EXHIBIT 3.2
AMENDED AND RESTATED
BY-LAWS
OF
ROUNDY'S INC.
REFERENCE TABLE
AMENDED AND RESTATED BY-LAWS OF
ROUNDY'S INC.
Section Subject Matter Page
- ------- -------------- ----
ARTICLE I OFFICES
-------
Section 1.01 Principal and Business Offices I-1
Section 1.02 Registered Office I-1
ARTICLE II SHAREHOLDERS
------------
Section 2.01 Annual Meeting II-1
Section 2.02 Special Meeting II-1
Section 2.03 Place of Meeting II-1
Section 2.04 Notice of Meeting II-2
Section 2.05 Fixing of Record Date II-3
Section 2.06 Voting Lists II-3
Section 2.07 Quorum II-4
Section 2.08 Conduct of Meetings II-5
Section 2.09 Proxies II-5
Section 2.10 Voting of Shares II-5
Section 2.11 Voting of Shares by Certain Holders II-6
Section 2.12 Waiver of Notice by Shareholders II-7
Section 2.13 Action Without Meeting II-7
ARTICLE III BOARD OF DIRECTORS
------------------
Section 3.01 General Powers and Number III-1
Section 3.02 Tenure and Qualifications III-1
Section 3.03 Regular Meetings III-1
Section 3.04 Special Meetings III-2
Section 3.05 Notice; Waiver III-2
Section 3.06 Quorum III-2
Section 3.07 Manner of Acting III-3
Section 3.08 Conduct of Meetings III-3
Section 3.09 Vacancies III-3
Section 3.10 Compensation III-4
Section 3.11 Presumption of Assent III-4
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Section 3.12 Committees III-4
Section 3.13 Unanimous Consent Without Meeting III-5
Section 3.14 Conduct of Meetings By or Through the Use of
Communications Equipment III-5
(a) Participation III-5
(b) Nature of the Meeting III-6
(c) Minutes of the Meeting III-6
ARTICLE IV OFFICERS
--------
Section 4.01 Number IV-1
Section 4.02 Election and Term of Office IV-1
Section 4.03 Removal IV-1
Section 4.04 Vacancies IV-1
Section 4.05 Chairman of the Board IV-2
Section 4.06 President IV-2
Section 4.07 The Executive Vice President IV-2
Section 4.08 The Senior Vice President IV-3
Section 4.09 The Vice Presidents IV-3
Section 4.10 The Secretary IV-3
Section 4.11 The Treasurer IV-4
Section 4.12 Assistant Secretaries and Assistant Treasurers IV-4
Section 4.13 Other Assistants and Acting Officers IV-4
Section 4.14 Salaries IV-5
ARTICLE V CONTRACTS BETWEEN CORPORATION AND
---------------------------------
RELATED PERSONS V-1
---------------
ARTICLE VI CONTRACTS, LOANS, CHECKS AND DEPOSITS;
--------------------------------------
SPECIAL CORPORATE ACTS
----------------------
Section 6.01 Contracts VI-1
Section 6.02 Loans VI-1
Section 6.03 Checks, Drafts, Etc. VI-1
Section 6.04 Deposits VI-1
Section 6.05 Voting of Securities Owned by this Corporation VI-2
ARTICLE VII CERTIFICATES FOR SHARES AND THEIR TRANSFER
------------------------------------------
Section 7.01 Certificates for Shares VII-1
Section 7.02 Facsimile Signatures and Seal VII-1
Section 7.03 Signature by Former Officers VII-1
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Section 7.04 Transfer of Shares VII-1
Section 7.05 Lost, Destroyed or Stolen Certificates VII-2
Section 7.06 Consideration for Shares VII-2
Section 7.07 Restrictions on Transfer VII-3
Section 7.08 Stock Regulations VII-3
ARTICLE VIII INDEMNIFICATION, LIMITED LIABILITY AND
--------------------------------------
INSURANCE
---------
Section 8.01 General Scope and Definitions VIII-1
Section 8.02 Mandatory Indemnification VIII-2
Section 8.03 Determination of Right to Indemnification VIII-3
Section 8.04 Allowance of Expenses as Incurred VIII-3
Section 8.05 Partial Indemnification VIII-4
Section 8.06 Indemnification of Employees and Agents VIII-4
Section 8.07 Limited Liability of Directors VIII-4
Section 8.08 Severability of Provisions VIII-5
Section 8.09 Nonexclusivity of Rights VIII-5
Section 8.10 Purchase of Insurance VIII-5
Section 8.11 Amendment VIII-6
ARTICLE IX SEAL IX-1
----
ARTICLE X AMENDMENTS
----------
Section 10.01 By Shareholders X-1
Section 10.02 By-Law Fixing Quorum or Voting Requirements
for Shareholders X-1
Section 10.03 By-Law Fixing Quorum or Voting Requirements
for Directors X-1
Section 10.04 By Directors X-2
Section 10.05 Implied Amendments X-2
ARTICLE XI GENDER XI-1
------
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AMENDED AND RESTATED BY-LAWS OF
ROUNDY'S INC.
