occurring in the Board of Directors,
including a vacancy created by an increase in the number of directors, may be
filled by any of the following: (i) the shareholders, (ii) the Board of
Directors or (iii) if the directors remaining in
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office constitute fewer than a quorum of the Board of Directors, the directors,
by the affirmative vote of a majority of all directors remaining in office;
provided, however, that if the vacant office was held by a director elected by a
voting group of shareholders, only the holders of shares of that voting group
may vote to fill the vacancy if it is filled by the shareholders, and only the
remaining directors elected by that voting group may vote to fill the vacancy if
it is filled by the directors. The Directors so elected shall hold office until
the next succeeding election of the class for which such director shall have
been elected.
3.9 Nominations. Nominations for the election of directors may be made
only by the Board of Directors, by the Nominating Committee of the Board of
Directors (or, if none, any other committee serving a similar function) or by
any shareholder entitled to vote generally in elections of directors where the
shareholder complies with the requirements of this Section. Any shareholder of
record entitled to vote generally in elections of directors may nominate one or
more persons for election as directors at a meeting of shareholders only if
written notice of such shareholder's intent to make such nomination or
nominations has been given to the Secretary of the corporation and is received
by the Secretary (i) with respect to an election to be held at an Annual
Meeting, not more than ninety (90) days nor less than fifty (50) days in advance
of the third Thursday after the first Friday of the month of January next
following the last Annual Meeting held; provided, that if the Annual Meeting is
held earlier than the third Thursday after the first Friday of the month of
January, such notice must be given on or before the later of (x) the date fifty
(50) days prior to the earlier date of the Annual Meeting and (y) the date ten
(10) business days after the first public disclosure, which may include any
public filing with the Securities and Exchange Commission or a press release to
Dow Jones & Company or any similar service, of the earlier date of the Annual
Meeting, and (ii) with respect to an election to be held at a Special Meeting as
to which notice of such meeting states that it is to be held for the election of
directors, not earlier than ninety (90) days prior to such Special Meeting and
not later than the close of business on the later of (x) the tenth (10th)
business day following the date on which notice of such meeting is first given
to shareholders and (y) the fiftieth (50th) day prior to such Special Meeting.
Each such notice of a shareholder's intent to nominate a director or directors
at an Annual Meeting or Special Meeting shall set forth the following: (A) the
name and address, as they appear on the corporation's books, of the shareholder
who intends to make the nomination and of the beneficial owner or owners, if
any, on whose behalf the nomination is to be made and the name and residence
address of the person or persons to be nominated; (B) the class and number of
shares of the corporation which are beneficially owned by the shareholder and
beneficial owner or owners; (C) a representation that the shareholder is a
holder of record of stock of the corporation entitled to vote at such meeting
and intends to appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice; (D) a description of all arrangements
or understandings between the shareholder and/or beneficial owner or owners and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
shareholders; (E) such other information regarding each nominee proposed by such
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shareholder as would be required to be disclosed in solicitations of proxies for
election of directors, or would be otherwise required, 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 of the corporation if so elected. No person
shall be eligible to serve as a director of the corporation unless nominated in
accordance with the procedures set forth in this By-law. If the chairman of the
shareholders meeting shall determine that a nomination was not made in
accordance with the procedures prescribed by the By-laws, he or she shall so
declare to the meeting and the defective nomination shall be disregarded.
Notwithstanding the foregoing provisions of this Section 3.9, a shareholder
shall also comply with all applicable requirements of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder with respect
to the matters set forth in this Section.
3.10 Compensation. The Board of Directors, irrespective of any personal
interest of any of its members, upon the recommendation of the Nominating
Committee, may establish compensation of all directors for services to the
corporation as directors, or may delegate such authority to an appropriate
committee.
3.11 Presumption of Assent. A director of the corporation who is
present and is announced as present at 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 assents to the action taken, unless any of the
following occurs: (i) the director objects at the beginning of the meeting or
promptly upon his or her arrival to the holding of the meeting or transacting
business at the meeting; (ii) the director's dissent or abstention from the
action taken is entered in the minutes of the meeting; (iii) the director
delivers written notice of his or her dissent or abstention to the presiding
officer of the meeting before its adjournment or to the corporation immediately
after adjournment of the meeting; or (iv) the director dissents or abstains from
action taken, minutes of the meeting are prepared that fail to show the
director's dissent or abstention from the action taken and the director delivers
to the corporation a written notice of that failure that complies with Section
180.0141 of the Wisconsin Business Corporation Law promptly after receiving the
minutes. Such right to dissent or abstain shall not apply to a director who
voted in favor of such action.
