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EXHIBIT 3.8
ARTICLE I
OFFICES
The principal office of the corporation in the State of Wisconsin shall be
located in the City of Pewaukee, County of Waukesha. 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.
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.
ARTICLE II
SHAREHOLDERS
Section 1 - Annual Meeting.
The annual meeting of the shareholders shall be held on the second Friday
in the month of April in each year beginning with the year 1970, at the hour of
1:00 o'clock P.M., for the purposes of electing directors and for the
transaction of such other business as may come before the meeting. If the day
fixed for the annual meeting shall be a legal holiday in the `State of
Wisconsin, such meeting shall be held on the next succeeding business day. If
the election of directors shall not be held on the day designated herein for any
annual meeting of the shareholders, or at any adjournment thereof, the Board of
Directors shall cause the election to be held at a special meeting of the
shareholders as soon thereafter as conveniently may be.
Section 2 - Special Meetings.
Special meetings of the shareholders, for any purpose or purposes, may be
called by the President or the Board of Directors, and shall be called by the
President at the request of the holders of not less than one-tenth of all the
outstanding shares of the corporation entitled to vote at the meeting.
Section 3 - Place of Meeting.
The Board of Directors may designate any place, either within or without
the State of Wisconsin, as the place of meeting for any annual meeting or for
any special meeting called by the Board of Directors. A waiver of notice signed
by all shareholders entitled to vote at a meeting may designate any place,
either within or without the State of Wisconsin, as the place for the holding of
such meeting. If no designation is made, or if a special meeting be otherwise
called, the place of meeting shall be the registered office of the corporation
in the State of Wisconsin, but any meeting may be adjourned to reconvene at any
place designated by vote of a majority of the shares represented thereat.
Section 4 - Notice of Meeting.
Written notice stating the place, day and hour of the meeting and, the
purpose or purposes for which the meeting is called,. shall be delivered not
less than ten nor more than fifty days before the date of the meeting, either
personally or by mail, by or at the direction of the President, or the
Secretary, or the officer or persons calling the meeting, to each shareholder of
record entitled to vote at such meeting. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail, addressed to the
shareholder at his address as it appears on the stock record books of the
corporation, with postage thereon prepaid.
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Section 5 - Closing of Transfer Books or Fixing of Record Date.
For the purpose of determining shareholders entitled to notice of or to
vote at any meeting of shareholders or any adjournment thereof, or shareholders
entitled to receive payment of any dividend, or in order to make a determination
of shareholders for any other proper purpose, the Board of Directors, of the
corporation may provide that the stock transfer books shall be closed for a
stated period but not to exceed, in any case, fifty days. If the stock transfer
books shall be closed for the purpose of determining shareholders entitled to
notice of or to vote at a meeting of shareholders, such books shall be closed
for at least ten days immediately preceding such meeting. In lieu of closing the
stock transfer books, the Board of Directors may fix in advance a date as the
record date for any such determination of shareholders, such date in any case to
be not more than fifty days and, in case of a meeting of shareholders, not less
than ten days prior to the date on which the particular action, requiring such
determination of shareholders, is to be taken. If the stock transfer book-s are
not closed and no record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, or shareholders
entitled to receive payment of a dividend, the close of business on the date on
which notice of the meeting is mailed or on the date on which the resolution of
the Board of Directors declaring such dividend is adopted, as the case may be,
shall be the record date for such determination of shareholders. When a
determination of shareholders entitled to vote at any meeting of shareholders
has been made as provided in this section, such determination shall be applied
to any adjournment thereof except where the determination has been made through
the closing of the stock transfer books and the stated period of closing has
expired.
Section 6 - Voting Lists.
The officer or agent having charge of the stock transfer books for shares
of the corporation shall make, at least ten days before each meeting of
shareholders, a complete list of the shareholders entitled to vote at such
meeting, or any adjournment thereof, arranged in alphabetical order, with the
address of and the number of shares held by each, which list, for a period of
ten days prior to such meeting, shall be kept on file at the registered office
of the corporation and shall be subject to inspection by any shareholder at any
time during usual business hours. Such list shall also be produced and kept open
at the time and place of the meeting and shall be subject to the inspection of
any shareholder during the whole time of the meeting. The original stock
transfer books shall be prima facie evidence as to who are the shareholders
entitled to examine such list or transfer books or to vote at any meeting of
shareholders. Failure to comply with the requirements of this section shall not
affect the validity of any action taken at such meeting.
Section 7 - Quorum.