ARTICLE I
OFFICES
SECTION 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.
SECTION 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. 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.
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ARTICLE II
SHAREHOLDERS
SECTION 2.01. Annual Meeting.
The annual meeting of the shareholders shall be held on the second
Wednesday in the month of April of each year beginning with the year 2003, or at
such other date within 30 days thereof as may be authorized by the Board of
Directors and set forth in the notice of meeting, 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
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.
SECTION 2.02. Special Meeting.
Special meetings of the shareholders, for any purpose or purposes,
unless otherwise prescribed by applicable law, may be called by the Chairman of
the Board (if one is designated), the President or the Board of Directors, and
shall be called by the President at the written request of (a) the holders of
not less than one-tenth of all votes entitled to be cast on any issue proposed
to be considered at the special meeting, if such holders sign, date and deliver
to the Corporation a written request stating the purpose or purposes for such
meeting, or (b) one-third of the directors then in office. Only business within
the purpose described in the notice of a special meeting may be conducted at
such meeting.
SECTION 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(s) 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.
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SECTION 2.04. Notice of Meeting.
(a) 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 ten nor more than 60 days before the date of
such meeting to each shareholder of record entitled to vote at such meeting and
to any other shareholder entitled by the Wisconsin Business Corporation Law or
the Articles of Incorporation to receive notice of the meeting. Such notice may
be oral or written and 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 or delivered by private carrier, such notice shall
be deemed to be delivered when deposited in the United States mail, with postage
thereon prepaid, or when deposited with the private carrier, as appropriate,
addressed to the shareholder at his address as it appears on the stock record
books of the Corporation. Oral notice shall be deemed to be delivered when
communicated. If notice is given by telegraph, teletype, facsimile or other form
of wire or wireless communication, such notice shall be deemed to be delivered
when transmitted.
(b) If any shareholder meeting is adjourned to a different date, time
or place, notice need not be given of the new date, time and place, if the new
date, time and place is announced at the meeting before adjournment. If a new
record date for the adjourned meeting is, or must be fixed, then notice must be
given pursuant to the requirements of paragraph (a) of this section 2.04 to
those persons who are shareholders as of the new record date.
(c) If the purpose of any shareholder meeting is to consider a
proposed amendment to the Articles of Incorporation, a plan of merger or share
exchange, the sale, lease, exchange or other disposition of all, or
substantially all, of the Corporation's property, the dissolution of the
Corporation or the removal of a director, the notice must so state and be
accompanied by, respectively, a copy or summary of the:
(i) Articles of Amendment;
(ii) plan of merger or share exchange; or
(iii) agreements regarding the disposition of all the
Corporation's property.
If the proposed corporate action creates dissenters' rights, the notice must
state that shareholders are or may be entitled to assert dissenters' rights, and
must be accompanied by a copy of sections 180.1301 to 180.1331 of the Wisconsin
Business Corporation Law.
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SECTION 2.05. Fixing of Record Date.