3.12 Committees of the Board of Directors.
(a) Subject to the provisions of the Wisconsin Business
Corporation Law, there shall be those committees of the Board of Directors set
forth in Sections 3.13-3.18 of these By-laws, and the Board of Directors may
from time to time establish other committees including standing or special
committees, which shall have such duties and powers as are authorized by these
By-laws or by the Board of Directors; provided, however, that no
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committee shall do any of the following: (i) authorize distributions; (ii)
approve or propose to shareholders action that the Wisconsin Business
Corporation Law requires be approved by shareholders; (iii) fill vacancies on
the Board of Directors or, unless the Board of Directors provides by resolution
that any vacancies on a committee shall be filled by the affirmative vote of a
majority of the remaining committee members, on any of its committees; (iv)
amend the corporation's Amended and Restated Articles of Incorporation; (v)
adopt, amend or repeal the corporation's By-laws; (vi) approve a plan of merger
not requiring shareholder approval; (vii) authorize or approve reacquisition of
shares, except according to a formula or method prescribed by the Board of
Directors; and (viii) 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 the Chief Executive Officer of the
corporation to do so within limits prescribed by the Board of Directors. In
addition to the powers expressly enumerated in these By-laws, the Board of
Directors may, by resolution, at any time desirable, adopt new powers and
authority of any committee.
(b) Committee members and the chairman of each committee,
including any alternates, shall be appointed by the Board of Directors as
provided in the Wisconsin Business Corporation Law. The Chief Executive Officer
of the corporation shall make recommendations to the Board of Directors for its
action concerning members to be appointed to the several committees of the Board
of Directors. Any member of any committee may be removed at any time with or
without cause by the Board of Directors. Vacancies which occur in any committee
may be filled by a resolution of the Board of Directors. If any vacancy shall
occur in any committee by reason of death, resignation, disqualification,
removal or otherwise, the remaining members of such committee, so long as the
committee has at least two (2) members and a quorum is present, may continue to
act until such vacancy is filled. The Board of Directors may, by resolution, at
any time deemed desirable, discontinue any standing or special committee,
subject to the requirements of the By-laws of the corporation. Members of
standing committees, and their chairmen, shall be appointed yearly at the
organizational meeting of the Board of Directors which is held immediately
following the Annual Meeting of shareholders. Members of committees may receive
such compensation for their services as the Board of Directors, upon the
recommendation of the Nominating Committee, may determine.
3.13 Executive Committee. There shall be an Executive Committee of the
Board of Directors. The Executive Committee shall consist of the Chief Executive
Officer of the corporation and not less than three (3) other directors. Subject
to the Wisconsin Business Corporation Law and Section 3.12 of these By-laws, the
Executive Committee shall have all of the powers of the Board of Directors in
the management and conduct of the business and affairs of the corporation in the
intervals between meetings of the Board of Directors, and shall report its
actions to the Board of Directors at its regular meetings.
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3.14 Audit Committee. There shall be an Audit Committee of the Board of
Directors. The Committee shall have the following membership and powers:
(a) The Committee shall have at least three (3) members. All
members of the Committee shall be non employee directors.
(b) The Committee shall recommend to the Board of Directors for
its action the appointment or discharge of the corporation's independent
auditors, based upon the Committee's evaluation of the quality of their audit
work and the appropriateness of the fees charged both for audit and non-audit
services.
(c) The Committee shall review and approve the fees of the
corporation's independent auditors and the scope and plan of the audit and shall
meet with the independent auditors at appropriate times to review, among other
things, the results of the audit, any certification, report or opinion which the
auditors propose to render in connection with the corporation's financial
statements, and the corporation's internal control structure.
(d) The Committee shall review the adequacy and appropriateness of
internal controls governing performance of the corporation's activities, as well
as recommendations for improvements in such internal controls, including: (a)
the corporation's Code of Conduct and other policies, and procedures to monitor
compliance therewith; (b) management's assessment of internal controls; and (c)
the internal audit function.
(e) The Committee shall review with the independent auditors the
adequacy of the financial reporting process, including the selection of
accounting policies.
(f) The Committee shall have such other duties as may be lawfully
delegated to it from time to time by the Board of Directors.
(g) Notwithstanding the foregoing, the composition of the Audit
Committee, the qualification of its members, and its functions and
responsibilities, shall at all times comply with the listing requirements of the
New York Stock Exchange or other exchange on which the corporation's stock is
listed as such listing requirements may be amended from time to time.
