EXHIBIT 3.2
SENSIENT TECHNOLOGIES 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 April, or on such other day as may be designated by the Board of
Directors, upon the recommendation of the Nominating and Corporate Governance
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 June 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 April 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 April, 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. 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
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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 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
moreshareholders 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
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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 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
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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, 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)
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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 (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.
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
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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 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.
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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:
(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.
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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 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.
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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 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 and Corporate Governance 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
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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 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 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 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.
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3.9 Nominations. Nominations for the election of directors may be made
only by the Board of Directors, by the Nominating and Corporate Governance
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 April 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 April, 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
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.
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3.10 Compensation. The Board of Directors, irrespective of any personal
interest of any of its members, upon the recommendation of the Nominating and
Corporate Governance 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 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 recommended by the Nominating and Corporate Governance
Committee and shall be appointed by the Board of Directors as provided in the
Wisconsin Business Corporation Law. 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
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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 and Corporate Governance 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.
3.14 Audit Committee. There shall be an Audit Committee of the Board of
Directors. The purposes of the Committee are (1) to assist the Board of
Directors in overseeing (a) the quality and integrity of the corporation's
financial statements, (b) the qualifications and independence of the
corporation's independent auditor, (c) the performance of the corporation's
internal audit function and independent auditor, and (d) the corporation's
compliance with legal and regulatory requirements; (2) to prepare the report of
the Committee required to be included in the corporation's annual proxy
statement under the rules of the Securities and Exchange Commission.; and (3) to
perform the duties and responsibilities set forth below. The provisions of this
Section 3.14 shall constitute the Charter of the Audit Committee.
Membership
1. The Committee shall have at least three (3) members. Each member of
the Committee shall satisfy the independence requirements relating to
directors and audit committee members (a) of the New York Stock
Exchange and (b) under Section 10A(m) of the Securities Exchange Act
of 1934 (the "Exchange Act") and any related rules and exemptions
promulgated thereunder by the Securities and Exchange Commission.
2. The members of the Committee shall be appointed by the Board of
Directors on the recommendation of the Nominating and Corporate
Governance Committee, which shall recommend for Committee membership
such directors as it believes are qualified. Members of the Committee
shall serve at the pleasure of the Board of Directors and for such
term or terms as the Board of Directors may determine.
3. No director may serve as a member of the Committee if such director
serves on the audit committee of more than two other public
companies, unless the Board of Directors determines that such
simultaneous service would not impair the ability of such director to
effectively serve on the Committee.
4. Each member of the Committee shall be financially literate, as such
qualification is interpreted by the Board of Directors in its
business judgment, or must become
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financially literate within a reasonable period of time after
appointment to the Committee. At least one member of the Committee
shall qualify as a financial expert, as such term is defined by the
Securities and Exchange Commission pursuant to Section 407 of the
Sarbanes-Oxley Act of 2002.
Structure and Operations
5. One of the members of the Committee will be designated by the Board
of Directors to serve as the Committee chairperson. The affirmative
vote of a majority of the members of the Committee is necessary for
the adoption of any resolution. The Committee may create one or more
subcommittees and may delegate, in its discretion, all or a portion
of its duties and responsibilities to such subcommittees. The
Committee may delegate to one or more designated members of the
Committee the authority to grant pre-approvals of audit and non-audit
services pursuant to Section 10A(i)(3) of the Exchange Act and any
related rules promulgated thereunder by the Securities and Exchange
Commission, which pre-approvals shall be presented to the full
Committee at the next scheduled meeting.
6. The Committee shall have a regularly scheduled meeting at least once
every fiscal quarter, at such times and places as shall be determined
by the Committee chairperson, and may have such additional meetings
as the Committee chairperson or any two (2) of the Committee's
members deem necessary or desirable. The Committee may request (a)
any officer or employee of the corporation, (b) the corporation's
outside counsel or (c) the corporation's independent auditor to
attend any meeting (or portions thereof) of the Committee, or to meet
with any members of or consultants to the Committee, and to provide
such information as the Committee deems necessary or desirable.
7. The Committee shall meet separately, periodically, with management,
with the corporation's internal auditors (or other personnel
responsible for the corporation's internal audit function) and with
the independent auditor.