For the purpose of determining (a) shareholders entitled to notice of
any meeting of shareholders or any adjournment thereof; (b) shareholders
entitled to demand a special meeting; (c) shareholders entitled to vote or take
any other action; or (d) a listing of shareholders for any other purpose, 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 70 days
and, in case of a meeting of shareholders, not less than 10 days prior to the
date on which the particular action requiring such determination of shareholders
is to be taken. 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
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. If no record date is fixed by the Board of Directors for the
determination of shareholders entitled to notice of, or to vote at, a meeting of
shareholders, or shareholders entitled to receive a share dividend or
distribution, the record date for determination of such shareholders shall be at
the close of business on:
(a) With respect to an annual shareholder meeting or any special
meeting called by the Board of Directors or any person specifically authorized
by the Board of Directors or these By-Laws to call a meeting, the day before the
first notice is delivered to shareholders;
(b) With respect to the payment of a share dividend, the date the
Board of Directors authorizes the share dividend, and;
(c) With respect to a distribution to shareholders, other than a
distribution involving a purchase, redemption or other acquisition of the
Corporation's shares, the date on which the Board of Directors authorizes the
distribution.
The record date for determining shareholders entitled to demand a special
meeting is the date that the first shareholder signs the demand.
SECTION 2.06. Voting Lists.
After fixing a record date for a shareholder meeting, the Corporation
shall prepare a list of the names of all of its shareholders who are entitled to
notice of such meeting. The list shall be arranged by class or series of shares
and shall show the address of and number of shares held by each shareholder. The
Corporation shall make the shareholder list available for inspection by any
shareholder at the
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Corporation's principal office, or at a place identified in the meeting notice
in the city where the meeting will be held, for a period beginning two business
days after notice of the meeting is given and continuing until the date of the
meeting. During the period that the shareholder list is available for
inspection, a shareholder or his agent or attorney may, on written demand,
inspect and, subject to the requirements of the Wisconsin Business Corporation
Law, copy the list, at his expense, during regular business hours. The
Corporation shall also make the shareholder list available at the meeting, and
any shareholder or his agent or attorney may inspect the list at any time during
the meeting or any adjournment thereof. Failure to comply with the requirements
of this section shall not affect the validity of any action taken at such
meeting.
SECTION 2.07. Quorum.
If the Articles of Incorporation or the Wisconsin Business Corporation
Law provides for voting by a single voting group on a matter, action on that
matter is taken when voted upon by that voting group. 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. Unless the Articles
of Incorporation, these By-Laws or the Wisconsin Business Corporation Law
provide otherwise, a majority of the votes entitled to be cast on a matter by
the voting group constitutes a quorum of that voting group for action on that
matter. If a quorum exists, action on a matter by the voting group, other than
the election of directors, is approved if the votes cast within the voting group
favoring the action exceed the votes cast opposing the action, unless the
Articles of Incorporation, these By-Laws or the Wisconsin Business Corporation
Law requires a greater number of affirmative votes. If the Articles of
Incorporation or the Wisconsin Business Corporation Law provide for voting by
two or more voting groups on a matter, action on that matter is taken only when
voted upon by each of those voting groups counted separately. Except as provided
in the Articles of Incorporation, each director shall be elected by a plurality
of the votes cast by the shares entitled to vote in the election at a meeting in
which a quorum is present. 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. Once a share is
represented for any purpose at a meeting, other than for the purpose of
objecting to holding the meeting or transacting business at the meeting, it is
considered present for purposes of determining whether a quorum exists for the
remainder of the meeting and for any adjournment of that meeting unless a new
record date is or must be set for that adjourned meeting.
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SECTION 2.08. Conduct of Meetings.
The Chairman of the Board, if one be designated, and in his absence,
the President or a Vice President, in the order provided under sections 4.07,
4.08 and 4.09, 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. The Secretary of the Corporation shall act as secretary
of all meetings of the shareholders. In the absence of the Secretary, the
presiding officer may appoint any other person to act as secretary of the
meeting.
SECTION 2.09. Proxies.
