EXHIBIT 3.22
RESTATED AND AMENDED BY-LAWS
OF
RINDT ENTERPRISES, INC.
(a Wisconsin corporation)
INTRODUCTION -
VARIABLE REFERENCES
0.01 Date of annual shareholders' meeting (See Section 2.01):
First Tuesday April
---------------- ------------- --------------
(Week) (Day) (Month)
*
0.02 Required notice of shareholders' meeting (See Section 2.04): not
less than 10 days.
*
0.03 Authorized number of directors (See Section 3.01): four (4).
*
0.04 Required notice of directors' meetings (See Section 3.05):
(a) Not less than 72 hours if by mail, and
*
(b) Not less than 24 hours if by telegram, cable, facsimile,
personal delivery, word of mouth, or telephone.
*
0.05 The fiscal year shall begin on the first day of January and end on
the last day of December each year (See. Section 8.02).
*
0.06 Action by written consent of shareholders may be taken by
unanimous written consent (See Section 2.12).
*These spaces are reserved for official notation of future amendments to these
sections.
ARTICLE I. OFFICES
1.02. Principal and Business Offices. The corporation may have such
principal and other business offices, either within or without the State of
Wisconsin, as the Board of Directors may designate or as the business of the
corporation may require from time to time.
1.03. Registered Office. The registered office of the corporation required
by the Wisconsin Business Corporation Law to be maintained in the State of
Wisconsin may, but need not, be the same as any of its places of business, and
the address of the registered office may be changed from time to time by the
Board of Directors. The business office of the registered agent of the
corporation shall be identical to such registered office.
ARTICLE II. SHAREHOLDERS
2.01. Annual Meeting. The annual meeting of the shareholders shall be held
in each year on the date set forth in Section 0.01, at the hour designated in
the written notice of said meeting given pursuant to Section 2.04, or at such
other time and date as may be fixed by or under the authority of the Board of
Directors, for the purpose 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, or fixed as herein provided, 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 convenient.
2.02. Special Meeting. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by statute, may be called by
either the President, the Board of Directors, the Chairman of the Board (if the
Board of Directors determines to elect one), or upon written notice to the
Secretary of the corporation by the holders of not less than one-tenth of all
shares of the corporation entitled to vote at the meeting.
2.03. 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 principal
business office of the corporation in the State of Wisconsin or such other
suitable place in the county of such principal office as may be designated by
the person calling such meeting, but any meeting may be adjourned to reconvene
at any place designated by vote of a majority of the shares represented thereat.
2.04. Notice of Meeting.
B-1
(a) Required notice. Written notice stating the place, day and hour
of the meeting and in case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less than the number of days
set forth in Section 0.02 (unless a longer period is required by law or the
articles of incorporation) nor more than sixty (60) days before the date of the
meeting, by or at the direction of the President, or the Secretary, or other
officer or persons calling the meeting, to each shareholder of record entitled
to vote at such meeting. Notice may be communicated in person, by telephone,
telegraph, teletype, facsimile or other form of wire or wireless communication,
or by mail or private carrier. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail, addressed to the shareholder
at his/her address as it appears on the stock record books of the corporation,
with postage thereon prepaid. If notice is delivered by electronic transmission,
notice is effective when such transmission is completed.
(b) Adjourned meeting. If an annual or special shareholders' meeting
is adjourned to a different time or place, notice of the new date, time or place
is not required if the new date, time or place is announced at the meeting
before adjournment. If a new record date for an adjourned meeting is or must be
fixed, notice of the adjourned meeting must be given to all persons who are
shareholders as of the new record date.
2.05. 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 may fix in advance a date as the record
date for any such determination of shareholders, such date, in the case of a
meeting of or other action to be taken by shareholders, to be not more than
seventy (70) days before said meeting or action. If 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,
transmitted, or communicated in person 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 is effective for
any adjournment thereof unless the Board of Directors fixes a new record date,
which it shall do if the meeting is adjourned to a date more than 120 days after
the date fixed for the original meeting.
2.06. Quorum. Except as otherwise provided by law or in the articles of
incorporation, a majority of the votes entitled to be cast on the matter by a
voting group constitutes a quorum of that voting group for action on that
matter. 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. Once a share is represented for any purpose at a meeting, it is
considered present for quorum purposes for the remainder of the meeting and for
any adjournment of that meeting unless a new record date is or must be set for
that adjourned meeting. If a quorum exists, action on a matter by a voting group
is approved if the votes cast within the voting group favoring the action exceed
the votes cast opposing the action unless a greater number of affirmative votes
is required by law or the articles of incorporation.