3.15 Compensation and Development Committee. There shall be a
Compensation and Development Committee of the Board of Directors. The Committee
shall have the following membership and powers:
(a) The Committee shall be composed of at least three (3) members.
Each member of the Committee shall be both a "nonemployee director" (within the
meaning of
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Rule 16b-3 of the Securities and Exchange Act) and an "outside director" (within
the meaning of Section 162(m)(4)(C) of the Internal Revenue Code).
(b) The Committee shall review and approve all compensation plans
and programs (philosophy and guidelines) for the senior management of the
corporation including salary structure, base salary, short and long-term
incentive compensation plans, including stock options and nonqualified benefit
plans and programs, including fringe benefit plans and programs.
(c) The Committee shall prepare such reports as are required to be
included in the corporation's proxy statement.
(d) The Committee shall review and approve annual changes in the
compensation of each officer appointed by the Board of Directors including base
salary and short- and long-term incentive awards.
(e) The Committee shall review and approve all awards under the
corporation's Stock Option Plans.
(f) The Committee shall consider and make recommendations to the
Board of Directors regarding the selection and retention of all elected officers
of the corporation (as defined in Section 4.1) and shall annually recommend to
the Board of Directors the appointment of such officers of the corporation at
the time of the Annual Meeting of shareholders.
(g) The Committee shall approve all executive employment
contracts.
(h) The Committee shall oversee the selection of outside
consultants to review the compensation programs of the corporation and shall
meet with such consultants with or without management as appropriate.
(i) The Committee shall annually review the performance of the
Chief Executive Officer.
(j) The Committee shall annually review and approve the Chief
Executive Officer's management development and succession plans for the
corporation.
(k) The Committee shall have such other duties as may be lawfully
delegated to it from time to time by the Board of Directors.
3.16 Finance Committee. There shall be a Finance Committee of the Board
of Directors. The Committee shall have the following membership and powers:
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(a) The Committee shall have at least three (3) members. At least
fifty percent (50%) of the members of the Committee shall be non employee
directors.
(b) The Committee shall review and approve the corporation's
annual capital budget, long-term financing plans, existing credit facilities,
investments and commercial and investment banking relationships.
(c) The Committee shall review and approve the corporation's
existing insurance coverages, foreign currency management and Stock Repurchase
Program.
(d) The Committee shall review and approve the financial
management and administrative operation of the corporation's qualified and
non qualified employee benefit plans.
(e) The Committee shall have such other duties as lawfully may be
delegated to it from time to time by the Board of Directors.
3.17 Nominating Committee. There shall be a Nominating Committee of the
Board of Directors. The Committee shall have the following membership and
powers:
(a) The Committee shall have at least three (3) members. All
members of the Committee shall be non employee directors.
(b) The Committee shall review candidates to serve as director and
shall recommend candidates to the Board of Directors for nomination to stand for
election at each Annual Meeting of shareholders or other meetings where
directors are to be elected and shall recommend persons to serve as proxies to
vote proxies solicited by the Board of Directors in connection with such
meetings.
(c) The Committee shall cause the names of all director candidates
that are approved by the Board of Directors to be listed in the corporation's
proxy materials and shall support the election of all candidates so nominated by
the Board of Directors to the extent permitted by law.
(d) The Committee shall review and make recommendations to the
Board of Directors concerning the composition and size of the Board of Directors
and potential candidates to serve in the future on the Board of Directors.
(e) The Committee shall review candidates for election as
directors submitted by shareholders for compliance with these By-laws.
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(f) The Committee shall review and recommend to the Board of
Directors the overall compensation programs for directors, including annual
retainer, meeting fees, deferred compensation, stock or option plans or other
incentive plans, and retirement plans.
(g) The Committee shall recommend to the Board of Directors the
date, time and place of the Annual Meeting of the shareholders.
(h) The Committee shall have such other duties as lawfully may be
delegated to it from time to time by the Board of Directors.
3.18 Scientific Advisory Committee. There shall be a Scientific
Advisory Committee of the Board of Directors. The Committee shall have the
following membership and powers:
(a) The Committee shall have at least three (3) members. At least
fifty percent (50%) of the members of the Committee shall be non employee
directors.
(b) The Committee shall review and evaluate the research and
development programs of the corporation with respect to quality and scope.
(c) The Committee shall advise the Board of Directors on
maintaining product leadership through technological innovation.
(d) The Committee shall review and make recommendations to the
Board of Directors regarding the technological aspects of the corporation's
business, including new business opportunities.
(e) The Committee shall report to the Board of Directors on new
technological and regulatory trends that will have a significant impact on the
business of the corporation.