At all meetings of shareholders, a shareholder entitled to vote may
vote in person or by proxy appointed in writing by the shareholder or by his
duly authorized attorney-in-fact. An appointment of a proxy is effective when
received by the Secretary or other officer or agent of the Corporation
authorized to tabulate votes. Except as provided in the Wisconsin Business
Corporation Law, a proxy may be revoked at any time before it is voted, unless
the proxy conspicuously states that it is irrevocable and the appointment is
coupled with an interest. A proxy may be revoked by written notice filed with
the Secretary or the acting secretary of the meeting or by oral notice given by
the shareholder to the presiding officer during the meeting. The presence of a
shareholder who has filed his proxy shall not of itself constitute a revocation.
No proxy shall be valid after 11 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.
SECTION 2.10. Voting of Shares.
Each outstanding share 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 this section 2.10, the Articles of Incorporation or the Wisconsin
Business Corporation Law. Shares of this Corporation are not entitled to a vote
if they are owned, directly or indirectly, by a second domestic corporation or a
foreign corporation and this Corporation owns, directly or indirectly, a
sufficient number of shares entitled to elect a majority of the directors of the
second domestic corporation or foreign corporation. The foregoing sentence does
not limit the power of a corporation to vote shares held by it in a fiduciary
capacity.
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SECTION 2.11. Voting of Shares by Certain Holders.
(a) If the name signed on a vote, consent, waiver or proxy appointment
corresponds to the name of its shareholder, the Corporation, if acting in good
faith, may accept the vote, consent, waiver or proxy appointment and give it
effect as the act of the shareholder.
(b) If the name signed on a vote, consent, waiver or proxy appointment
does not correspond to the name of its shareholder, the Corporation, if acting
in good faith, may accept the vote, consent, waiver or proxy appointment and
give it effect as the act of the shareholder if any of the following apply:
(i) The shareholder is an entity and the name signed purports to
be that of an officer or agent of the entity.
(ii) The name signed purports to be that of a personal
representative, administrator, executor, guardian or conservator
representing the shareholder and, if the Corporation requests, evidence
of fiduciary status acceptable to the Corporation is presented with
respect to the vote, consent, waiver or proxy appointment.
(iii) The name signed purports to be that of a receiver or
trustee in bankruptcy of the shareholder and, if the Corporation
requests, evidence of this status acceptable to the Corporation is
presented with respect to the vote, consent, waiver or proxy
appointment.
(iv) The name signed purports to be that of a pledgee,
beneficial owner or attorney-in-fact of the shareholder and, if the
Corporation requests, evidence acceptable to the Corporation of the
signatory's authority to sign for the shareholder is presented with
respect to the vote, consent, waiver or proxy appointment.
(v) Two or more persons are the shareholder as co-owners or
fiduciaries and the name signed purports to be the name of at least one
of the co-owners or fiduciaries and the person signing appears to be
acting on behalf of all co-owners or fiduciaries.
(c) The Corporation may reject a vote, consent, waiver or proxy
appointment if the Secretary or other officer or agent of the Corporation who is
authorized to tabulate votes, acting in good faith, has reasonable basis for
doubt about the validity of the signature on it or about the signatory's
authority to sign for the shareholder.
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(d) The Corporation and its officer or agent who accepts or rejects a
vote, consent, waiver or proxy appointment in good faith and in accordance with
this section 2.11 are not liable in damages to the shareholder for the
consequences of the acceptance or rejection.
(e) Corporate action based on the acceptance or rejection of a vote,
consent, waiver or proxy appointment under this section 2.11 is valid unless a
court of competent jurisdiction determines otherwise.
SECTION 2.12. Waiver of Notice by Shareholders.
Whenever any notice 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 stated in the notice, by the shareholder entitled to such notice, shall
be deemed equivalent to the giving of such notice. The waiver shall contain the
same information as would have been required to be included in such notice,
except the time and place of meeting, and shall be delivered to the Corporation
for inclusion in the corporate records. A shareholder's attendance at a meeting,
in person or by proxy, waives objection to all of the following: (a) lack of
notice or defective notice of the meeting, unless the shareholder at the
beginning of the meeting or promptly upon arrival objects to holding the meeting
or transacting business at the meeting; and (b) consideration of a particular
matter at a meeting that is not within the purpose described in the meeting
notice, unless the shareholder objects to consideration of the matter when it is
presented.