A majority of the outstanding shares of the corporation entitled to vote,
represented in person or by proxy, shall constitute a quorum at a meeting of
shareholders. Though less than a quorum of the outstanding shares are
represented at a meeting, a majority of the shares so represented may adjourn
the meeting from time to time without further notice. At such adjourned meeting
at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
Section 8 - Proxies.
At all meetings of shareholders, a shareholder entitled to vote may vote by
proxy appointed in writing by the shareholder or by his duly authorized attorney
in fact. Such proxy shall be filed with the Secretary of the corporation before
or at the time of the meeting. No proxy shall be valid after eleven months from
the date of its execution, unless otherwise provided in the proxy.
Section 9 - Voting of Shares.
Each outstanding share entitled to vote shall be entitled to one vote upon
each matter submitted to a vote at a meeting of shareholders.
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Section 10 - Voting Company's Shares.
Shares of the corporation belonging to it shall not be voted directly or
indirectly at any meeting and shall not be counted in determining the total
number of outstanding shares at any given time, but shares held by this
corporation in a fiduciary capacity may be voted and shall be counted in
determining the total number of outstanding shares at any given time.
Section 11 - Shares in Other Corporation's Name.
Shares standing in the name of another corporation may be voted either in
person or by proxy, by the president of such corporation or any other officer
appointed by such president. A proxy executed by any principal officer of such
other corporation or assistant thereto shall be conclusive evidence of the
signer's authority to act, in the absence of express notice to this corporation,
given in writing to the secretary of this corporation, of the designation of
some other person by the board of directors or the by-laws of such other
corporation.
Section 12 - Informal Action by Shareholders.
Any action required to be taken at a meeting of the shareholders, or any
other action which may be taken at a meeting of the shareholders, may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all of the shareholders entitled to vote with respect to the
subject matter thereof.
ARTICLE III
BOARD OF DIRECTORS
Section 1 - General Powers.
The business and affairs of the corporation shall be managed by its Board
of Directors.
Section 2 - Number, Tenure and Qualifications.
The number of directors of the corporation shall be three(3). Each director
shall hold office until the next annual meeting of shareholders and until his
successor shall have been elected and qualified. Directors need not be residents
of the State of Wisconsin or shareholders of the corporation.
Section 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 provide, by resolution, the time and place, either within or
without the State of Wisconsin, for the holding of additional regular meetings
without other notice than such resolution.
Section 4 - Special Meetings.
Special meetings of the Board of Directors may be called by or at the
request of the President, Secretary or any two directors. 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.
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Section 5 - Notice.
Notice of any special meeting shall be given at least 4-8 hours previously
thereto by written notice delivered personally or mailed to each director at his
business address, or by telegram. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail so addressed, with postage
thereon prepaid. If notice be given by telegram, such notice shall be deemed to
be delivered when the telegram is delivered to the telegraph company. Whenever
any notice whatever is required to be given to any director of the corporation
under the provisions of these by-laws or under the provisions of the articles of
incorporation or under the provisions of any statute, a waiver thereof in
writing, signed at any time, whether before or after the time of meeting, by the
director entitled to such notice, shall be deemed equivalent to the giving of
such notice. The attendance of a director at a meeting shall constitute a waiver
of notice of such meeting, except where a director attends a meeting and objects
thereat to the transaction of any business because the meeting is not lawfully
called or convened. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the Board of Directors need by specified
in the notice or waiver of notice of such meeting.
Section 6 - Quorum.
A majority of the number of directors fixed by Section 2 of this Article
III 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.
Section 7 - Removal.
Any director may be removed from office by the affirmative vote of a
majority of the shares outstanding entitled to vote for the election of such
director taken at a special meeting of shareholders called for that purpose.
Section 8 - Vacancies.
The Board of Directors may fill any vacancy in their board happening after
any regular annual election or any vacancy created by an increase in the
authorized number of directors until the next succeeding election, by the
affirmative vote of a majority of the directors then in office, although less
than a quorum.
Section 9 - Compensation.
The Board of Directors, by affirmative vote of a majority of the directors
then in office, and irrespective of any personal interest of any of its members
may establish reasonable compensation of all directors for services to the
corporation as directors, officers or otherwise, or may delegate such authority
to an appropriate committee.
Section 10 - Presumption of Assent.
A director of the corporation who is present at a meeting of the Board of
Directors or a committee thereof at which action on any corporate matter is
taken shall be presumed to have assented to the action taken unless his dissent
shall be entered in the minutes of the meeting or unless he shall file his
written dissent to such action with the person acting as the secretary of the
meeting before the adjournment thereof or shall forward such dissent by
registered mail to the Secretary of the corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
Section 11 - Committees.