Duties and Responsibilities
The Committee's duties and responsibilities shall include all of the
following items, and such other matters as may from time to time be delegated to
the Committee by the Board of Directors:
Reports to the Board of Directors; Review of Committee Performance and
Charter
8. The Committee shall report regularly to the Board of Directors and
review with the Board of Directors any issues that arise with respect
to: (i) the quality or integrity of the corporation's financial
statements; (ii) the performance and independence of the
corporation's independent auditor; (iii) the performance of the
corporation's internal audit function; and (iv) the corporation's
compliance with legal and regulatory requirements.
9. The Committee shall undertake and review with the Board of Directors
an annual performance evaluation of the Committee, which shall
compare the performance of the Committee with the requirements of
this Charter and set forth the goals and objectives of the Committee
for the upcoming year. The performance evaluation by
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the Committee shall be conducted in such manner as the Committee
deems appropriate. The report to the Board of Directors may take the
form of an oral report by the chairperson of the Committee or any
other member of the Committee designated by the Committee to make
this report.
10. The Committee shall review and reassess the adequacy of this charter
at least annually and recommend any proposed changes to the Board of
Directors for approval.
The Corporation's Relationship With the Independent Auditor
11. The Committee shall have the sole and direct responsibility and
authority for the appointment and termination (subject, if
applicable, to shareholder ratification), compensation, evaluation
and oversight of the work of each independent auditor employed by the
corporation for the purpose of preparing or issuing an audit report
or related work, and each such independent auditor shall report
directly to the Committee. The Committee shall be responsible for
resolving disagreements between management and each such independent
auditor regarding financial reporting.
12. The Committee shall have the responsibility and authority to approve,
in advance of the provision thereof, all audit services and, subject
to Section 10A(i) of the Exchange Act and rules promulgated
thereunder, all non-audit services to be provided to the corporation
by any such independent auditor. The Committee shall have the sole
authority to approve any compensation payable by the corporation for
any approved audit or non-audit services to any such independent
auditor, including the fees, terms and conditions for the performance
of such services.
13. The Committee shall review the independent auditors' audit plan,
including its scope, staffing, locations, reliance upon management,
and internal audit and general audit approach.
14. The Committee shall, at least annually: (i) obtain a written report
by the independent auditor describing, to the extent permitted under
applicable auditing standards: (a) the independent auditor's internal
quality-control procedures; (b) any material issues raised by the
most recent quality-control review, or peer review, of the
independent auditor, or by any inquiry or investigation by
governmental or professional authorities, within the preceding five
years, respecting one or more independent audits carried out by the
independent auditor, and any steps taken to deal with any such
issues; and (c) all relationships between the independent auditor and
the corporation; and (ii) review the foregoing report and the
independent auditor's work throughout the year and evaluate the
independent auditor's qualifications, performance and independence,
including a review and evaluation of the lead partner on the
independent auditor's engagement with the corporation, and present
its conclusions to the Board of Directors and, if so determined by
the Committee, recommend that the Board of Directors take additional
action to satisfy itself of the qualifications, performance and
independence of the independent auditor.
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15. The Committee shall, at least annually, discuss with the independent
auditor, out of the presence of management if deemed appropriate: (i)
the matters required to be discussed by Statement on Auditing
Standards 61, as it may be modified or supplemented, relating to the
conduct of the audit; (ii) the audit process, including, without
limitation, any problems or difficulties encountered in the course of
the performance of the audit, including any restrictions on the
independent auditor's activities or access to requested information
imposed by management, and management's response thereto, and any
significant disagreements with management; and (iii) the
corporation's internal controls and the responsibilities, budget and
staffing of the corporation's internal audit function, including any
"management" or "internal control" letter issued or proposed to be
issued by such auditor to the corporation.
16. The Committee shall establish policies for the corporation's hiring
of employees or former employees of the independent auditor.
17. The Committee shall review, and discuss as appropriate with
management, the internal auditors and the independent auditor, the
report of the independent auditor required by Section 10A(k) of the
Exchange Act.