SECTION 2.13. Action Without Meeting.
Action required or permitted to be taken at a shareholders meeting may
be taken without a meeting in any of the following ways: (a) without action by
the Board of Directors, by all shareholders entitled to vote on the action; and
(b) if the Articles of Incorporation so provide, by shareholders who would be
entitled to vote at a meeting those shares with voting power to cast not less
than the minimum number or, in the case of voting by groups, numbers of votes
that would be necessary to authorize or take the action at a meeting at which
all shares entitled to vote were present and voted, except action may not be
taken under this item (b) with respect to an election of directors for which
shareholders may vote cumulatively. Action under this section 2.13 must be
evidenced by one or more written consents describing the action taken, signed by
the number of shareholders necessary to take the action as provided in this
section 2.13 and delivered to the Corporation for inclusion in the corporate
records. Action taken under this section 2.13 is effective when consents
representing the required number of shares are delivered to the Corporation,
unless the consent specifies a different effective
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date. Within ten days after action taken under (b) of the first sentence of this
section 2.13 is effective, the Corporation shall give notice of the action to
shareholders who, on the record date determined in accordance with the following
sentence, were entitled to vote on the action but whose shares were not
represented on the written consent. If not otherwise fixed under the terms of
these By-Laws or in accordance with the Wisconsin Business Corporation Law, the
record date for determining shareholders entitled to take action without a
meeting is the date that the first shareholder signs the consent. A consent
signed under this section 2.13 has the effect of a meeting vote and may be
described as such in any document. If the Wisconsin Business Corporation Law
requires that notice of proposed action be given to shareholders who are not
entitled to vote on the action and the action is to be taken by consent under
this section 2.13, the Corporation shall give those nonvoting shareholders
written notice of the proposed action at least ten days before the action
becomes effective. The notice shall comply with the requirements of the
Wisconsin Business Corporation Law and shall contain or be accompanied by the
same material that would have been required to be sent to nonvoting shareholders
in a notice of meeting at which the proposed action would have been submitted to
the shareholders for action.
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ARTICLE III
BOARD OF DIRECTORS
SECTION 3.01. General Powers and Number.
The business and affairs of the Corporation shall be managed under the
direction of its Board of Directors. Unless otherwise provided in the Articles
of Incorporation, the authorized number of Directors shall be not less than
three (3) nor more than twenty (20). The current number of directors shall be
within the limits specified above, and as determined (or as amended from time to
time) by resolution adopted by either the shareholders or the Directors. After
any shares of this Corporation are issued, the maximum or minimum number of
Directors cannot be changed, nor can a fixed number be substituted for the
maximum and minimum numbers, except by an amendment to this section 3.01, duly
approved by the outstanding shares entitled to vote.
SECTION 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 (unless there is a
decrease in the number of directors), or until his prior death, resignation or
removal. Except as provided in the Articles of Incorporation, a director may be
removed from office only if the number of votes cast to remove the director
exceeds the number of votes cast not to remove him. If a director is elected by
a voting group of shareholders, only the shareholders of that voting group may
participate in the vote to remove that director. A director may be removed by
the shareholders only at a meeting called for the purpose of removing a
director, and the meeting notice shall state that the purpose, or one of the
purposes, of the meeting is removal of the director.
SECTION 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.
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SECTION 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, the President, Secretary or any two
directors. The person or persons authorized to call special meetings of the
Board of Directors may fix any place, either within or without the State of
Wisconsin, as the place for holding any special meeting of the Board of
Directors called by them, 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.
SECTION 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 delivered not less than 24 hours prior
to the time of the meeting. Such notice may be oral or written and 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
or delivered by private carrier, such notice shall be deemed to be delivered
when deposited in the United States mail, with postage thereon prepaid, or when
deposited with the private carrier, as appropriate, addressed to the director at
his business address or at such other address as such director shall have
designated in writing and filed with the Secretary. Oral notice shall be deemed
to be delivered when communicated. If notice is given by telegraph, teletype,
facsimile or other form of wire or wireless communication, such notice shall be
deemed to be delivered when transmitted. Whenever any notice whatever is
required to be given to any director of the Corporation under the Articles of
Incorporation, these By-Laws or any provision of law, a waiver thereof in
writing, signed at any time, whether before or after the time stated in the
notice, 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, unless the director at the
beginning of the meeting or promptly upon his 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. 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.