B-2
2.07. Conduct of Meetings. The Chairman of the Board, or in the event the
Board of Directors determines not to elect a Chairman of the Board, or in
his/her absence, the President, and in his/her absence, a Vice President in the
order provided under Section 4.08, and in their absence, any person chosen by
the shareholders present shall call the meeting of the shareholders to order and
shall act as chairman of the meeting, and the Secretary of the corporation shall
act as secretary of all meetings of the shareholders, but, in the absence of the
Secretary, the presiding officer may appoint any other person to act as
secretary of the meeting.
2.08. Proxies. At all meetings of shareholders, a shareholder entitled to
vote may vote by proxy appointed in writing by the shareholder or by his/her
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. The Board of Directors shall have the power and authority to make
rules establishing presumptions as to the validity and sufficiency of proxies.
2.09. Voting of Shares. Except as provided in the articles of
incorporation, these by-laws or by Wisconsin law, each outstanding share,
regardless of class, is entitled to one vote upon each matter voted on at a
shareholders meeting.
2.10. Voting of Shares by Certain Holders. The corporation in its
discretion may require such evidence as it deems advisable to verify proper
authority of any person to vote shares not registered of record in such person's
name.
(a) Other Entities. Shares standing in the name of another entity may
be voted either in person or by proxy, by an officer or agent of the entity.
(b) Legal Representatives or Fiduciaries. Shares held by a personal
representative, administrator, executor, guardian, or conservator, trustee in
bankruptcy, receiver, or assignee for creditors which shares are not standing in
the name of such fiduciary may be voted by him/her, either in person or by
proxy, without a transfer of such shares into his/her name.
(c) Pledgees. A shareholder whose votes are pledged shall be entitled
to vote such shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee shall be entitled to vote the shares so
transferred.
(d) Subsidiaries. No shares held by another corporation, if a
majority of the shares entitled to vote for the election of directors of such
other corporation is held directly or indirectly by this corporation, shall be
voted at any meeting or counted in determining the total number of outstanding
shares at any given time for purposes of any meeting. Provided, however, this
shall not limit the power of the corporation to vote any shares, including its
own shares, held by it in a fiduciary capacity.
(e) Minors. Shares held by a minor may be voted by such minor in
person or by proxy and no such vote shall be subject to disaffirmance or
avoidance, unless prior to such vote the Secretary of the corporation has
received written notice or has actual knowledge that such shareholder is a
minor.
B-3
(f) Incompetents and Spendthrifts. Shares held by an incompetent or
spendthrift may be voted by such incompetent or spendthrift in person or by
proxy and no such vote shall be subject to disaffirmance or avoidance, unless
prior to such vote the Secretary of the corporation has actual knowledge that
such shareholder has been adjudicated an incompetent or spendthrift or actual
knowledge of filing of judicial proceedings for appointment of a guardian.
(g) Cotenants or Fiduciaries. Shares registered in the name of two or
more individuals who are named in the registration as cotenants or fiduciaries
may be voted in person or by proxy signed by any one or more of such individuals
if the person signing appears to be acting on behalf of all coowners.
2.11. Waiver of Notice by Shareholders. Whenever any notice whatever is
required to be given to any shareholder of the corporation under the articles of
incorporation or by-laws or any provision of law, a waiver thereof in writing,
signed at any time, whether before or after the time of meeting, by the
shareholder entitled to such notice; shall be deemed equivalent to the giving of
such notice; provided that such waiver in respect to any matter of which notice
is required under any provision of the Wisconsin Business Corporation Law, shall
contain the same information as would have been required to be included in such
notice, except the time and place of meeting.
2.12. Action Without Meeting.
(a) Any action required or permitted to be taken at a shareholders'
meeting may be taken without a meeting and without action by the Board of
Directors, by all shareholders entitled to vote on the action.
(b) Action under Section 2.12(a) must be evidenced by one or more
written consents describing the action taken, signed by the shareholders and
delivered. to the Secretary of the corporation for inclusion in the corporate
records.
(c) Action taken under Section 2.12(a) is effective when consents
representing all shares entitled to vote on the action are delivered to the
Secretary of the corporation, unless the consent specifies a different effective
date.
(d) If not otherwise fixed under Section 2.05 of these by-laws, the
record date for determining shareholders entitled to take action without a
meeting is the date that the first shareholder signs the consent under this
Section 2.12(a).
