EXHIBIT 3.26
AMENDED AND RESTATED
BY-LAWS OF
SCOT LAD FOODS, INC.
(a Wisconsin Corporation)
INTRODUCTION -
VARIABLE REFERENCES
Date of Adoption of these By-Laws:
Date of Incorporation:
0.01. Date of annual shareholders' meeting (see Section 2.01):
Second Wednesday April 1985 10:00 AM
--------- ------------- ---------- ------------ -----------
(Week) (Day) (Month) (First Year) (Hour)
*
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): two (2).
*
0.04. Required notice of directors' meetings (see Section 3.05):
(a) Not less than 24 hours if by mail, and
*
(b) Not less than 24 hours if by telegram, cable or radiogram,
personal delivery, or word of mouth, telephone or
radiophone.
*
0.05. The fiscal year of the Corporation shall be on a 52-53 week
basis ending on the Saturday nearest to December 31st as that method permits.
*
*These spaces are reserved for official notation of future amendments to these
sections.
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ARTICLE I - OFFICES
1.01. Principal and Business Offices. The Corporation may have such
principal and other business offices, either within or without the State of
Wisconsin, as the Board of Directors may designate or as the business of the
Corporation may require from time to time.
1.02. Registered Office. The registered office of the Corporation
required by the Wisconsin Business Corporation Law to be maintained in the State
of Wisconsin may be, but need not be, identical 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. 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 within thirty days before or after said 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 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. 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 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 other 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.
2.05. 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
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shareholders entitled to receive payment of any dividend, or in order to make a
determination of shareholders for any other proper purpose, the Board of
Directors may provide that the stock transfer books shall be closed for a stated
period but not to exceed, in any case, 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 books are
not closed and no record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, or shareholders
entitled to receive payment of a dividend, the close of business on the date on
which notice of the meeting is mailed or on the date on which the resolution of
the Board of Directors declaring such dividend is adopted, as the case may be,
shall be the record date for such determination of shareholders. When a
determination of shareholders entitled to vote at any meeting of shareholders
has been made as provided in this section, such determination shall be applied
to any adjournment thereof except where the determination has been made through
the closing of the stock transfer books and the stated period of closing has
expired.
2.06. Voting Lists. The officer or agent having charge of the stock
transfer books for shares of the Corporation shall, before each meeting of
shareholders, make a complete list of the shareholders entitled to vote at such
meeting, or any adjournment thereof, with the address of and the number of
shares held by each, which list shall be produced and kept open at the time and
place of the meeting and shall be subject to the inspection of any shareholders
during the whole time of the meeting for the purposes of the meeting. The
original stock transfer books shall be prima facie evidence as to who are the
shareholders entitled to examine such 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.
2.07. Quorum. Except as otherwise provided in the articles of
incorporation, a majority of the shares entitled to vote, represented in person
or by proxy, shall constitute a quorum at a meeting of shareholders but in no
event shall a quorum consist of less than one-third of the shares entitled to
vote at the meeting. If a quorum is present, the affirmative vote of the
majority of the shares represented at the meeting and entitled to vote on the
subject matter shall be the act of the shareholders unless the vote of a greater
number or voting by classes is required by law or the articles of incorporation.
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 noticed.
2.08. Conduct of Meetings. Except to the extent the Board of Directors
may otherwise provide, the President, and in his 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.
2.09. Proxies. At all meetings of shareholders, a shareholder entitled
to vote may vote by proxy appointed in writing by 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. The Board of Directors shall have the power and authority to make rules
establishing presumptions as to the validity and sufficiency of proxies.
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2.10. Voting of Shares. Each outstanding share, regardless of class,
shall be entitled to one vote upon each matter submitted to a vote at a meeting
of shareholders, except to the extent that the voting rights of the shares of
any class or classes are enlarged, limited or denied by the articles of
incorporation.
2.11. Voting of Shares by Certain Holders.
(a) Other Corporations. Shares standing in the name of another
corporation may be voted either in person or by proxy, by the president of such
corporation or 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 by the by-laws of such other corporation.
(b) Legal Representatives or Fiduciaries. Shares held by an
administrator, executor, guardian, 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, either in person or by proxy, without a transfer
of such shares into his name provided that there is filed with the Secretary
before or at the time of meeting proper evidence of his incumbency and the
number of shares held. Shares standing in the name of a fiduciary may be voted
by him, either in person or by proxy. A proxy executed by a fiduciary shall be
conclusive evidence of the signer's authority to execute such proxy, in the
absence of express notice to this Corporation, given in writing to the Secretary
of this Corporation, that such manner of voting is expressly prohibited or
otherwise directed by the document creating the fiduciary relationship.