Financial Reporting and Disclosure Matters
18. The Committee shall review and discuss with management and the
independent auditor:
(i) prior to the annual audit, the scope, planning and staffing of
the annual audit;
(ii) the corporation's annual audited financial statements and
quarterly financial statements, including the corporation's
disclosures under "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and the results
of the independent auditor's reviews of the quarterly financial
statements;
(iii) significant issues regarding accounting and auditing principles
and practices and financial statement presentations, including
all critical accounting policies and estimates, any significant
changes in the corporation's selection or application of
accounting principles and any significant issues as to the
adequacy of the corporation's internal controls and any special
audit steps adopted in light of the material control
deficiencies;
(iv) analyses prepared by management and/or the independent auditor
setting forth significant financial reporting issues and
judgments made in connection with the preparation of the
financial statements, including analyses of the effects of
alternative GAAP methods on the financial statements;
(v) the effect of regulatory and accounting initiatives, as well as
off-balance sheet structures, on the financial statements;
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19. (vi) any significant changes to the corporation's auditing and
accounting principles and practices suggested by the
independent auditor, internal audit personnel or management;
and
(vii) management's internal control report prepared in accordance
with rules promulgated by the Securities and Exchange
Commission pursuant to Section 404 of the Sarbanes-Oxley Act.
20. The Committee shall recommend to the Board of Directors whether the
annual audited financial statements should be included in the
corporation's Annual Report and Form 10-K.
21. The Committee shall review and discuss with management the
corporation's practices regarding earnings press releases and the
provision of financial information and earnings guidance by
management to analysts and ratings agencies.
22. The Committee shall periodically review and discuss with management
the corporation's guidelines and policies with respect to the process
by which the corporation undertakes risk assessment and risk
management, including discussion of the corporation's major financial
risk exposures and the steps management has taken to monitor and
control such exposures. The Committee shall not be required to
undertake these reviews and discussions to the extent they are
performed by the Finance Committee of the corporation.
23. The Committee shall review and discuss with the Chief Executive
Officer and Chief Financial Officer the procedures undertaken in
connection with the Chief Executive Officer and Chief Financial
Officer certifications for Forms 10-K, Forms 10-Q and other reports
including their evaluation of the corporation's disclosure controls
and procedures and internal controls.
24. The Committee shall annually obtain from the independent auditor
assurance that the audit was conducted in a manner consistent with
Section 10A of the Exchange Act and any other applicable rules or
regulations.
Internal Audit, Compliance Matters and Other
24. The Committee shall review the budget, activities, organizational
structure, qualifications and performance of the internal audit
department, as needed.
25. The Committee shall review any reports to management covering issues
which are material to the company's financial statements prepared by
internal audit personnel, and management's responses.
26. The Committee shall establish and maintain procedures for: (i) the
receipt, retention, and treatment of complaints received by the
corporation regarding accounting, internal accounting controls, or
auditing matters; and (ii) the confidential, anonymous submission by
employees of the corporation of concerns regarding questionable
accounting or auditing matters.
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27. The Committee shall review with management and the independent
auditor any correspondence with regulators or governmental agencies
and any employee complaints or published reports that raise material
issues regarding the corporation's financial statements or accounting
policies.
28. On at least an annual basis, the Committee shall review with the
corporation's counsel, any legal matters that could have a
significant impact on the corporation's financial statements, the
corporation's compliance with applicable laws and regulations, and
inquiries received from regulators or governmental agencies.
29. The Committee shall exercise such other powers and perform such other
duties and responsibilities as are required or recommended under New
York Stock Exchange rules.
30. The Committee shall exercise such other powers and perform such other
duties and responsibilities as are incidental to the purposes, duties
and responsibilities specified herein and as may from time to time be
delegated to the Committee by the Board of Directors.
Authority and Resources
The Committee may, without further approval by the Board of Directors,
obtain such advice and assistance, including, without limitation, the
performance of special audits, reviews and other procedures, from outside
accounting, legal or other advisors as the Committee determines to be necessary
or advisable in connection with the discharge of its duties and responsibilities
hereunder. Any accounting, legal or other advisor retained by the Committee may,
but need not, be in the case of an outside accountant, the same accounting firm
employed by the corporation for the purpose of rendering or issuing an audit
report on the corporation's annual financial statements, or in the case of an
outside legal or other advisor, otherwise engaged by the corporation for any
other purpose.