(f) The Committee shall have such other duties as lawfully may be
delegated to it from time to time by the Board of Directors.
3.19 Meetings of Committees. Each committee of the Board of Directors
shall fix its own rules of procedure which shall include and be consistent with
the provisions of the Wisconsin Business Corporation Law, these By-laws and any
resolutions of the Board of Directors governing such committee, and shall make
such reports to the Board of Directors of its activities as the Board of
Directors may request. Each committee shall meet as provided by such rules and
shall also meet at the call of its chairman or any two (2) members of such
committee. Unless otherwise provided by such rules, the provisions of these
By-laws under Section 3. entitled "Board of Directors" relating to the place of
holding meetings and
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the notice required for meetings of the Board of Directors shall govern the
place of meetings and notice of meetings for committees of the Board of
Directors. A majority of the members of each committee shall constitute a quorum
thereof, except that when a committee consists of two (2) members, then the two
(2) members shall constitute a quorum. In the absence of a quorum, a majority of
the members present at the time and place of any meeting may adjourn the meeting
from time to time until a quorum shall be present and the meeting may be held as
adjourned without further notice or waiver. Except in cases where it is
otherwise provided by the rules of such committee, the vote of a majority of the
members present at a duly constituted meeting at which a quorum is present shall
be sufficient to pass any measure by the committee.
3.20 Informal Action Without Meeting. Any action required or permitted
by the Amended and Restated Articles of Incorporation or By-laws or any
provision of law to be taken by the Board of Directors or a committee at a
meeting may be taken without a meeting if the action is taken by all members of
the Board of Directors 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. Such action shall be effective
when the last director or committee member signs the consent, unless the consent
specifies a different effective date.
3.21 Telephonic Meetings. Notwithstanding any place set forth in the
notice of the meeting or these By-laws, members of the Board of Directors may
participate in regular or special meetings of the Board of Directors and all
Committees of the Board of Directors by or through the use of any means of
communication by which either: (a) all directors participating may
simultaneously hear each other, such as by conference telephone, or (b) all
communication during the meeting is immediately transmitted to each
participating director, and each participating director is able to immediately
send messages to all other participating directors; provided, however, that the
Chairman of the Board or the chairman of the respective Committee of the Board
of Directors or other person or persons calling a meeting may determine that the
directors cannot participate by such means, in which case the notice of the
meeting, or other notice to directors given prior to the meeting, shall state
that each director's physical presence shall be required. If a meeting is
conducted through the use of such means, then at the commencement of such
meeting all participating directors shall be informed that a meeting is taking
place at which official business may be transacted. A director participating in
a meeting by such means shall be deemed present in person at such meeting. The
identity of each director participating in such a meeting must be verified in
such manner as the chairman of the meeting deems reasonable under the
circumstances before a vote may be taken.
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4. OFFICERS
4.1 Number.
(a) The principal executive officers of the corporation shall be a
Chairman, a Chief Executive Officer, a President, one or more Vice Presidents,
one or more of whom may be designated Executive Vice President, one or more of
whom may be designated Senior Vice President, and one or more of whom may be
designated Vice President and Group Executive, a Secretary, a Treasurer, a
Controller, a Chief Financial Officer and divisional presidents, each of whom
shall be appointed by the Board of Directors (the officers thus appointed by the
Board of Directors are sometimes referred to herein as the "elected"officers).
All other officers, other designated divisional or staff officers, and all
assistant officers (including one or more Assistant Secretaries and/or Assistant
Treasurers) shall be appointed by the Board of Directors or the Chief Executive
Officer. Such officers, agents and employees appointed by the Chief Executive
Officer shall hold office at the discretion of the Chief Executive Officer. Any
two or more offices may be held by the same person.
(b) The duties of the elected officers shall be those enumerated
herein and any further duties designated by the Board of Directors. The duties
herein specified for particular officers may be transferred to and vested in
such other officers as the Board of Directors shall appoint from time to time
and for such periods or without limitation as to time as the Board of Directors
shall order.
(c) The duties and powers of all officers appointed by the Chief
Executive Officer shall be those specifically prescribed for the position(s) by
the Chief Executive Officer at the time of appointment.
4.2 Appointment and Term of Office.
(a) The elected officers of the corporation shall be appointed
annually by the Board of Directors at the first meeting of the Board of
Directors held after each Annual Meeting of the shareholders. If the appointment
of officers shall not be held at such meeting, such appointment shall be held as
soon thereafter as convenient. Each such officer shall hold office until his or
her successor shall have been duly appointed or until his or her death or until
he or she shall resign or shall have been removed in the manner hereinafter
provided.