(c) Pledgees. A shareholder whose shares are pledged shall be
entitled to vote such shares until the shares have been transferred into the
name of the pledgee, and thereafter the pledgee shall be entitled to vote the
shares so transferred.
(d) Treasury Stock and Subsidiaries. Neither treasury shares,
nor shares held by another corporation if a majority of the shares entitled to
vote for the election of directors of such other corporation is held by this
Corporation, shall be voted at any meeting or counted in determining the total
number of outstanding shares entitled to vote, but shares of its own issue held
by this Corporation in a fiduciary capacity may be voted and shall be counted in
determining the total number of outstanding shares entitled to vote.
(e) Minors. Shares held by a minor may be voted by such minor
in person or by proxy and no such vote shall be subject to disaffirmance or
avoidance, unless prior to such vote the Secretary of the Corporation has
received written notice or has actual knowledge that such shareholder is a
minor.
(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) Joint Tenants. Shares registered in the name of two or
more individuals who are named in the registration as joint tenants may be voted
in person or by proxy signed by any one or more of such individuals if either
(i) no other such individual or his legal representative is present and claims
the right to participate in the voting of such shares or prior to the vote filed
with the Secretary of the
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Corporation a contrary written voting authorization or direction or written
denial of authority of the individual present or signing the proxy proposed to
be voted or (ii) all such other individuals are deceased and the Secretary of
the Corporation has no actual knowledge that the survivor has been adjudicated
not to be the successor to the interest of those deceased.
2.12. 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.
2.13. Unanimous Consent 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 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
3.01. General Powers and Number. 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 successor shall have been
elected, or until his prior death, resignation or removal. A director may be
removed from office by affirmative vote of a majority of the outstanding shares
entitled to vote for the election of such director, taken at a meeting of
shareholders called for that purpose. A director may resign at any time by
filing his written resignation with the Secretary of 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 the annual
meeting of shareholders, and each adjourned session thereof. The place of such
regular meeting shall be the same as the place of the meeting of shareholders
which precedes it, or such other suitable place as may be announced at such
meeting of shareholders. 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, and if no other place is fixed the place of
meeting shall be the principal business office of the Corporation in the State
of Wisconsin.
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
telegram, cable or radiogram to such director at his business address or at such
other address as such director shall have designated in writing filed with the
Secretary, or (ii) by
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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.
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, cable or radiogram, such notice shall be deemed to be
delivered when the telegram, cable or radiogram is delivered to the transmitting
agency. Whenever any notice whatever is required to be given to any director 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 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 be specified in the notice or waiver of notice of
such 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.
3.08. 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 absence, the President, and in his 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. Any vacancy occurring in the Board of Directors,
including a vacancy created by an increase in the number of directors, may be
filled until the next succeeding annual election by the affirmative vote of a
majority of the directors then in office, though less than a quorum of the Board
of Directors; provided, that in case of a vacancy created by the removal of a
director by vote of the shareholders, the shareholders shall have the right
supplemented. 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 elect a presiding officer from its members, 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.
3.13. Unanimous Consent Without Meeting. Any action required or
permitted by the articles of incorporation or by-laws or any provision of law to
be taken by the Board of Directors or any committee thereof at a meeting or by
resolution may be taken without a meeting if a consent in writing, setting forth
the action so taken, shall be signed by all of the directors or members of such
committee entitled to vote with respect to such action.
ARTICLE IV - OFFICERS
4.01. Number. The principal officers of the Corporation shall be a
Chairman of the Board (if the Board of Directors determines to elect one), a
President, one or more Vice Presidents, one or more of
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whom may be designated Executive Vice President and one or more of whom may be
designated Senior Vice President, 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 Vice President and President and Secretary. 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 elect or appoint, from time to time and for such periods or
without limitation as to time as the Board shall order.
4.02. 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 or until his prior death, resignation or removal.
4.03. Removal. Any officer or agent 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.
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 for the unexpired portion of the term.
4.05. Chairman of the Board. The Chairman of the Board (if the Board
of Directors determines to elect one) shall preside at all meetings of the Board
of Directors and shall have such further and other authority, responsibility and
duties as may be granted to or imposed upon him by the Board of Directors,
including without limitation his 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 shall, when present, preside at all meetings of the shareholders
and shall preside at all meetings of the Board of Directors unless the Board of
Directors shall have elected a Chairman of the Board of Directors. He 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 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 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 may authorize any Vice
President or other officer or agent of the Corporation to sign, execute and
acknowledge such documents or instruments in his place and stead. In general he
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 elect a Chairman
of the Board or in the event of his 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.
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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,
and provided that in no case shall the Chairman of the Board be empowered in
place of the President to sign the certificates for shares of stock of the
Corporation.