The Board of Directors by resolution adopted by the affirmative vote of a
majority of the number of directors fixed by Section 2 of this Article III may
designate one or more committees, each committee to consist of three or more
directors elected by the Board of Directors, which to the extent provided in
said resolution, as initially adopted, and as thereafter supplemented or amended
by further resolution adopted by a like vote, shall have and may exercise, when
the
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Board of Directors is not in session, the powers of the Board of Directors in
the management of the business and affairs of the corporation, except action in
respect to dividends to shareholders, election of officers or the filling of
vacancies in the Board of Directors or committees created pursuant to this
section. The Board of Directors may elect one or more of its members as
alternate members of any such committee who may take the place of any absent
member or members at any meeting of such committee, upon request by the
President or upon request by the chairman of such meeting. Each such committee
shall fix its own rules governing the conduct of its activities and shall make
such reports to the Board, of Directors of its activities as the Board of
Directors may request.
ARTICLE IV
OFFICERS
Section 1 - Number.
The principal officers of the corporation shall be a President, Vice-Presidents,
a Secretary, and a Treasurer, each of whom shall be elected by the Board of
Directors. Such other officers and assistant officers as may be deemed necessary
may be elected or appointed by the Board of Directors. Any two or more offices
may be held by the same person, except the offices of President and Secretary
and the offices of President and Vice-President.
Section 2 - Election and Term of Office.
The officers of the corporation to be elected by the Board of Directors
shall be elected annually by the Board of Directors at the first meeting of the
Board of Directors held after each annual meeting of the shareholders. If the
election of officers shall not be held at such meeting, such election shall be
held as soon thereafter as conveniently may be. Each officer shall hold office
until his successor shall have been duly elected and shall have qualified or
until his death or until he shall resign or shall have been removed in the
manner hereinafter provided.
Section 3 - Removal.
Any officer or agent elected or appointed by the Board of Directors may be
removed by the Board of Directors whenever in its judgment the best interests of
the corporation will be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed. Election or
appointment shall not of itself create contract rights.
Section 4 - Vacancies.
A vacancy in any principal office because of death, resignation, removal,
disqualification or otherwise, shall be filled by the Board of Directors for the
unexpired portion of the term.
Section 5 - President.
The President shall be the principal executive officer of the corporation
and, subject to the control of the Board of Directors, shall in general
supervise and control all of the business and affairs of the corporation. He
shall,' when present, preside at all meetings of the shareholders and of the
Board of Directors. He may sign, with the Secretary or any other proper officer
of the corporation thereunto authorized by the Board of Directors, certificates
for shares of the corporation, any deeds, mortgages, bonds, contracts, or other
instruments which the Board of Directors has authorized to be executed, except
in cases where the signing and execution thereof shall be expressly delegated by
the Board of Directors or by these by-laws to some other officer or agent of the
corporation, or shall be required by law to be otherwise signed or executed; and
in general shall perform all duties incident to the office of President and such
other duties as may be prescribed by the Board of Directors from time to time.
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Section 6 - The Vice-Presidents.
In the absence of the President or in the event of his death, inability
or refusal to act, the Vice-President (or in the event there be more than one
Vice-President, the Vice-Presidents in the order designated at the time of their
election, or in the absence of any designation, then in the order of their
election) shall perform the duties of the President, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
President. Any Vice-President may sign, with the Secretary or an Assistant
Secretary certificates for shares of the corporation; and shall perform such
other duties as from time to time may be assigned to him by the President or by
the Board of Directors.
Section 7 - The Secretary.
The Secretary shall: (a) keep the minutes of the shareholders' and of
the Board of Directors' meetings in one or more books provided for that purpose;
(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) keep a register of the post office
address of each shareholder which shall be furnished to the Secretary by such
shareholder; (e) sign with the President, or a Vice-President, certificates for
shares of the corporation, the issuance of which shall have been authorized by
resolution of the Board of Directors; (f) have general charge of the stock
transfer books of the corporation; and (g) in general perform all duties
incident to the office of Secretary and such other duties as from time to time
may be assigned to him by the President or by the Board of Directors.
Section 8 - The Treasurer.
If required by the Board of Directors, the Treasurer shall give a bond
for the faithful discharge of his duties in such sum and with such surety or
sureties as the Board of Directors shall determine. He 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 Article V 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 by the President
or by the Board of Directors.
Section 9 - Assistant Secretaries and Assistant Treasurers.