(b) A vacancy in any office appointed by the Board of Directors,
because of death, resignation, removal, disqualification or otherwise may be
filled by the Board of Directors for the unexpired portion of the term.
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4.3 Removal. The Board of Directors may remove any officer or agent at
any time, with or without cause and notwithstanding the contract rights, if any,
of the officer or agent removed. Appointment shall not of itself create contract
rights.
4.4 Resignation. An officer may resign at any time by delivering
written notice to the Secretary of the corporation. The resignation is effective
when the notice is delivered, unless the notice specifies a later effective date
and the corporation accepts the later effective date.
4.5 The Chief Executive Officer. The Chief Executive Officer, subject
to the control of the Board of Directors, shall supervise and control all of the
business and affairs of the corporation. He or she shall, in the absence of the
Chairman of the Board, preside at all meetings of the shareholders and
directors. He or she shall have authority, subject to such rules as may be
prescribed by the Board of Directors, to appoint and remove certain officers and
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. He or she shall have authority to sign, execute and acknowledge, on behalf
of the corporation, all deeds, mortgages, bonds, contracts, leases, reports and
all other documents or instruments necessary or proper to be executed in the
course of the corporation's regular business, or which shall be authorized by
the Board of Directors; and except as otherwise provided by law or the Board of
Directors, he or she may authorize any other officer or agent of the corporation
to sign, execute and acknowledge such documents or instruments in his or her
place and stead. In general, he or she shall perform all duties incident to the
office of Chief Executive Officer and such other duties as may be prescribed by
the Board of Directors from time to time.
4.6 The President. The President shall be the chief operating officer
of the corporation. In the absence of the Chief Executive Officer or in the
event of his or her death, inability or refusal to act, or in the event for any
reason it shall be impracticable for the Chief Executive Officer to act
personally, the President shall perform the duties of the Chief Executive
Officer and when so acting shall have all the powers of and be subject to all
the restrictions upon the Chief Executive Officer. The President shall have the
authority to sign all stock certificates, contracts, and other instruments of
the corporation necessary or proper to be executed in the course of the
corporation's regular business, or which shall be authorized by the Board of
Directors, and shall perform all duties as are incident to his or her office or
are properly required of him or her by the Board of Directors, the Chairman of
the Board or the Chief Executive Officer. He or she shall have the authority,
subject to such rules, directions, or orders as may be prescribed by the
Chairman of the Board, the Board of Directors or the Chief Executive Officer, to
appoint and terminate the appointment of such agents and employees of the
corporation as he or she shall deem necessary, to prescribe their power, duties
and compensation and to delegate authority to them.
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4.7 Vice Presidents. At the time of appointment, one or more of the
elected Vice Presidents may be designated Executive Vice President and one or
more of them may be designated Senior Vice President. In the absence of the
President or in the event of his or her death, inability or refusal to act, or
in the event for any reason it shall be impracticable for the President to act
personally, the Executive Vice Presidents in the order of their tenure in such
position, or in the absence of any such designation, or in the event of his or
her inability to act, any Senior Vice President in the order of their tenure in
such position, or in the absence of any such designation, or in the event of his
or her inability to act, then the other Vice Presidents in order of their tenure
in such position, shall perform the duties of the President and when so acting
shall have all the powers of and be subject to all the restrictions upon the
President. Any Vice President may sign, with the Secretary or Assistant
Secretary, certificates for shares of the corporation and shall perform such
other duties as from time to time may be assigned to him or her by the Chairman
of the Board, the Chief Executive Officer or the Board of Directors.
4.8 The Secretary. The Secretary shall: (a) keep as permanent records,
the minutes of the shareholders' and of the Board of Directors' meetings,
records of actions taken by the Board of Directors without a meeting, and
records of actions taken by a Committee of the Board of Directors in place of
the Board of Directors and on behalf of the corporation; (b) see that all
notices are duly given in accordance with the provisions of these By-laws or as
required by law; (c) be custodian of the corporate records and of the seal of
the corporation and see that the seal of the corporation is affixed to all
documents the execution of which on behalf of the corporation under its seal is
duly authorized; (d) maintain or cause an authorized agent to maintain a record
of the corporation's shareholders, in a form that permits preparation of a list
of the names and addresses of all shareholders, by class or series of shares and
showing the number and class or series of shares held by each shareholder; and
(e) in general perform all duties incident to the office of Secretary and such
other duties as from time to time may be assigned to him or her by the Chief
Executive Officer or by the Board of Directors.