The corporation shall pay to the independent auditor employed by the
corporation for the purpose of rendering or issuing an audit report and to any
outside accounting, legal or other advisor retained by the Committee pursuant to
the preceding paragraph such compensation, including, without limitation, usual
and customary expenses and charges, as shall be determined by the Committee.
3.15 Compensation and Development Committee. There shall be a Compensation
and Development Committee of the Board of Directors. The purposes of the
Committee are to: (1) discharge the Board of Directors' responsibilities
relating to compensation of the corporation's executives; (2) prepare any report
of the Committee on executive compensation required by the rules and regulations
of the Securities and Exchange Commission to be included in the corporation's
annual proxy statement; and (3) perform the duties and responsibilities set
forth below. The provisions of this Section 3.15 shall constitute the Charter of
the Compensation and Development Committee.
Membership
(a) The Committee shall be composed of at least three (3) members,
each of
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whom shall be appointed by the Board of Directors on the
recommendation of the Nominating and Corporate Governance
Committee, which shall recommend for Committee membership such
directors as it believes are qualified. Members of the Committee
shall serve at the pleasure of the Board of Directors and for
such term or terms as the Board of Directors may determine.
(b) Each member of the Committee shall meet the independence
requirements of the New York Stock Exchange and be both a
"nonemployee director" (within the meaning of 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).
Structure and Operations
(c) One of the members of the Committee will be designated by the
Board of Directors to serve as the Committee chairperson. The
affirmative vote of a majority of the members of the Committee is
necessary for the adoption of any resolution. The Committee may
create one or more subcommittees and may delegate, in its
discretion, all or a portion of its duties and responsibilities
to such subcommittees.
(d) The Committee shall have at least two regularly scheduled
meetings per year, at such times and places determined by the
Committee chairperson, and may have such additional meetings as
the Committee chairperson or any two (2) of the Committee's
members deem necessary or desirable. The Committee may invite
such members of management to its meetings as it may deem
desirable or appropriate, consistent with the maintenance of the
confidentiality of compensation discussions.
Duties and Responsibilities
The Committee's duties and responsibilities shall include all of the
responsibilities of a qualified compensation committee under New York Stock
Exchange rules, including, but not limited to the following items, and such
other matters as may from time to time be delegated to the Committee by the
Board of Directors:
(e) The Committee shall review and approve all compensation plans and
programs (philosophy and guidelines) of the corporation and, in
consultation with senior management, oversee the development and
implementation of the corporation's compensation program,
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 programs.
(f) The Committee shall, at least annually, review and approve all
compensation arrangements and changes in the compensation of the
Chief Executive Officer and the other officers appointed by the
Board of Directors, including, without limitation (i) base
salary, (ii) short and long-term incentive awards and
opportunities; (iii) employment agreements, severance
arrangements and
19
change-in-control agreements/provisions, in each case as, when
and if appropriate; and (iv) any special or supplemental
benefits.
(g) The Committee shall, at least annually, review and approve
corporate goals and objectives relevant to compensation of the
Chief Executive Officer, evaluate the performance of the Chief
Executive Officer in light of those goals and objectives, report
the results of such evaluation to the Board of Directors and set
the Chief Executive Officer's compensation level based on this
evaluation.
(h) The Committee shall review and approve all awards under the
corporation's Stock Option Plans.
(i) The Committee shall review and make recommendations to the Board
of Directors with respect to incentive-compensation plans and
equity-based plans, oversee the administration of these plans and
discharge any responsibilities imposed on the Committee by any of
these plans.
(j) 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.
(k) The Committee shall approve all executive employment contracts.
(l) The Committee shall prepare such reports as are required to be
included in the corporation's proxy statement, including an
annual report regarding executive compensation for inclusion in
the corporation's annual proxy statement in accordance with
applicable Securities and Exchange Commission rules and
regulations.
(m) The Committee shall undertake and review with the Board of
Directors an annual performance evaluation of the Committee,
which shall compare the performance of the Committee with the
requirements of the corporation's By-laws and the Committee's
charter and set forth the goals and objectives of the Committee
for the upcoming year. The Committee shall conduct such
performance evaluation in such manner as the Committee deems
appropriate, and may report the results of its performance
evaluation through an oral report by the chairperson of the
Committee or any other member of the Committee designated by the
Committee to make this report.
(n) The Committee shall annually review and approve the Chief
Executive Officer's succession plans for the corporation.