The Assistant Secretaries, when authorized by the Board of Directors,
may sign with the President or a Vice-President certificates for shares of the
corporation the issuance of which shall have been authorized by a resolution of
the Board of Directors. The Assistant Treasurers shall respectively, if required
by the Board of Directors, give bonds for the faithful discharge of their duties
in such sums and with such sureties as the Board of Directors shall determine.
The Assistant Secretaries and Assistant Treasurers, in general, shall perform
such duties as shall be assigned to them by the Secretary or the Treasurer,
respectively, or by the President or the Board of Directors.
Section 10 - Salaries.
The salaries of the officers shall be fixed from time to time by the
Board of Directors and no officer shall be prevented from receiving such salary
by reason of the fact that he is also a director of the corporation.
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ARTICLE V
CONTRACTS, LOANS, CHECKS, AND DEPOSITS
Section 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.
Section 2 - Loans.
No loans 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.
Section 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 as shall from time to time be determined by or under the authority
of resolution of the Board of Directors.
Section 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.
ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 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 President or a Vice-President 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 date of issue,
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 certificate 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.
Section 2 - 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
legal representative, who shall furnish proper evidence of authority to
transfer, or by his 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.
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Section 3 - Stock Regulations.
The Board of Directors shall have the power and authority to make all
such further rules and regulations not inconsistent with the statutes of the
State of Wisconsin as they may deem expedient concerning the issue, transfer and
registration of certificates representing share of the corporation.
ARTICLE VII
FISCAL YEAR
The fiscal year of the corporation shall begin on the first day of
January and end on the last day of December in each year.
ARTICLE VIII
DIVIDENDS
The Board of Directors may from time to time declare, and the
corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law and its articles of incorporation.
ARTICLE IX
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."
ARTICLE X
AMENDMENTS
Section 1 - Board of Directors.
The Board of Directors may from time to time, by vote of a majority of
its members, adopt, amend or repeal any and all of the by-laws of this
corporation except such by-laws as may have been adopted by the subscribers or
Shareholders of this corporation.
Section 2 - Shareholders.
The Shareholders may from time to time, by vote of a majority, adopt,
amend or repeal any and all of the by-laws of this corporation.
ARTICLE XI. OFFICERS AND DIRECTORS
LIABILITY AND INDEMNITY; TRANSACTIONS WITH CORPORATION
Section 1 - Definitions Applicable to Article XI.
(a) "Applicable Corporate Law" shall mean those statutes
comprising the general corporation law of the jurisdiction in which the
Corporation is incorporated, as amended from time to time.
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(b) "Breach of Duty" shall mean conduct of a Director or Officer
constituting any one or more of the following:
(1) A willful failure to deal fairly with the Corporation or its
stockholders in connection with a matter in which the Director or Officer has a
material conflict of interest.
(2) A violation of criminal law, unless the Director or Officer
had reasonable cause to believe his or her conduct was lawful or had no
reasonable cause to believe his or her conduct was unlawful.
(3) A transaction from which the Director or Officer derived an
improper personal profit.
(4) Willful misconduct.
(5) With respect to any matter or decision being considered by
the Board of Directors or any other officer, such Director or Officer
intentionally or recklessly;
(i) makes any untrue statement or disclosure to the Board
or other Officer of known material information; or
(ii) omits to state or otherwise disclose to the Board or
other Officer known material information necessary in order to make the
information known to have been communicated to the Board or other Officer not
misleading under the circumstances then existing; or
(iii) omits to state or otherwise disclose to the Board or
other Officer known material information which is (or reasonably should be)
known to the Director or Officer to be relevant to the matter or decision under
consideration, regardless of whether or not such information is specifically
requested by the Board or other Officer.
(c) "Claim" means any threatened or asserted claim or cause of
action involving actual or potential liability of a Director or Officer arising
from any act or omission of such person alleged or determined to have been
negligent, grossly negligent or intentionally tortious or to have violated any
state or federal securities laws (including any rule or regulation thereunder)
or the Employee Retirement Income Security Act of 1974 or any other foreign,
federal, state or local law, rule or regulation which is asserted or brought by
or in the right of the Corporation or by any governmental authority or any other
person or entity.
(d) "Director or Officer" means any of the following:
(1) A natural person who is or was: (i) a director (elected or
appointed by the stockholders or Board of Directors); or (ii) an officer
(elected or appointed by the Board of Directors) of the Corporation; or (iii) a
Trustee.
(2) A natural person who, while such a director or officer of
the Corporation, is or was serving either pursuant to the Corporation's specific
request or as a result of the nature of such person's duties to the Corporation
as a director, officer, partner, trustee, member of any governing or decision
making committee, employee or agent of another corporation or foreign
corporation, partnership, joint venture, trust or other enterprise.