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 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 shall exercise
the functions of the chief executive officer of the Corporation. He 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 office
or are properly required of him by the Board of Directors or the Chairman of the
Board. He 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 shall deem necessary, to prescribe their power, duties
and compensation and to delegate authority to them.
4.08. The Vice Presidents. At the time of election, one or more of the
Vice Presidents may be designated Executive Vice President and one or more of
the Vice Presidents may be designated Senior Vice President. In the absence of
the President or in the event of his death, inability or refusal to act, or in
the event for any reason it shall be impracticable for the President to act
personally, the Executive Vice President, or if more than one, the Executive
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 election, or in the
event of his or their inability to act then the Senior Vice President or if more
than one, the Senior 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 election, or in the event of his or their inability to act, then the other
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 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 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 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 address 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 have such other duties and exercise such
authority as from time to time may be delegated or assigned to him by the
President or by the Board of Directors.
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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 from time to time be delegated or assigned to
him 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
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 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 is so appointed to be assistant, or as to which he is so
appointed to act, except as such power may be otherwise defined or restricted by
the Board of Directors.
4.13. Salaries. The salaries of the principal officers shall be fixed
from time to time by the Board of Directors or by a duly authorized committee
thereof, and no officer shall be prevented from receiving such salary by reason
of the fact that he is also a director of the Corporation.
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 and by the Secretary, an
Assistant Secretary, the Treasurer or an Assistant Treasurer; 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.
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.
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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 be present, or in his
absence by any Vice President of this Corporation who may be present, and (b)
whenever, in the judgment of the President, or in his 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. Certificates for Shares. Certificates representing shares of the
Corporation shall be in such form, consistent with law, as shall be determined
by the Board of Directors. Such certificates shall be signed by the 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 as provided in Section 6.06.
6.02. Facsimile Signatures and Seal. The seal of the Corporation on any
certificates for shares may be a facsimile. The signatures of the President or
Vice President and the Secretary or Assistant Secretary upon a certificate may
be facsimiles if the certificate is countersigned by a transfer agent, or
registered by a registrar, other than the Corporation itself or an employee of
the Corporation.
6.03. 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 were such officer at
the date of its issue.
6.04. 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
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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.
6.05. Restrictions on Transfer. The face or reverse side of each
certificate representing shares shall bear a conspicuous notation of any
restriction imposed by the Corporation upon the transfer of such shares.
6.06. Lost, Destroyed or Stolen Certificates. Where the owner claims
that his certificate for shares has been lost, destroyed or wrongfully taken, a
new certificate shall be issued in place thereof if the owner (a) so requests
before the Corporation has notice that such shares have been acquired by a bona
fide purchaser, and (b) files with the Corporation a sufficient indemnity bond,
and (c) satisfies such other reasonable requirements as the Board of Directors
may prescribe.
6.07. Consideration for Shares. The shares of the Corporation may be
issued for such consideration as shall be fixed from time to time by the Board
of Directors, provided that any shares having a par value shall not be issued
for a consideration less than the par value thereof. The consideration to be
paid for shares may be paid in whole or in part, in money, in other property,
tangible or intangible, or in labor or services actually performed for the
Corporation. When payment of the consideration for which shares are to be issued
shall have been received by the Corporation, such shares shall be deemed to be
fully paid and nonassessable by the Corporation. No certificate shall be issued
for any share until such share is fully paid.
6.08. 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.
ARTICLE VII - OFFICERS AND DIRECTORS.
LIABILITY AND INDEMNITY; TRANSACTIONS WITH CORPORATION
7.01. Definitions Applicable to Article VII.
(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.
(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.
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(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.
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.
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(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.
7.02 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 7.02 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.
7.03 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 7.03, indemnification
shall not be required for any Liability or Expenses to the
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extent the same have been 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 By-Law. Without
intending to limit the generality of the indemnification rights provided under
subsections 7.03(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 By-Laws, even though it is thereafter determined that such provision was
invalid or otherwise could not have justifiably been relied upon.
7.04 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 7.04(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:
(1) 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;
(2) 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;
(3) 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
(4) 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").
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(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.
(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 7.05), 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.
7.05 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
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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.
7.06 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 7.05 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.
7.07 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.
7.08 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
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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.
7.09 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.
7.10 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 By-Law shall be liberally construed in order to fulfill this
intent, and in no event shall a Director's or Officer's 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.
7.11 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.
7.12 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 By-Laws 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.
7.13 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
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amendment and delivery of notice thereof to such Director or Officer, regardless
of when any Claim relating thereto is actually asserted.
7.14 Nonexclusivity of Article VII. 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.
7.15 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 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.
ARTICLE VIII - GENERAL
8.01. Seal. The Board of Directors may provide for 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".
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
of not less than a majority of the shares present or represented at any annual
or special meeting of the shareholders at which a quorum is in attendance.
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; but 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.
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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.
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