4.9 The Treasurer. If required by the Board of Directors, the Treasurer
shall give a bond for the faithful discharge of his or her duties in such sum
and with such surety or sureties as the Board of Directors shall determine. He
or she shall: (a) have charge and custody of and be responsible for all funds
and securities of the corporation, receive and give receipts for moneys due and
payable to the corporation from any source whatsoever, and deposit all such
moneys in the name of the corporation in such banks, trust companies or other
depositaries as shall be selected in accordance with the provisions of Section
5. of these By-laws; and (b) in general perform all of the duties incident to
the office of Treasurer and such other duties as from time to time may be
assigned to him or her by the Chief Executive Officer or by the Board of
Directors.
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4.10 The Controller. The Controller shall be the chief accounting
officer of the corporation. He or she shall: (a) maintain appropriate accounting
records for the corporation; (b) cause regular audits of these accounting
records to be made; and (c) in general perform all of the duties incident to the
office of Controller and such other duties as from time to time may be assigned
to him or her by the Chief Executive Officer or by the Board of Directors.
4.11 Compensation.
(a) The compensation of the elected officers shall be fixed from
time to time by the Compensation and Development Committee of the Board of
Directors and no such officer shall be prevented from receiving such
compensation by reason of the fact that he or she is also a Director of the
corporation.
(b) The compensation of all officers appointed by the Chief
Executive Officer shall be set by the Chief Executive Officer, from time to
time.
5. CONTRACTS, LOANS, CHECKS AND DEPOSITS
5.1 Contracts. The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the corporation, and such
authorization may be general or confined to specific instances.
5.2 Loans. No indebtedness for borrowed money shall be contracted on
behalf of the corporation and no evidences of indebtedness shall be issued in
its name unless authorized by or under the authority of a resolution of the
Board of Directors. Such authorization may be general or confined to specific
instances.
5.3 Checks, Drafts, etc. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the corporation, shall be signed by such officer or officers, agent or agents of
the corporation and in such manner, including by means of facsimile signatures,
as shall from time to time be determined by or under the authority of resolution
of the Board of Directors.
5.4 Deposits. All funds of the corporation not otherwise employed shall
be deposited from time to time to the credit of the corporation in such banks,
trust companies or other depositaries as may be selected by or under the
authority of the Board of Directors.
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6. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.1 Certificates for Shares. Certificates representing shares of the
corporation shall be in such form as shall be determined by the Board of
Directors. Such certificates shall be signed by the Chairman, Chief Executive
Officer, President or Chief Financial Officer and by the Secretary or an
Assistant Secretary. 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 the date of issue,
shall be entered on the stock transfer books of the corporation. All
certificates surrendered to the corporation for transfer shall be entered on the
stock transfer books of the corporation. All certificates surrendered to the
corporation for transfer shall be cancelled and no new certificates shall be
issued until the former certificate for a like number of shares shall have been
surrendered and cancelled, except that in case of a lost, destroyed or mutilated
certificate, a new one may be issued therefor upon such terms and indemnity to
the corporation as the Board of Directors may prescribe.
6.2 Signature by Former Officer, Transfer Agent or Registrar. In case
any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon any certificate for shares has ceased to be such
officer, transfer agent or registrar before such certificate is issued, the
certificate may be issued by the corporation with the same effect as if that
person were still an officer, transfer agent or registrar at the date of its
issue.
6.3 Uncertificated Shares. The Board of Directors may authorize the
issuance of any shares of any of the corporation's classes or series without
certificates. The authorization does not affect shares already represented by
certificates until the certificates are surrendered to the corporation.
6.4 Transfer of Shares. Transfer of shares of the corporation shall be
made only on the stock transfer books of the corporation by the holder of record
thereof or by his or her legal representative, who shall furnish proper evidence
of authority to transfer, or by his or her attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary of the corporation,
and on surrender for cancellation of the certificate for such shares. The person
in whose name shares stand on the books of the corporation shall be deemed by
the corporation to be the owner thereof for all purposes.
6.5 Restrictions on Transfer. The face or reverse side of each
certificate representing shares shall bear a conspicuous notation of any
restriction upon the transfer of such shares imposed by the corporation.
6.6 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
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shares have been acquired by a bona fide purchaser, and (b) if required by the
corporation, 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.
6.7 Consideration for Shares. The shares of the corporation may be
issued for such consideration as shall be fixed from time to time and determined
to be adequate 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 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, such shares shall be deemed to be fully paid
and nonassessable by the corporation.