(e) A consent signed under this section has the effect of a meeting
vote and may be described as such in any document.
2.13. Financial Statements for Shareholders. Within 120 days after the
close of each fiscal year, the corporation shall prepare annual financial
statements, which may be consolidated or combined statements of the corporation
and one or more of its subsidiaries, as appropriate, that include a balance
sheet as of the end of the fiscal year, an income statement for that year, and a
statement of changes in shareholders' equity for the year unless that
information appears elsewhere in the financial statements. If financial
statements are prepared for the corporation on the basis of generally accepted
accounting principles, the annual financial statements must also
B-4
be prepared on that basis. On written request from any shareholder, the
corporation shall mail him/her the latest financial statements.
ARTICLE III. BOARD OF DIRECTORS
3.01. General Powers and Number. All corporate powers shall be exercised
by or under the authority of, and the business and affairs of the corporation
shall be managed by, its Board of Directors. The number of directors of the
corporation shall be as set forth in Section 0.03.
3.02. Tenure and Qualifications. Each director shall hold office until
the next annual meeting of shareholders and until his/her successor shall have
been elected, or until his/her prior death, resignation or removal. A director
may be removed from office if the number of votes cast to remove the director
exceeds the number of votes cast not to remove him/her (unless a greater voting
requirement is provided by the articles of incorporation) taken at a meeting of
shareholders called for that purpose. A director may resign at any time by
delivering his/her written resignation to the Board of Directors or to the
corporation. Directors need not be residents of the State of Wisconsin or
shareholders of the corporation.
3.03. 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.
3.04. Special Meetings. Special meetings of the Board of Directors may
be called by or at the request of the Chairman of the Board (if the Board of
Directors determines to elect one), the President, Secretary or any two
directors. The Chairman of the Board, President or Secretary calling any special
meeting 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.
3.05. Notice; Waiver. Notice of each meeting of the Board of Directors
(unless otherwise provided in or pursuant to Section 3.03) shall be given to
each director (i) by written notice delivered personally or mailed or given by
facsimile, telegram, cable or radiogram to such director at his/her business
address or at such other address as such director shall have designated in
writing filed with the Secretary, or (ii) by word of mouth, telephone or
radiophone personally to such director, in each case not less than that number
of hours prior thereto as set forth in Section 0.04. Written notice is effective
at the earliest of the following: (a) when received or, if notice is delivered
by electronic transmission, when such transmission is completed; (b) two days
after its deposit in the U.S. mail, if mailed postpaid and correctly addressed;
(c) on the date shown on the return receipt if sent by registered or certified
mail, return receipt requested, and the receipt is signed by or on behalf of the
addressee. Oral notice is effective when communicated. The notice need not
describe the purpose of the meeting unless required by the articles of
incorporation.
A director may waive any notice required by the Wisconsin Business
Corporation Law, the articles of incorporation or by-laws before or after the
date and time stated in the notice.
B-5
Except as provided in the next sentence, the waiver shall be in writing, signed
by the director entitled to the notice and retained by the corporation. A
director's attendance at or participation in a meeting waives any required
notice to him/her of the meeting unless the director at the beginning of the
meeting or promptly upon his/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.
3.06. Quorum. Except as otherwise provided by law or by the articles of
incorporation or these by-laws, a majority of the number of directors set forth
in Section 0.03 shall constitute a quorum for the transaction of business at any
meeting of the Board of Directors, but a majority of the directors present
(though less than such quorum) may adjourn the meeting from time to time without
further notice.
3.07. Manner of Acting. The act of the majority of the directors present
at a meeting at which a quorum is present shall be the act of the Board of
Directors, unless the act of a greater number is required by law or by the
articles of incorporation or these by-laws. Unless the articles of incorporation
provide otherwise, any or all directors may participate in a regular or special
meeting by, or conduct the meeting through the use of, any means of
communication by which all directors participating may simultaneously hear each
other during the meeting. A director participating in a meeting by this means is
deemed to be present in person at the meeting. A director who is present at a
meeting of the Board of Directors or a committee of the Board of Directors when
corporate action is taken is deemed to have assented to the action taken unless:
(1) he/she objects at the beginning of the meeting (or promptly upon his/her
arrival) to holding it or transacting business at the meeting; or (2) his/her
dissent or abstention from the action taken is entered in the minutes of the
meeting; or (3) he/she delivers written notice of his/her dissent or abstention
to the presiding officer of the meeting before its adjournment or to the
corporation immediately after adjournment of the meeting. The right of dissent
or abstention is not available to a director who votes in favor of the action
taken.