(3) A natural person who, while such a director or officer of
the Corporation, is or was serving an employee benefit plan because his or her
duties to the Corporation also impose duties on, or otherwise involve services
by, the person to the plan or to participants in or beneficiaries of the plan.
(4) Unless the context requires otherwise, the estate or
personal representative of any such director, officer or Trustee.
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This term is not intended to include any person who holds a
position of title of Vice President or other apparent office without formal
election or appointment by the Board of Directors.
(e) "Disinterested Majority" shall mean a majority of the Board
of Directors of the Corporation who are not Parties to the subject Proceeding or
any related Proceeding.
(f) "Expenses" includes all reasonable fees, costs, charges,
disbursements, attorneys' fees and any other expenses incurred by a Director or
Officer in connection with a Proceeding if such person was a Party because he or
she is or was a Director or Officer.
(g) "Liability" includes the obligation to pay any sums or
perform any acts pursuant to a settlement, penalty, assessment, forfeiture,
fine, or judgment, including (without limitation) any excise tax assessed with
respect to any employee benefit plan, punitive damages, costs, and expenses.
(h) "Party" includes a natural person who was or is, or who is
threatened to be made, a named defendant or respondent to a Claim in a
Proceeding.
(i) "Proceeding" means any threatened, pending or completed
civil, criminal, administrative or investigative action, suit, arbitration or
other proceeding of any kind, whether formal or informal, in which a Claim is or
may be asserted against a Director or Officer or in which the Director or
Officer is a witness.
Section 2 - Director and Officer Liability Limitations.
(a) No Director or Officer shall be liable to the Corporation,
its shareholders or any person asserting rights on behalf of the Corporation or
its shareholders, for damages, settlements, 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 or Officer, regardless of whether
constituting negligence or other tortious or otherwise culpable conduct, unless
the person asserting liability proves that the breach or failure to perform
constitutes a Breach of Duty or conduct for which the Director is liable under
Section 180.0828 of the Wisconsin Business Corporation Law. In addition to and
not in limitation of the foregoing, no Director or Officer shall have any
liability for acts or omissions constituting business judgment within the
business judgment rule.
(b) The provisions of this Section 2 shall not be exclusive of
any other defenses such a Director or Officer may have with respect to any Claim
asserting a Liability.
(c) The Board of Directors (by majority vote or consent) may
grant similar limitations on the Liability of any employee of the Corporation
(relating to performance of his or duties as an employee) by written agreement
with such employee executed by the President.
Section 3 - Mandatory Indemnification.
(a) Indemnification for Expenses. The Corporation shall
indemnify a Director or Officer for all Expenses incurred (i) in the successful
defense of any Claim (on the merits or otherwise) in a Proceeding and/or (ii) as
a non-Party witness in any Proceeding.
(b) Indemnification for Liability and Expenses. The Corporation
shall indemnify a Director or Officer for all Liability and Expenses with
respect to any Claim against such person in a Proceeding to which such person
was a Party because he or she is or was a Director or Officer, unless such
Liability and Expenses were incurred because the Director or Officer is
determined to have engaged in conduct constituting a Breach of Duty.
(c) Indemnification Exclusion for Collateral Sources.
Notwithstanding the foregoing provision of this Section 3, indemnification shall
not be required for any Liability or Expenses to the extent the same have been
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paid or are covered under any collectible insurance policy or are otherwise paid
or reimbursed by any third party under a legal or contractual obligation to do
so.
(d) Reliance on Applicable Corporation Law or Bylaw. Without
intending to limit the generality of the indemnification rights provided under
subsections 3 (a) and (b) above, the Corporation shall indemnify a Director or
Officer for all Liability and Expenses with respect to any Claim against such
person in a Proceeding which is based, in whole or in part, on such person's
reliance on the validity of any provision of the Applicable Corporation Law or
these Bylaws, even though it is thereafter determined that such provision was
invalid or otherwise could not have justifiably been relied upon.
Section 4 - Procedural Requirements for Determination That
Indemnification is Proper.
(a) Written Request for Indemnification. A Director or Officer who
seeks indemnification shall make a written request therefor to the Corporation,
selecting a means for determining his or her right to indemnification as
provided under subsection 4 (b) hereof.