SECTION 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 3.01
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.
Any
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amendment to this section 3.06 is subject to the requirements set forth in
section 10.03.
SECTION 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. Any amendment to this section 3.07 is subject to the requirements of
section 10.03.
SECTION 3.08. Conduct of Meetings.
The Chairman of the Board, and in his absence, the President or a Vice
President who is a director, in the order provided under sections 4.07, 4.08 and
4.09, 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.
SECTION 3.09. Vacancies.
Except as provided in the Articles of Incorporation, 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
(a) the Board of Directors; (b) the affirmative vote of a majority of the
directors then in office, if the directors remaining in office constitute less
than a quorum of the Board of Directors; or (c) by vote of the shareholders as
provided in section 2.07. 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 to fill such vacancy at the same meeting or any adjournment thereof.
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 (by
reason of resignation effective at a later date) may be filled before the
vacancy occurs, but the new director may not take office until the vacancy
occurs. The term of a director elected to fill a vacancy expires at the next
shareholders meeting at which directors are elected. However, if his term
expires, he shall continue to serve until his successor is elected and qualified
or until there is a decrease in the number of directors.
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SECTION 3.10. Compensation.
The Board of Directors, by affirmative vote of a majority of the directors
then in office, and irrespective of any personal interest of any of its members,
may establish reasonable compensation of all directors for services to the
Corporation as directors, officers or otherwise, or may delegate such authority
to an appropriate committee. Members of the Board of Directors shall be paid
their expenses, if any, of attendance at each meeting of the Board of Directors.
The Board of Directors also shall have authority to provide for or to delegate
authority to an appropriate committee to provide for reasonable pensions,
disability or death benefits and other benefits or payments to directors,
officers and employees and to their estates, families, dependents or
beneficiaries on account of prior services rendered by such directors, officers
and employees to the Corporation.
SECTION 3.11. Presumption of Assent.
A director of the Corporation who is present and is announced as present at
a meeting of the Board of Directors or a committee thereof of which he is a
member at which action on any corporate matter is taken shall be presumed to
have assented to the action taken unless (a) he dissented or abstained and his
dissent or abstention is entered in the minutes of the meeting; (b) he objects
at the beginning of the meeting (or promptly upon his arrival) to the holding of
the meeting or transacting business at the meeting; (c) he shall deliver written
notice, in accordance with the applicable requirements of law, of his dissent or
abstention to the presiding officer of the meeting before its adjournment or to
the Corporation immediately after adjournment of the meeting; or (d) he
dissented or abstained and the minutes of the meeting fail to show his dissent
or abstention and he delivers to the Corporation written notice of that failure;
in accordance with the applicable requirements of law, promptly after receiving
the minutes. Such right to dissent or abstain shall not apply to a director who
voted in favor of such action.
SECTION 3.12. Committees.
Except as provided in the Articles of Incorporation, the Board of Directors
by resolution adopted by the affirmative vote of a majority of the number of
directors set forth in section 3.01 may designate one or more committees, each
committee to consist of two or more directors elected by the Board of Directors,
which to the extent provided in said resolution as initially adopted, and as
thereafter supplemented or amended by further resolution adopted by a like vote,
shall have and may exercise, when the Board of Directors is not in session, the
powers of the Board of Directors in the management of the business and affairs
of the Corporation, except that a committee may not do any of the following: (a)
authorize dividends or other distributions to shareholders; (b) elect any of the
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principal officers of the Corporation; (c) fill vacancies in the Board of
Directors or committees created pursuant to this section 3.12; (d) approve or
propose to shareholders action that the Wisconsin Business Corporation Law
requires to be approved by shareholders; (e) amend the Articles of
Incorporation; (f) adopt, amend or repeal By-Laws; (g) approve a plan of merger
not requiring shareholder approval; (h) authorize or approve reacquisition of
shares, except according to a formula or method prescribed by the Board of
Directors; or (i) authorize or approve the issuance or sale or contract for sale
of shares, or determine the designation of 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 described by the Board of Directors. Sections 3.03 to 3.11 of
this Article III which govern meetings, action without meetings, notice and
waiver of notice, quorum and voting requirements of the Board of Directors apply
to committees and their members. 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.