3.08. Conduct of Meeting. The Chairman of the Board, or in the event the
Board of Directors determines not to elect a Chairman of the Board, or in
his/her absence, the President, and in his/her absence, a Vice President in the
order provided under Section 4.08, and in their absence, any director chosen by
the directors present, shall call meetings of the Board of Directors to order
and shall act as Chairman of the meeting. The Secretary of the corporation shall
act as secretary of all meetings of the Board of Directors, but in the absence
of the Secretary, the presiding officer may appoint any Assistant Secretary or
any director or other person present to act as secretary of the meeting.
3.09. Vacancies. Unless the articles of incorporation provide otherwise,
if a vacancy occurs on the Board of Directors, including a vacancy resulting
from an increase in the number of directors, the vacancy may be filled by either
the shareholders; the Board of Directors; or if the directors remaining in
office constitute fewer than a quorum of the board, the directors, by the
affirmative vote of a majority of all directors remaining in office. If the
vacant office was held by a director elected by a voting group of shareholders,
only the holders of shares of the 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.
A vacancy that will occur at a specific later date, (because of a resignation
effective at
B-6
a later date) may be filled before the vacancy occurs, but the new director may
not take office until the vacancy occurs.
3.10. Compensation. Unless otherwise provided in the articles of
incorporation, the Board of Directors, irrespective of any personal interest of
any of its members, may fix the compensation of directors in their capacities as
such.
3.11. Committees. Unless the articles of incorporation provide
otherwise, the Board of Directors may create one or more committees and appoint
members of the Board of Directors to serve on them. The creation of a committee,
delegation of authority to a committee, or action by a committee does not
relieve the Board of Directors or any of its members of any responsibility
imposed upon the Board of Directors or its members by law. Each committee must
have two or more members, who serve at the pleasure of the Board of Directors.
The creation of a committee and appointment of members to it must be approved by
the greater of (1) a majority of all the directors in office when the action is
taken or (2) the number of directors required by the articles of incorporation
or by-laws to take such action. Sections 3.03-3.05 and 3.12 of these by-laws
which govern meetings, action without meetings, notice and waiver of notice,
apply to committees and their members. To the extent specified by the Board of
Directors or in the articles of incorporation or by-laws, each committee may
exercise the authority of the Board of Directors, except that a committee may
not:
(1) authorize distributions;
(2) approve or propose to shareholders action that the Wisconsin
Business Corporation Law requires be approved by shareholders;
(3) fill vacancies on the Board of Directors or on any of its
committees;
(4) amend the articles of incorporation under Section 180.1002 of the
Wisconsin Business Corporation Law;
(5) adopt, amend, or repeal by-laws;
(6) approve a plan of merger not requiring shareholder approval;
(7) authorize or approve reacquisition of shares, except according to
a formula or method prescribed by the Board of Directors; or
(8) authorize or approve the issuance or sale or contract for sale of
shares or determine the designation and relative rights,
preferences, and limitations of a class or series of shares,
except that the Board of Directors may authorize a committee (or a
senior executive officer of the corporation) to do so within
limits prescribed by the Board of Directors.
3.12. Action Without Meeting. Any action required or permitted by the
articles of incorporation or by-laws or any provision of law to be taken at a
Board of Directors' or committee meeting may be taken without a meeting if a
consent in writing, setting forth the
B-7
action so taken, shall be signed by all of the directors or members of such
committee entitled to vote with respect to such action.
ARTICLE IV. OFFICERS
4.01. In General. The principal officers of the corporation may include a
Chairman of the Board (if the Board of Directors determines to appoint one); a
President, one or more Vice Presidents, a Secretary, and a Treasurer, each of
whom shall be appointed by the Board of Directors. Such other officers and
assistant officers as may be deemed necessary may be appointed by the Board of
Directors. Any two or more offices may be held by the same person. The duties of
the 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 shall order.
4.02. Appointment and Term of Office. The officers of the corporation
shall be appointed by the Board of Directors for a term as determined by the
Board of Directors. If no term is specified, each officer shall hold office
until his/her death, resignation or removal. Appointment of an officer does not
of itself create contract rights.
4.03. Removal. Any officer may be removed by the Board of Directors at
any time, with or without cause.