(b) Determination of Indemnification. Within 60 days of receipt by
the Corporation of the Director's or Officer's request for indemnification, a
determination shall be made as to whether or not the Director or Officer
requesting indemnification engaged in conduct constituting a Breach of Duty and,
as a result, is or is not entitled to indemnification under this Article. Such
determination shall be made:
(i) by majority vote of a Disinterested Majority if so
designated by the Director or Officer seeking indemnification. If a
Disinterested Majority cannot be obtained, the Director or Officer may designate
that such determination be made by a majority vote of a committee duly appointed
by the Board of Directors and consisting solely of two or more directors not at
the time Parties to the same or related Proceedings. Directors who are Parties
to the same or related Proceedings may participate in the designation of members
of the committee;
(ii) by independent legal counsel if so designated by the
Director or Officer; provided that such counsel shall be mutually selected by
such Director or Officer and by a Disinterested Majority or, if a Disinterested
Majority cannot be obtained, then by a majority vote of the Board of Directors,
including Directors who are Parties to the same or related Proceedings;
(iii) by a panel of three arbitrators if so designated by the
Director or Officer, which shall be selected from the panel of arbitrators of
the American Arbitration Association in Milwaukee, Wisconsin; provided, that
(xx) one arbitrator shall be selected by such Director or Officer, the second
arbitrator shall be selected by a Disinterested Majority or, if a Disinterested
Majority cannot be obtained, then by a majority vote of the Board of Directors,
including Directors who are Parties to the same or related Proceedings, and the
third arbitrator shall be selected by the two previously selected arbitrators,
and (yy) in all other respects, such panel shall be governed by the American
Arbitration Association's then existing Commercial Arbitration Rules, except the
fees of all arbitrators shall be shared equally by the Corporation and the
Director or Officer; or
(iv) by a court if so designated by the Director or Officer,
pursuant to and in accordance with the Applicable Corporation Law.
The results and basis of the determination made hereunder shall be
submitted in writing to the Corporation and the Director or Officer (the
"Indemnity Decision").
(c) No Presumption Created. 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 requested amount of Liabilities and Expenses of the Director or Officer
is not required.
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(d) Payment of Liabilities and Expenses; Waiver of Claims.
(1) If it is determined that indemnification is required
hereunder, the Corporation shall pay the Director or Officer the entire
requested amount of Liabilities and Expenses (net of any Expenses previously
advanced pursuant to Section 5), within 10 days of receipt of the Indemnity
Decision, provided, that if it is determined that a Director or Officer is
entitled to indemnification against Liabilities and Expenses incurred in
connection with some Claims, but not as to others (such as if Claims are
asserted to involve some conduct constituting a Breach of Duty and other conduct
which does not), payment of the Liability and Expenses shall be apportioned by
applying the following:
If the Director or Officer sustains Liability for equal dollar amounts
to a given party or person under two or more Claims arising from the
same general conduct, transaction or series of events (even though
divisible for purposes of establishing Liability), one of which would
require indemnification and the other of which would not, it shall be
conclusively presumed that the Liability and all Expenses related
thereto were sustained and incurred solely with respect to the Claim
for which indemnification is required; and if the Director or Officer
sustains Liability and Expenses for different dollar amounts to a
given party or person under two or more Claims arising from the same
general conduct, transaction or series of events (even though
divisible for purposes of establishing Liability), one of which would
require indemnification and the other of which would not, it shall be
conclusively presumed that the Liability for which indemnification is
required is the sole Liability up to the dollar amount thereof (the
"covered Liability") and the Liability for which indemnification is
not required (the "Non-Covered Liability") is reduced by the amount of
the Covered Liability (resulting in a "Net Non-Covered Liability") and
the Expenses shall be apportioned on the basis of the respective
amounts of the Covered Liability and the Net Non-Covered Liability
such that the Director or Officer shall be entitled to indemnification
for the Covered Liability and the apportioned Expenses attributable to
such Covered Liability. The foregoing shall apply regardless of
whether the Claim for the Non-Covered Liability and the resulting
Expenses in defense thereof occurs prior to or following assertion of
the Claim for the Covered Liability and regardless of the actual time,
effort and Expenses involved in defense of the respective Claims.
(2) The Corporation waives all right and claims against each
Director and Officer for indemnification which may otherwise exist or arise
under common law principles for Liabilities and/or Expenses incurred by the
Corporation as a result of the negligence or alleged negligence of the Director
or Officer, except in instances where such Liabilities and/or Expenses are
incurred as a result of activities by the Director or Officer constituting a
Breach of Duty.
(e) Binding Effect. An Indemnity Decision finding that
indemnification is required hereunder shall be binding upon the Corporation,
unless unsupported by any credible or resulting from a clearly erroneous
application of substantive law.
Section 5 - Advancement of Expenses.