6.8 Stock Regulations. The Board of Directors shall have the power and
authority to make all such rules and regulations not inconsistent with the
statutes of the State of Wisconsin as they may deem expedient concerning the
issue, transfer and registration of certificates representing shares of the
corporation including the appointment or designation of one or more stock
transfer agents and one or more stock registrars.
7. WAIVER OF NOTICE
7.1 Shareholder Written Waiver. A shareholder may waive any notice
required by the Wisconsin Business Corporation Law, the Amended and Restated
Articles of Incorporation 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, shall 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 shall be
delivered to the corporation for inclusion in the corporate records.
7.2 Shareholder Waiver by Attendance. A shareholder's attendance at a
meeting, in person or by proxy, waives objection to both of the 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.
(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.
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7.3 Director Written Waiver. A director may waive any notice required
by the Wisconsin Business Corporation Law, the Amended and Restated Articles of
Incorporation or these By-laws before or after the date and time stated in the
notice. The waiver shall be in writing, signed by the director entitled to the
notice and retained by the corporation.
7.4 Director Waiver by Attendance. A director's attendance at or
participation in a meeting of the Board of Directors or any committee thereof
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.
8. LIABILITY AND INDEMNIFICATION OF OFFICERS AND DIRECTORS
8.1 Limited Liability of Directors to Corporation and Shareholders. A
director is not liable to the corporation, its shareholders, or any person
asserting rights on behalf of the corporation or its 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:
(a) a willful failure to deal fairly with the corporation or its
shareholders in connection with a matter in which the director has a material
conflict of interest;
(b) a violation of criminal law, unless the director had reasonable
cause to believe his or her conduct was lawful, or no reasonable cause to
believe his or her conduct was unlawful;
(c) a transaction from which the director derived an improper
personal profit; or
(d) willful misconduct.
8.2 Indemnification.
(a) A corporation shall indemnify a director or officer, to the
extent he or she has been successful on the merits or otherwise in the defense
of a proceeding, for all reasonable expenses incurred in the proceeding if the
director or officer was a party because he or she is a director or officer of
the corporation.
(b) In cases not included under the foregoing paragraph, a
corporation shall indemnify a director or officer against liability incurred by
the director or officer in a
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proceeding to which the director or officer was a party because he or she is a
director or officer of the corporation, unless liability was incurred because
the director or officer breached or failed to perform a duty he or she owes to
the corporation and the breach or failure to perform constitutes any of the
following:
(i) a willful failure to deal fairly with the
corporation or its shareholders in
connection with a matter in which the
director or officer has a material conflict
of interest;
(ii) 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;
(iii) a transaction from which the director or
officer derived an improper personal profit;
or
(iv) willful misconduct.
(c) Determination of whether indemnification is required under this
Section shall be made under Section 180.0855 of the Wisconsin Business
Corporation Law.
(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 under this Section.
(e) A director or officer who seeks indemnification under this
Section shall make a written request to the corporation.
(f) Indemnification under this Section is not required if the
director or officer has previously received indemnification or allowance of
expenses from any person, including the corporation, in connection with the same
proceeding.
8.3 Reliance by Directors and Officers. Unless a director or officer
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 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:
(a) 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; or
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(b) 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.
(c) 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.
8.4 Consideration of Interests in Addition to Shareholders Interests.
In discharging his or her duties to the corporation and in determining what he
or she believes to be in the best interests of the corporation, a director or
officer may, in addition to considering the effects of any action on
shareholders, consider any of the following:
(a) the effects of the action on employees, suppliers and customers
of the corporation;
(b) the effects of the action on communities in which the
corporation operates; or
(c) any other factors the director or officer considers pertinent.
8.5 Insurance. The corporation may purchase and maintain insurance on
behalf of an individual who is an employee, agent, director or officer of the
corporation against liability asserted against or incurred by the individual in
his or her capacity as an employee, agent, director or officer or arising from
his or her status as an employee, agent, director or officer, regardless of
whether the corporation is required or authorized to indemnify or allow expenses
to the individual against the same liability under Sections 180.0851, 180.0853,
180.0856 and 180.0858 of the Wisconsin Business Corporation Law.
8.6 General.
(a) Except as limited by law, the indemnification and allowance of
expenses provided by Sections 8.1 through 8.5 of this Article do not preclude
any additional right to indemnification or allowance of expenses that a
director, officer or employee may have under any written agreement between such
person and the corporation, resolution of the Board of Directors or resolution
adopted by the corporation's shareholders.