(o) The Committee shall oversee the corporation's regulatory
compliance with respect to compensation matters, including the
corporation's policies on structuring compensation programs to
preserve tax deductibility, and, as and when required,
establishing performance goals and certifying that performance
goals have been obtained for purposes of Section 162(m) of the
20
Internal Revenue Code.
(e) The Committee shall report to the Board of Directors periodically
on all matters for which the Committee has responsibility and at
such times as the Board of Directors may otherwise request.
(f) The Committee shall annually review and reassess the adequacy of
this Charter and recommend to the Board of Directors for approval
such changes as the Committee believes are appropriate.
(g) The Committee shall exercise such other powers and perform such
other duties and responsibilities as are incidental to the
purposes, duties and responsibilities specified herein and as may
from time to time be delegated to the Committee by the Board of
Directors.
Authority and Resources
The Committee shall have the sole authority, without further approval
by the Board of Directors, to select, retain and terminate a compensation
consultant to assist in the evaluation of Chief Executive Officer or senior
executive compensation and to approve any compensation payable by the
corporation to such consultant, including the fees, terms and other conditions
for the performance of such services. In addition, the Committee may, without
further approval by the Board of Directors, obtain such advice and assistance
from outside accounting, legal or other advisors as the Committee determines to
be necessary or advisable in connection with the discharge of its duties and
responsibilities hereunder. Any accounting, legal or other advisor retained by
the Committee may, but need not, be in the case of an outside accountant, the
same accounting firm employed by the corporation for the purpose of rendering or
issuing an audit report on the corporation's annual financial statements, or in
the case of outside counsel or other advisor, otherwise engaged by the
corporation for any other purpose.
The corporation shall pay to any compensation consultant or outside
accounting, legal or other advisor retained by the Committee pursuant to the
preceding paragraph such compensation, including, without limitation, usual and
customary expenses and charges, as shall be determined by the Committee.
3.16 Finance Committee. There shall be a Finance 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 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
21
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 and Corporate Governance Committee. There shall be a
Nominating and Corporate Governance Committee of the Board of Directors. The
purposes of the Committee are to: (1) identify individuals qualified and
suitable to become members of the Board of Directors and its committees and
recommend to the Board of Directors the director nominees for each Annual
Meeting of shareholders; (2) develop and recommend to the Board of Directors a
set of corporate governance principles for the corporation; and (3) perform the
duties and responsibilities set forth below. The provisions of this Section 3.17
shall constitute the Charter of the Nominating and Corporate Governance
Committee.
Membership
(a) The Committee shall have at least three (3) members, each of whom
shall meet the independence requirements of the New York Stock
Exchange.
(b) The members of the Committee shall be appointed by the Board of
Directors on the recommendation of the Committee, which shall
recommend for Committee membership such directors as it believes
are qualified. Members of the Committee shall serve at the
pleasure of the Board of Directors and for such term or terms as
the Board of Directors may determine.
Structure and Operations
(c) One of the members of the Committee will be designated by the
Board of Directors to serve as the Committee chairperson. The
affirmative vote of a majority of the members of the Committee is
necessary for the adoption of any resolution. The Committee may
create one or more subcommittees and may delegate, in its
discretion, all or a portion of its duties and responsibilities
to such subcommittees.
(d) The Committee shall meet at least twice a year, at such times and
places determined by the Committee chairperson, and may have such
additional meetings as the Committee chairperson or any two (2)
of the Committee's members deem necessary or desirable. The
Committee may invite such members of management to its meetings
as it may deem desirable or appropriate.
Duties and Responsibilities
The Committee's duties and responsibilities shall include all of the
responsibilities of a nominating and corporate governance committee under New
York Stock Exchange rules, including but not limited to the following items, and
such other matters as may from time to time be delegated to the Committee by the
Board of Directors:
Board of Directors and Committees
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(e) The Committee shall recommend to the Board of Directors
appropriate criteria for the selection of new directors and shall
periodically review the criteria adopted by the Board of
Directors and, if deemed desirable, recommend to the Board of
Directors changes to such criteria.