(a) Procedure. Upon written request by a Director or Officer who is a
non-Party witness or a Party to a Proceeding, the Corporation shall pay or
reimburse from time to time prior to completion of such Proceeding his or her
Expenses as incurred within 10 days after receipt of such request accompanied
by: (i) an executed written certificate affirming the Director's or Officer's
good faith belief that (s)he has not breached or failed to perform his or her
duties to the Corporation by engaging in conduct constituting a Breach of Duty;
(ii) an executed written undertaking by the Director or Officer to repay any
advances made under this Section if it is ultimately determined that the
Director or Officer is not entitled to be indemnified by the Corporation; and
(iii) written evidence of the Expenses incurred.
(b) Ability to Repay; Undertaking to be Unsecured. The undertaking
provided in this Section shall be accepted by the Corporation without reference
to the Directors' or Officers' ability to repay the allowance. The undertaking
shall be unsecured and the Director or Officer shall not be required to pay
interest on such amounts prior to a final determination that repayment is
required.
INSURANCE PLANNERS, INC. AMENDED & RESTATED BYLAWS Page 13
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Section 6 - Right of Director or Officer to Bring Suit. If an
Indemnity Decision is not issued within the time specified or such Indemnity
Decision finds that the Director or Officer is not entitled to indemnification
or the Corporation fails to make prompt payment pursuant to an Indemnity
Decision, or a request for an advancement of Expenses under Section 5 is
refused, the Director or Officer may at any time thereafter bring suit against
the Corporation to recover the unpaid Liability and/or Expense. If successful in
whole or in part in any such suit, or in a suit brought by the Corporation to
recover an advancement or Expenses pursuant to the terms of an undertaking, the
Director or Officer shall be entitled to recover the expense of successfully
prosecuting or defending such suit. If the Director or Officer engaged in
conduct constituting a Breach of Duty, such fact: (i) shall be a defense to any
claim for indemnification against the Corporation (except for advancement of
Expenses prior to completion of a Proceeding); and (ii) shall entitle the
Corporation to recover all Expenses advanced prior to completion of the
Proceeding pursuant to the terms of the undertaking once such fact has been
established or admitted by the Director or Officer.
An Indemnity Decision finding that indemnification of the Director or
Officer is not required shall not be binding on the Director or Officer and
shall not create a presumption that the Director or Officer has engaged in
conduct constituting a Breach of Duty. In any suit brought by the Director or
Officer to enforce a right to indemnification or to an advancement of Expenses
hereunder or as otherwise provided in the Applicable Corporation Law, or by the
Corporation to recover an advancement of Expenses pursuant to the terms of an
undertaking, the burden of proving that the Director or Officer is not entitled
to be indemnified, or to such advancement of Expenses, under this Article or
otherwise shall be on the Corporation.
Section 7 - Permissible Considerations. A Director or Officer, in the
discharge of his or her duties to the Corporation and in making any decision or
performing any other act in such capacity, is not limited to considering only
the economic interests of shareholders in determining what is best for the
Corporation, but may also consider the following: (a) the effects of the action
on employees, suppliers and customers of the Corporation; (b) effects on the
community in which the Corporation operates; and (c) any other factors the
Director or Officer considers pertinent.
Section 8 - Reliance by Directors or Officers. A Director or Officer
(absent actual knowledge to the contrary) may rely in the discharge of his or
her duties to the Corporation 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 is reliable and competent as to the matters
presented or as to which the Director or Officer has no compelling reason to
believe is not reliable or competent; (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; and (c) information
presented to the Board of Directors by any person, officer, employee or
committee of the Board where it is believed in good faith the report merits
confidence or where the Director or Officer has no compelling reason to believe
it does not merit confidence.
Section 9 - Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a Director or Officer against
any Liability asserted against or incurred by the individual in any such
capacity or arising out of his status as such, regardless of whether the
Corporation is required or authorized to indemnify such person for Liability or
Expenses under this Article.
Section 10 - Severability and Intent. If any provision of this Article
shall be deemed invalid or inoperative, or if a court of competent jurisdiction
determines that any of the provisions of this Article contravene public policy,
this Article shall be construed so that the remaining provisions shall not be
affected, but shall remain in full force and effect, and any such provisions
which are invalid or inoperative or which contravene public policy shall be
deemed, without further action, by or on behalf of the Corporation, to be
modified, amended and/or limited, but only to the extent necessary to render the
same valid and enforceable; it being understood that it is the Corporation's
intention to provide the Directors and Officers with the broadest possible
protection against personal liability allowable under the Applicable Corporation
Law, and this Bylaw shall be liberally construed in order to fulfill this
intent, and in no event shall a Director's or Officer's
INSURANCE PLANNERS, INC. AMENDED & RESTATED BYLAWS Page 14
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reliance on any of the provisions of this Article which may be held to be
invalid, inoperative or in contravention of public policy render such conduct a
Breach of Duty.