SECTION 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 a
committee of the Board of Directors) 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 the directors then in office. Action taken under this
section 3.13 is effective when the last director signs the consent, unless the
consent specifies a different effective date. A consent signed under this
section 3.13 has the effect of a unanimous vote taken at a meeting in which all
directors were present, and may be described as such in any document.
SECTION 3.14. Conduct of Meetings By or Through the Use of Communications
Equipment.
(a) Participation. Any or all directors may participate in a regular or
special meeting of the Board of Directors or in a committee meeting of the Board
of Directors by, or may conduct the meeting through the use of, any means of
communication by which any of the following occurs: (i) all participating
directors may simultaneously hear each other during the meeting; or (ii) all
communication during the meeting is immediately transmitted to each
participating director, and each participating director is able to immediately
send messages to all other participating directors. A director participating in
such a meeting is deemed to be present in person at the meeting.
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(b) Nature of the Meeting. If a meeting is conducted pursuant to this
section 3.14, the presiding officer at the meeting shall inform each
participating director that a meeting is taking place at which official business
may be transacted.
(c) Minutes of the Meeting. If requested by a director, the Secretary of
the Corporation shall prepare minutes of a meeting pursuant to this section and
distribute such minutes to each director.
III-6
ARTICLE IV
OFFICERS
SECTION 4.01. Number.
The principal officers of the Corporation shall consist of the Chairman of
the Board, if one is designated, a President, one or more Vice Presidents (the
number, precedence and duties thereof to be determined by the Board of
Directors), a Secretary and a Treasurer. The Board of Directors, in its
discretion, may elect or appoint any or all of such principal officers. The
Board of Directors may also designate and elect a Vice President as Executive
Vice President and may designate and elect any other Vice President as Senior
Vice President. 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.
SECTION 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.
SECTION 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.
SECTION 4.04. Vacancies.
A vacancy in any office because of death, resignation, removal,
disqualification or otherwise, may be filled by the Board of Directors for the
unexpired portion of the term.
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SECTION 4.05. Chairman of the Board.
The Chairman of the Board, if one is designated, (a) shall, when present,
preside at all meetings of the shareholders and of the Board of Directors; (b)
may call a meeting of the Board of Directors; and (c) may sign with the
Secretary, or other proper officer thereunto authorized by the Board of
Directors, deeds, mortgages, bonds, contracts, certificates for shares of the
Corporation, the issuance of which shall have been authorized by the Board of
Directors or other instrument which the Board of Directors has authorized to be
executed except in cases where the signing and execution thereof shall be
expressly delegated by the Board of Directors or by these By-Laws to some other
agent of the Corporation or shall be required by law to be otherwise signed and
executed. The Chairman of the Board shall have such other powers and duties as
he may be called upon to perform by the Board of Directors.
SECTION 4.06. President.
The President shall be the principal executive officer of the Corporation
and, subject to the control of the Board of Directors, shall in general
supervise and control all of the business and affairs of the Corporation. He
shall, in the absence of the Chairman of the Board if one be designated, preside
at all meetings of the shareholders and 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 President and such other
duties as may be prescribed by the Board of Directors from time to time.
SECTION 4.07. The Executive Vice President.
The Executive Vice President, if one is designated, shall assist the
President in the discharge of supervisory, managerial and executive duties and
functions. In the absence of the President or in the event of his death,
inability or refusal to act, the Executive Vice President shall perform the
duties of the President and when so
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acting shall have all the powers and duties of the President. He shall perform
such other duties and shall have such authority as from time to time may be
assigned to him by the Board of Directors or the President.
SECTION 4.08. The Senior Vice President.
The Senior Vice President, if one is designated, in the absence of the
Executive Vice 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 Executive
Vice President to act personally, shall perform the duties of the Executive Vice
President, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the Executive Vice President. The Senior Vice
President shall perform such other duties and have such authority as from time
to time may be delegated or assigned to him by the President or by the Board of
Directors.