(f) The Committee shall identify and recommend to the Board of
Directors candidates the Committee believes are qualified and
suitable to serve as director consistent with criteria for
selection of new directors adopted from time to time by the Board
of Directors and shall recommend candidates to the Board of
Directors for nomination to stand for election at each Annual
Meeting of shareholders or, if applicable, at special meetings of
shareholders where directors are to be elected. The Committee
shall recommend persons to serve as proxies to vote proxies
solicited by the Board of Directors in connection with such
meetings. In the case of a vacancy in the office of a director
(including a vacancy created by an increase in the size of the
Board of Directors), the Committee shall recommend to the Board
of Directors an individual to fill such vacancy through
appointment by a majority of the corporation's directors.
(g) 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.
(h) 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.
(i) The Committee shall assist the Board of Directors in making a
determination as to whether or not each director of the
corporation satisfies the independence requirements relating to
directors of the New York Stock Exchange and under Section 10A(m)
of the Securities Exchange Act of 1934 and any related rules and
exemptions promulgated thereunder by the Securities and Exchange
Commission.
(j) The Committee shall review candidates for election as directors
submitted by shareholders for compliance with these By-laws.
(k) The Committee shall identify Board members qualified to fill
vacancies on any committee of the Board (including the Committee)
and recommend that the Board appoint the identified member or
members to the respective committee. In recommending a member for
committee membership, the Committee shall take into consideration
the factors set forth in the charter of the committee, if any, as
well as any other factors it deems appropriate, including without
limitation, the corporation's corporate governance principles,
the consistency of the member's experience with the goals of the
committee and the interplay of the member's experience with the
experience of the other committee members. The Committee shall
consider candidates proposed by management, members of the
Committee and other members of the Board of Directors.
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(l) The Committee shall periodically review the compensation of the
corporation's directors and make recommendations to the Board of
Directors with respect thereto. In evaluating the compensation of
directors who are members of the corporation's Audit Committee,
the Committee shall take into consideration, without limitation,
the independence requirements for audit committee members under
the New York Stock Exchange rules and Section 10A of the
Securities Exchange Act of 1934 and any related rules or
regulations promulgated thereunder by the Securities and Exchange
Commission.
Oversight and Corporate Governance
(m) The Committee shall establish procedures for the Committee to
exercise oversight of the evaluation of the Board of Directors
and management.
(n) The Committee shall oversee the system of corporate governance of
the corporation, including: developing and recommending to the
Board of Directors a set of corporate governance principles for
the corporation; (ii) reviewing and reassessing the adequacy of
those principles at least once a year; and (iii) recommending to
the Board of Directors for approval any changes to the principles
as the Committee believes are appropriate.
(o) The Committee shall undertake and review with the Board of
Directors an annual performance evaluation of the Committee,
which shall compare the performance of the Committee with the
requirements of this Charter and set forth the goals and
objectives of the Committee for the upcoming year. The Performance
Evaluation shall be conducted in such manner as the Committee deems
appropriate and shall recommend to the Board of Directors any
improvements to this Charter deemed necessary or desirable by the
Committee. The report to the Board of Directors may take the form
of an oral report by the Committee chairperson or any other member
of the Committee designated by the Committee to make such report.
(p) The Committee shall report periodically to the Board of Directors
on all matters for which the Committee has been delegated
responsibility and at such times as the Board of Directors may
otherwise request.
Other
(q) The Committee shall annually review and reassess the adequacy of
this Charter and recommend to the Board of Directors for approval
such changes as the Committee believes are appropriate.
(r) The Committee shall recommend to the Board of Directors the date,
time and place of the Annual Meeting of the shareholders.
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(s) The Committee shall exercise such other powers and perform such
other duties and responsibilities as are incidental to the
purposes, duties and responsibilities specified herein and as may
from time to time be delegated to the Committee by the Board of
Directors.
Authority and Resources
The Committee shall have the sole authority, without further approval by
the Board of Directors, to select, retain and terminate a consultant or search
firm to be used to identify director candidates and evaluate issues relating to
the compensation of directors and to approve any compensation payable by the
corporation to such consultant or search firm, including the fees, terms and
other conditions for the performance of such services. In addition, the
Committee may, without further approval by the Board of Directors, obtain such
advice and assistance from outside legal or other advisors as the Committee
determines to be necessary or advisable in connection with the discharge of its
duties and responsibilities hereunder. Any legal or other advisor retained by
the Committee may, but need not, be otherwise engaged by the corporation for any
other purpose.