Section 11 - Notice to the Corporation. A Director or Officer shall
promptly notify the Corporation in writing when he or she has actual knowledge
of a Proceeding which may result in a claim of indemnification against
Liabilities or allowance of Expenses hereunder, but the failure to do so shall
not relieve the Corporation of any liability to the Director or Officer
hereunder unless the Corporation shall have been irreparably prejudiced by such
failure.
Section 12 - Indemnification and Allowance of Expenses of Certain
Others.
(a) Employee of Authorized Agent. The Board of Directors may, in
its sole and absolute discretion, by majority vote or consent, indemnify against
Liabilities incurred by, and/or provide for the advance of reasonable Expenses
of, an employee or authorized agent of the Corporation acting within the scope
of his or her duties as such, even if such employee or agent is not a Director
or Officer.
(b) Indemnity Agreements. The Board of Directors, by majority vote
or consent, may authorize the Corporation to enter written indemnity agreements
with: (i) any Director or Officer of the Corporation, which may further expand
the indemnification rights provided under these Bylaws or the Applicable
Corporation Law; and (ii) any employee or agent of the Corporation, which may
extend to such person the same, greater or lesser rights of indemnification and
reliance as those afforded to Directors and Officers under this Article.
Section 13 - Amendment. This Article may only be altered, amended or
repealed by a vote of not less than two-thirds of the Corporation's outstanding
Class A common stock entitled to vote; provided, however, that the Board of
Directors may alter or amend this Article without such stockholder approval if
any such alteration or amendment is (a) made in order to conform to any
amendment or revision of the Applicable Corporation Law, which (i) expands or
permits the expansion of a Director's or Officer's right to indemnification
thereunder; (ii) limits or eliminates, or permits the limitation or elimination
of, the liability of a Director or Officer; or (iii) is otherwise beneficial to
the Directors and Officers or (b) an alteration or amendment which is otherwise
deemed by the Board of Directors to be an immaterial modification. No amendment
of this Article shall terminate, reduce or impair a Director's or Officer's
rights to indemnification for any act, occurrence or event taking place prior to
the effective date of such amendment and delivery of notice thereof to such
Director or Officer, regardless of when any Claim relating thereto is actually
asserted.
Section 14 - Nonexclusivity of Article XI. The rights of a Director or
Officer (or any other person) granted under this Article shall not be deemed
exclusive of any other rights to indemnification against Liabilities or
allowance of Expenses which the Director or Officer (or such other person) may
be entitled to under any written agreement, Board of Directors resolution, vote
of shareholders of the Corporation or under the Applicable Corporation Law or
otherwise. Nothing contained in this Article shall be deemed to limit the
Corporation's obligations to indemnify against Liabilities or allow expenses to
a Director or Officer under the Applicable Corporation Law.
Section 15 - Transactions with the Corporation. The Board of Directors
may from time to time authorize transactions by Officers, Directors and
employees with the Corporation, and may authorize lending money and granting
credit of the Corporation to or for the use of such Officers, Directors and
employees, providing that the Directors who vote for or assent to the making of
a loan to an Officer or Director of the Corporation shall be jointly and
severally liable to the Corporation for the amount of such loan until full
repayment thereof, unless such Directors shall sustain the burden of proof that
such loan was made for a proper business purpose.
Any contract or other transaction between the Corporation and one or
more of its Directors, or between the Corporation and any firm of which one or
more of its Directors are members or employees, or in which they are interested,
or between the Corporation and any corporation or association of which one or
more of its Directors are shareholders, members, directors, officers, or
employees, or in which they are interested, shall be valid for all purposes,
notwithstanding the presence of such Director(s) at the meeting of the Board of
Directors of the Corporation which acts upon, or in reference to, such contract
or transaction; and notwithstanding his or their participation in such action,
if the
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fact of such interest shall be disclosed or known to the Board of Directors and
the Board of Directors shall, nevertheless, authorize, approve or ratify such
contract or transaction by a vote of a majority of the Directors present, such
interested Director or Directors to be counted in determining whether a quorum
is present, but not to be counted in calculating the majority of such quorum
necessary to carry such vote. This Section shall not be construed to invalidate
any contract or other transaction which would otherwise be valid under the
common and statutory law applicable thereto.