(b) For purposes of this article, the definitions contained in
Section 180.0850 of the Wisconsin Business Corporation Law are incorporated
herein by this reference. The term "employee" shall mean a natural person who is
or was an employee of the corporation or who, while an employee of the
corporation, is or was serving at the corporation's request as a director,
officer, partner, committee, employee or agent of another
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corporation, partnership, joint venture, trust, or other enterprise, and, unless
the context requires otherwise, the estate or personal representative of the
employee.
(c) The corporation, by its Board of Directors, may indemnify under
Section 8.2, or with any limitations, any employee or former employee of the
corporation with respect to any action taken or not taken in his or her capacity
as or while an employee. Notwithstanding the foregoing, the corporation shall
indemnify an employee who is not a director or officer of the corporation, to
the extent that he or she has been successful on the merits or otherwise in
defense of a proceeding, for all expenses incurred in the proceeding if the
employee was a party because he or she was an employee of the corporation.
9. GENERAL
9.1 Fiscal Year. The fiscal year of the corporation shall end on
September 30 of each year, commencing September 30, 1961.
9.2 Seal. The Board of Directors shall provide a corporate seal which
shall be circular in form and shall have inscribed thereon the name of the
corporation and the words "Corporate Seal, Wisconsin".
9.3 Notices. Except as otherwise required by law or these By-laws, any
notice required to be given by these By-laws may be given orally or in writing
and notice may be communicated in person, by mail or private carrier, by
telephone, telegraph, teletype, facsimile or other form of wire or wireless
communication, and, if these forms of personal notice are impracticable, notice
may be communicated by a newspaper of general circulation in the area where
published, or by radio, television or other form of public broadcast
communication. Oral notice is effective when communicated. Written notice is
effective as follows: (a) if delivered in person, when received; (b) if given by
mail, when deposited, postage prepaid, in the United States mail addressed to
the director at his or her business or home address (or such other address as
the director may have designated in writing filed with the Secretary); (c) if
given by private carrier, when delivered to the carrier; (d) if given by
telegraph, when delivered to the telegraph company; and (e) if given by
facsimile, e-mail or other form of wireless communication, at the time
transmitted to a facsimile number or e-mail address at any address designated in
(b) above.
9.4 No Nominee Procedures. The corporation has not established, and
nothing contained in these By-laws shall be deemed to establish, any procedure
by which a beneficial owner of the corporation's shares that are registered in
the name of a nominee is recognized by the corporation as the shareholder under
Section 180.0723 of the Wisconsin Business Corporation Law.
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10. AMENDMENTS
10.1 Power to Amend and Repeal. Except as may be limited pursuant to
Section 10.2, these By-laws may be amended or repealed, and new By-laws may be
adopted, either by the shareholders at any meeting, or by vote of a majority of
the shares present or represented thereat, or by the Board of Directors by a
vote of a majority of the Board of Directors; except that Sections 2.3, 2.8,
3.2, 3.7, 3.8, 10.1, and 10.2 of the By-laws may be amended only by the
affirmative vote of the holders of two-thirds (2/3) of the outstanding shares
entitled to vote thereon or by the affirmative vote of a majority of the
directors. Except as may be limited pursuant to Section 10.2, the Board of
Directors shall have the power to amend or repeal any By-law adopted by the
shareholders, and any By-law adopted by the Board of Directors shall be subject
to amendment or repeal by the shareholders as well as by the directors.
10.2 Restrictions on Amendment and Repeal.
(a) The Board of Directors shall have no power to amend or repeal
any By-law or amendment adopted by the shareholders which contains a specific
provision to the effect that such By-law or amendment shall not be subject to
amendment or repeal by the Board of Directors.
(b) The Board of Directors shall have no power to amend or repeal
any By-law adopted or amended by the shareholders that fixes a greater or lower
quorum requirement or a greater voting requirement for the Board of Directors
than otherwise is provided in the Wisconsin Business Corporation Law unless the
By-law expressly provides that it may be amended or repealed by a specified vote
of the Board of Directors. Action by the Board of Directors to adopt or amend a
By-law that changes the quorum or voting requirement for the Board of Directors
must meet the same quorum requirement and be adopted by the same vote required
to take action under the quorum and voting requirement then in effect, unless a
different voting requirement is specified as provided by the preceding sentence.
A By-law that fixes a greater or lower quorum requirement or a greater voting
requirement for shareholders or voting groups of shareholders than otherwise is
provided in the Wisconsin Business Corporation Law may not be adopted, amended
or repealed by the Board of Directors.
(c) No amendment or repeal of these By-laws by the shareholders at
any meeting shall be effective unless the notice of such meeting shall have set
forth the general nature of the proposed amendment or repeal.
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