4.04. Vacancies. A vacancy in any principal office because of death,
resignation, removal, disqualification or otherwise, shall be filled by the
Board of Directors.
4.05. Chairman of the Board. The Chairman of the Board (if the Board of
Directors determines to appoint one) shall preside at all meetings of the
shareholders and the Board of Directors and shall have such further and other
authority, responsibility and duties as may be granted to or imposed upon
him/her by the Board of Directors, including without limitation designation
pursuant to Section 4.07 as chief executive officer of the corporation.
4.06. President. The President, unless the Board of Directors shall
otherwise order pursuant to Section 4.07, shall be the chief 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/she shall, when present, preside at all meetings of the
shareholders and Board of Directors unless the Board of Directors shall have
elected a Chairman of the Board of Directors. He/she shall have authority,
subject to such rules as may be prescribed by the Board of Directors, to appoint
such agents and employees of the corporation as he/she shall deem necessary, to
prescribe their powers, duties and compensation, and to delegate authority to
them. Such agents and employees shall hold office at the discretion of the
President. He/she shall have authority to sign, execute and acknowledge, on
behalf of the corporation, all deeds, mortgages, bonds, stock certificates,
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 resolution of the Board of Directors; and except as
otherwise provided by law or the Board of Directors, he/she may authorize any
Vice President or other officer or agent of the corporation to sign, execute and
acknowledge such documents or instruments in his/her
B-8
place and stead. In general he/she shall perform all duties incident to the
office of the chief executive officer and such other duties as may be prescribed
by the Board of Directors from time to time. In the event the Board of Directors
determines not to appoint a Chairman of the Board or in the event of his/her
absence or disability, the President shall perform the duties of the Chairman of
the Board and when so acting shall have all the powers of and be subject to all
of the duties and restrictions imposed upon the Chairman of the Board.
4.07. Chairman of the Board as Chief Executive Officer. The Board of
Directors may designate the Chairman of the Board as the chief executive officer
of the corporation. In such event, the Chairman of the Board shall assume all
authority, power, duties and responsibilities otherwise appointed to the
President pursuant to Section 4.06, and all references to the President in these
by-laws shall be regarded as references to the Chairman of the Board as such
chief executive officer, except where a contrary meaning is clearly required.
In further consequence of designating the Chairman of the Board as the
chief executive officer, the President shall thereby become the chief
administrative officer of the corporation He/she shall, in the absence of the
Chairman of the Board, preside at all meetings of stockholders and directors.
During the absence or disability of the Chairman of the Board he/she shall
exercise the functions of the chief executive officer of the corporation. He/she
shall have authority to sign all 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 such other duties as are incident to his/her
office or are properly required of him/her by the Board of Directors or the
Chairman of the Board. He/she shall have the authority, subject to such rules,
directions, or orders, as may be prescribed by the Chairman of the Board or the
Board of Directors, to appoint and terminate the appointment of such agents and
employees of the corporation as he/she shall deem necessary, to prescribe their
power, duties and compensation and to delegate authority to them.
4.08. The Vice Presidents. In the absence of the President or in the
event of his/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 Vice
President (if any appointed), or if more than one, the Vice Presidents in the
order designated at the time of their election, or in the absence of any such
designation, then in the order of their appointment, 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/her
by the President or the Board of Directors.
4.09. The Secretary. The Secretary shall: (a) keep the minutes of the
meetings of the shareholders and of the Board of Directors 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, if any, and see that
the seal of the corporation, if any, is affixed to all documents the execution
of which on behalf of the corporation under its seal is duly authorized; (d)
keep or arrange for the keeping of 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 shares shall have been authorized by
resolution
B-9
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 have such other duties and exercise such authority as from time
to time may be delegated or assigned to him/her by the President or by the Board
of Directors.
4.10. The Treasurer. The Treasurer shall: (a) have charge and custody and
be responsible for all funds and securities of the corporation; (b) 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 5.04; and (c) in general perform all of the
duties incident to the office of Treasurer and have such other duties and
exercise such other authority as shall from time to time be delegated or
assigned to him/her by the President or by the Board of Directors. If required
by the Board of Directors, the Treasurer shall give a bond for the faithful
discharge of his/her duties in such sum and with such surety or sureties as the
Board of Directors shall determine.
4.11. Assistant Secretaries and Assistant Treasurers. There shall be such
number of Assistant Secretaries and Assistant Treasurers as the Board of
Directors may from time to time authorize. The Assistant Secretaries 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 and have such authority as shall from time to time be delegated or
assigned to them by the Secretary or the Treasurer, respectively, or by the
President or the Board of Directors.