The corporation shall pay to any consultant or search firm or outside
legal or other advisor retained by the Committee pursuant to the preceding
paragraph such compensation, including, without limitation, usual and customary
expenses and charges, as shall be determined by the Committee.
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
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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 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.
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
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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.
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,
27
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.
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
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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.
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.
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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.
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 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.
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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.
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.
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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 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
subsection shall be made under section 180.0855 of the Wisconsin Business
Corporation Law.
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(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 subsection.
(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
(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.
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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 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 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 December
31 of each year, the first full calendar fiscal year being the year ending
December 31, 2000.
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.
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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.
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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SENSIENT TECHNOLOGIES CORPORATION
Amended and Restated By-laws
TABLE OF CONTENTS
1. OFFICES 1
1.1 Business Offices 1
1.2 Registered Office 1
2. SHAREHOLDERS 1
2.1 Annual Meeting 1
2.2 Purposes of Annual Meeting 1
2.3 Special Meetings 2
2.4 Place of Meeting 5
2.5 Notice of Meeting 5
2.6 Fixing of Certain Record Dates 5
2.7 Voting Lists 6
2.8 Quorum; Votes 6
2.9 Proxies 7
2.10 Voting of Shares 7
2.11 Subsidiary Shares 7
2.12 Acceptance of Instrument Showing
Shareholder Action 7
2.13 Conduct of Meeting 8
2.14 Postponement: Adjournment 8
3. BOARD OF DIRECTORS 9
3.1 General Powers 9
3.2 Number, Tenure and Qualifications 9
3.3 Regular Meetings 10
3.4 Special Meetings 10
3.5 Notice of Meetings 10
3.6 Quorum; Votes 10
3.7 Removal and Resignation 10
3.8 Vacancies 10
3.9 Nominations 11
3.10 Compensation 12
3.11 Presumption of Assent 12
3.12 Committees of the Board of Directors 12
3.13 Executive Committee 13
3.14 Audit Committee 13
3.15 Compensation and Development Committee 18
3.16 Finance Committee 21
3.17 Nominating and Corporate
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Governance Committee 22
3.18 Scientific and Advisory Committee 25
3.19 Meetings of Committees 25
3.20 Informal Action Without Meeting 26
3.21 Telephonic Meetings 26
4. OFFICERS 26
4.1 Number 26
4.2 Appointment and Term of Office 27
4.3 Removal 27
4.4 Resignation 27
4.5 The Chief Executive Officer 27
4.6 The President 28
4.7 Corporate Vice Presidents 28
4.8 The Secretary 28
4.9 The Treasurer 29
4.10 The Controller 29
4.11 Compensation 29
5. CONTRACTS, LOANS, CHECKS AND DEPOSITS 29
5.1 Contracts 29
5.2 Loans 29
5.3 Checks. Drafts, etc 29
5.4 Deposits 30
6. CERTIFICATES FOR SHARES AND THEIR TRANSFER 30
6.1 Certificates for Shares 30
6.2 Signature by Former Officer,
Transfer Agent or Registrar 30
6.3 Uncertificated Shares 30
6.4 Transfer of Shares 30
6.5 Restrictions on Transfer 30
6.6 Lost, Destroyed or Stolen Certificates 30
6.7 Consideration for Shares 31
6.8 Stock Regulations 31
7. WAIVER OF NOTICE 31
7.1 Shareholder Written Waiver 31
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7.2 Shareholder Waiver by Attendance 31
7.3 Director Written Waiver 31
7.4 Director Waiver by Attendance 31
8. LIABILITY AND INDEMNIFICATION OF DIRECTORS 32
8.1 Limited Liability of Directors to
Corporation and Shareholders 32
8.2 Indemnification 32
8.3 Reliance by Directors and Officers 33
8.4 Consideration of Interests in
Addition to Shareholders' Interests 33
8.5 Insurance 33
8.6 General 34
9. GENERAL 34
9.1 Fiscal Year 34
9.2 Seal 34
9.3 Notices 34
9.4 No Nominee Procedures 35
10. AMENDMENTS 35
10.1 Power to Amend and Repeal 35
10.2 Restrictions on Amendment and Repeal 35
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