4.12. Other Assistants and Acting Officers. The Board of Directors shall
have the power to appoint any person to act as assistant to any officer, or as
agent for the corporation in his/her stead, or to perform the duties of such
officer whenever for any reason it is impracticable for such officer to act
personally, and such assistant or acting officer or other agent so appointed by
the Board of Directors shall have the power to perform all the duties of the
office to which he/she is so appointed to be assistant, or as to which he/she is
so appointed to act, except as such power may be otherwise defined or restricted
by the Board of Directors.
ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS;
SPECIAL CORPORATE ACTS
5.01. Contracts. The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute or deliver any
instrument in the name of and on behalf of the corporation, and such
authorization may be general or confined to specific instances. In the absence
of other designation, all deeds, mortgages and instruments of assignment or
pledge made by the corporation shall be executed in the name of the corporation
by the President or one of the Vice Presidents; the Secretary or an Assistant
Secretary, when necessary or required, shall affix the corporate seal, if any,
thereto; and when so executed no other party to such instrument or any third
party shall be required to make any inquiry into the authority of the signing
officer or officers.
B-10
5.02. Loans. No indebtedness for borrowed money shall be contracted on
behalf of the corporation and no evidences of such 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.
5.03. 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 a
resolution of the Board of Directors.
5.04. 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 a resolution of the Board of Directors.
5.05. Voting of Securities Owned by This Corporation. Subject always to
the specific directions of the Board of Directors, (a) any shares or other
securities issued by any other corporation and owned or controlled by this
corporation may be voted at any meeting of security holders of such other
corporation by the President of this corporation if he/she be present, or in
his/her absence by any Vice President of this corporation who may be present,
and (b) whenever, in the judgment of the President, or in his/her absence, of
any Vice President, it is desirable for this corporation to execute a proxy or
written consent with respect to any shares or other securities issued by any
other corporation and owned by this corporation, such proxy or consent shall be
executed in the name of this corporation by the President or one of the Vice
Presidents of this corporation, without necessity of any authorization by the
Board of Directors, affixation of corporate seal or countersignature or
attestation by another officer. Any person or persons designated in the manner
above stated as the proxy or proxies of this corporation shall have full right,
power and authority to vote the shares or other securities issued by such other
corporation and owned by this corporation the same as such shares or other
securities might be voted by this corporation.
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.01. Certificate for Shares. Certificates representing shares of the
corporation shall be in such form, consistent with law, as shall be determined
by the Board of Directors. Such certificates shall be signed by the President or
a Vice President and by the Secretary or an Assistant Secretary either manually
or in facsimile; and may be sealed with a corporate seal or facsimile thereof
provided, however, that all certificates shall have at least one manual
signature of either an officer or the transfer agent. All certificates for
shares shall be consecutively numbered or otherwise identified. The face or
reverse side of each certificate representing shares shall bear a conspicuous
notation of any restriction imposed by the corporation upon transfer of such
shares. 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
B-11
certificate a new one may be issued therefor upon such terms and indemnity to
the corporation as the Board of Directors may prescribe.
6.02. Signature by Former Officers. In case any officer, who has signed
or whose facsimile signature has been placed upon any certificate for shares,
shall have ceased to be such officer before such certificate is issued, it may
be issued by the corporation with the same effect as if he/she were such officer
at the date of its issue.
6.03. Transfer of Shares. Prior to due presentment of a certificate for
shares for registration of transfer the corporation may treat the registered
owner of such shares as the person exclusively entitled to vote, to receive
notifications and otherwise to exercise all the rights and power of an owner.
Where a certificate for shares is presented to the corporation with a request to
register for transfer, the corporation shall not be liable to the owner or any
other person suffering loss as a result of such registration of transfer if (a)
there were on or with the certificate the necessary endorsements, and (b) the
corporation had no duty to inquire into adverse claims or has discharged any
such duty. The corporation may require reasonable assurance that said
endorsements are genuine and effective and in compliance with such other
regulations as may be prescribed under the authority of the Board of Directors.
6.04. Restrictions on Transfer. If this corporation should elect to be
treated as a small business corporation under Section 1362 of the Internal
Revenue Code of 1986, as amended, then any transfer of stock, the effect of
which would cause such election to be terminated, is prohibited and any such
purported transfer is null and void. This by-law may only be altered, repealed,
or revoked by a majority vote of the shareholders.
6.05. Consideration for Shares. The shares of the corporation may be
issued for such consideration as shall be fixed from time to time by the Board
of Directors, provided that any shares having a par value shall not be issued
for a consideration less than the par value thereof. 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. The Board of Directors may place in escrow
shares issued for a contract for future services or benefits or a promissory
note, or make other arrangements to restrict the transfer of such shares, and
may credit distributions in respect of such shares against their purchase price,
until the services are performed, the benefits are received or the note is paid.
If the services are not performed, the benefits are not received or the note is
not paid, the Board of Directors may cancel, in whole or in part, the shares
escrowed or restricted and the distributions credited.
6.06. 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 it 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.
B-12
ARTICLE VII. OFFICERS AND DIRECTORS: LIABILITY AND
INDEMNITY; TRANSACTIONS WITH CORPORATION
7.01. Liability of Directors. Except as otherwise provided by law, no
director shall be 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/her status
as a director, unless the person asserting liability proves that the breach or
failure to perform constitutes (a) a willful failure to deal fairly with the
corporation or its shareholders in connection with the 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/her conduct was lawful
or no reasonable cause to believe his/her conduct was unlawful, (c) a
transaction from which the director derived an improper personal profit, or (d)
willful misconduct.
7.02. Indemnity of Directors and Officers. The corporation shall
indemnify a director or officer, to the extent he/she has been successful on the
merits or otherwise in the defense of any threatened, pending or completed
civil, criminal, administrative or investigative action, suit, arbitration or
other proceeding, whether formal or informal, which involves foreign, federal,
state or local law and which is brought by or in the right of the corporation or
by any other person, for all reasonable expenses, including fees, costs,
charges, disbursements and attorney fees, incurred in the proceeding, provided
the director or officer was a party because he/she is a director or officer of
the corporation, and in all other cases, the corporation shall indemnify a
director or officer against liability, including judgments, settlements,
penalties, assessment, forfeitures, fines and reasonable expenses, incurred by
the director or officer in the proceeding, provided the director or officer was
a party because he/she is a director or officer of the corporation, unless the
liability was incurred because the director or officer breached or failed to
perform a duty he/she owes to the corporation and the breach or failure to
perform constitutes (a) a willful failure to deal fairly with the corporation or
its shareholders in connection with the matter in which the director or officer
has a material conflict of interest, (b) a violation of criminal law, unless the
director or officer had reasonable cause to believe his/her conduct was lawful
or no reasonable cause to believe his/her conduct was unlawful, (c) a
transaction from which the director or officer derived an improper personal
profit, or (d) willful misconduct.
The termination of a proceeding by judgment, order, settlement or
conviction, or upon a plea of no contest or an equivalent plea, shall not, by
itself, create a presumption that indemnification of the director or officer is
not required under this by-law. No indemnification is required under this by-law
to the extent the officer or director has previously received indemnification or
allowance of expenses from any person, including the corporation, in connection
with the same proceeding. Determination of whether indemnification is required
under this by-law shall be made by the means provided pursuant to Section
180.0855 of the Wisconsin Business Corporation Law. A director or officer who
seeks indemnification under this by-law shall make a written request to the
corporation.
The corporation, by its Board of Directors, may indemnify in a like
manner, or with any limitations, any employee or agent of the corporation who is
not a director or officer with respect to any action taken or not taken in his
capacity as such employee or agent. The corporation shall indemnify an employee
who is not a director or officer of the corporation, to the extent he/she
B-13
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/she was an employee of the corporation.
The foregoing rights of indemnification shall be in addition to all
rights to which directors, officers, employees or agents may be entitled as a
matter of law by resolution of the Board of Directors, or by written agreement
with the corporation. All terms used in this Section 7.02 for which a definition
is provided in Section 180.0850 of the Wisconsin Business Corporation Law and
not otherwise herein defined shall have the meaning set forth in said statute.
7.03. Maintenance of Insurance. The corporation may, by its Board of
Directors, purchase and maintain insurance on behalf of any person who is a
director, officer, employee or agent of the corporation against liability
asserted against and incurred by the person in his/her capacity as a director,
officer, employee or agent, or arising from his/her status as a director,
officer, employee or agent, regardless of whether the corporation is required or
authorized to indemnify the person against the same liability.
7.04. Director Conflict of Interest. (a) In this section, "conflict of
interest transaction" means a transaction with the corporation in which a
director of the corporation has a direct or indirect interest.
(b) A conflict of interest transaction is not voidable by the
corporation solely because of the director's interest in the transaction if any
of the following is true: (1) the material facts of the transaction and the
director's interest were disclosed or known to the Board of Directors or a
committee of the Board of Directors and the Board of Directors or committee
authorized, approved or specifically ratified the transaction under Section
7.04(d), (2) the material facts of the transaction and the director's interest
were disclosed or known to the shareholders entitled to vote and they
authorized, approved or specifically ratified the transaction under Section
7.04(e), or (3) the transaction was fair to the corporation.
(c) For purposes of this section, the circumstances in which a
director of the corporation has an indirect interest in a transaction include
but are not limited to a transaction under any of the following circumstances:
(1) another entity in which the director has a material financial interest or in
which the director is a general partner is a party to the transaction or (2)
another entity of which the director is a director, officer or trustee is a
party to the transaction and the transaction is or, because of its significance
to the corporation, should be considered by the Board of Directors of the
corporation.
(d) For purposes of Section 7.04(b)(1), a conflict of interest
transaction is authorized, approved or specifically ratified if it receives the
affirmative vote of a majority of the directors on the Board of Directors or on
the committee acting on the transaction, who have no direct or indirect interest
in the transaction. If a majority of the directors who have no direct or
indirect interest in the transaction vote to authorize, approve or ratify the
transaction, a quorum is present for the purpose of taking action under this
section. The presence of, or a vote cast by, a director with a direct or
indirect interest in the transaction does not affect the validity of any
B-14
action taken under Section 7.04(b)(1) if the transaction is otherwise
authorized, approved or ratified as provided in this section.
(e) For purposes of Section 7.04(b)(2), a conflict of interest
transaction is authorized, approved or specifically ratified if it receives the
vote of a majority of the shares entitled to be counted under this subsection.
Shares owned by or voted under the control of a director who has a direct or
indirect interest in the transaction, and shares owned by or voted under the
control of an entity described in Section 7.04(c)(1), may not be counted in a
vote of shareholders to determine whether to authorize, approve or ratify a
conflict of interest transaction under Section 7.04(b)(2). The vote of those
shares shall be counted in determining whether the transaction is approved under
other sections of these by-laws. A majority of the shares, whether or not
present, that are entitled to be counted in a vote on the transaction under this
subsection constitutes a quorum for the purpose of taking action under this
section.
7.05. Loans to Directors. The corporation may not lend money to or
guarantee the obligation of a director of the corporation unless (1) the
particular loan or guarantee is approved by a majority of the votes represented
by the outstanding voting shares of all classes, voting as a single voting
group, except the votes of shares owned by or voted under the control of the
benefited director, or (2) the corporation's Board of Directors determines that
the loan or guarantee benefits the corporation and either approves the specific
loan or guarantee or a general plan authorizing loans and guarantees. The fact
that a loan or guarantee is made in violation of this section does not affect
the borrower's liability on the loan. This section does not apply to an advance
to a director that is permitted under Section 7.02 of these by-laws or that is
made to defray expenses incurred by the director in the ordinary course of the
corporation's business.
ARTICLE VIII. GENERAL
8.01. Seal. The Board of Directors may provide for a corporate seal;
which may be circular in form and have inscribed thereon any designation
including the name of the corporation and the words "Corporate Seal, Wisconsin".
8.02. Fiscal Year. The fiscal year of the corporation shall be as
provided in Section 0.05.
ARTICLE IX. AMENDMENTS
9.01. By Shareholders. These by-laws may be altered, amended or repealed
and new by-laws may be adopted by the shareholders by
affirmative vote as set forth in Section 2.06 of these by-laws.
9.02. By Directors. These by-laws may also be altered, amended or
repealed and new. by-laws may be adopted by the Board of Directors by
affirmative vote of a majority of the number of directors present at any meeting
at which a quorum is in attendance; however, no by-law adopted by the
shareholders shall be amended or repealed by the Board of Directors if the
by-law so adopted so provides.
B-15
9.03. Implied Amendments. Any action taken or authorized by the
shareholders or by the Board of Directors, which would be inconsistent with the
by-laws then in effect but is taken or authorized by affirmative vote of not
less than the number of shares or the number of directors required to amend the
by-laws so that the by-laws would be consistent with such action, shall be given
the same effect as though the by-laws had been temporarily amended or suspended
so far, but only so far, as is necessary to permit the specific action so taken
or authorized.
B-16