SECTION 4.09. The Vice Presidents.
In the absence of the President or, if designated, the Executive Vice
President or the Senior Vice President, or in the event of his or their death,
inability or refusal to act, or in the event for any reason it shall be
impracticable for the President or, if designated, the Executive Vice President
or the Senior Vice President to act personally, the Vice President (or in the
event there be more than one Vice President, the Vice Presidents in the order
designated by the Board of Directors, or in the absence of any designation, then
in the order of their election) shall perform the duties of the President, the
Executive Vice President or the Senior Vice President, as applicable, and when
so acting, shall have all the powers of and be subject to all the restrictions
upon the President, the Executive Vice President or the Senior Vice President,
as applicable. A Vice President shall perform such other duties and have such
authority as from time to time may be delegated or assigned to him by the
President or by the Board of Directors. The execution of any instrument of the
Corporation by any Vice President shall be conclusive evidence, as to third
parties, of his authority to act in the stead of the President, the Executive
Vice President or the Senior Vice President.
SECTION 4.10. 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; (d) keep or
arrange for the keeping of a register of the post office address of each
shareholder, officer and director, as furnished to the Secretary; (e) have
general charge of the stock transfer books of
IV-3
the Corporation; and (f) in general perform all 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.
SECTION 4.11. The Treasurer.
If required by the Board of Directors, the Treasurer shall give a bond for
the faithful discharge of his duties in such sum and with such surety or
sureties as the Board of Directors shall determine. He shall: (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation; (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit all such monies 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 6.04; 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 may be
delegated or assigned to him by the President or by the Board of Directors.
SECTION 4.12. 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. An Assistant Treasurer
shall, 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.
SECTION 4.13. 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.
IV-4
SECTION 4.14. 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.
IV-5
ARTICLE V
CONTRACTS BETWEEN
CORPORATION AND RELATED PERSONS
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 he or 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 he or they are interested, shall be valid for
all purposes, notwithstanding his or their interest in such contract or
transaction, if any of the following is true:
(a) 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 in the manner provided below;
(b) 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 by the affirmative vote of a
majority of the shares entitled to be counted in the manner provided below; or
(c) the transaction was fair to the Corporation.
For purposes of (a) above, a contract or a transaction is authorized,
approved or specifically ratified if it received 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 purposes of taking the action under this ARTICLE V. 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 action taken under this ARTICLE
V if the transaction is otherwise authorized, approved or ratified as provided
in this ARTICLE V.
For purposes of (b) above, a contract or transaction is authorized,
approved or specifically ratified if it receives the vote of a majority of the
shares entitled to be counted under this ARTICLE V. Shares owned by or voted
under the control of a director who has a direct or indirect interest in the
contract or transaction, and shares owned by or voted under the control of an
entity in which the director has a material financial interest or in which the
director is a general partner, may not be counted in a vote of shareholders to
determine whether to authorize, approve or
V-1
ratify a contract or transaction. 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 ARTICLE V constitutes a
quorum for purposes of taking action under this ARTICLE V.
V-2
ARTICLE VI
CONTRACTS, LOANS, CHECKS
AND DEPOSITS; SPECIAL CORPORATE ACTS
SECTION 6.01. 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. 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.
SECTION 6.02. Loans.
No loans shall be contracted on behalf of the Corporation unless authorized
by or under the authority of a resolution of the Board of Directors. Such
authorization may be general or confined to specific instances.
SECTION 6.03. 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 as shall from time to time be determined by or under the authority of a
resolution of the Board of Directors.
SECTION 6.04. 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.
VI-1
SECTION 6.05. Voting of Securities Owned by this Corporation.
No officer of the Corporation shall have the right to vote the shares or
other securities issued by any other corporation owned or controlled by this
Corporation except as directed by the Board of Directors. To the extent directed
by the Board of Directors pursuant to the immediately preceding sentence, (a)
any shares or other securities issued by any other corporation owned or
controlled by this Corporation may be voted at any meeting of security holders
of such other corporation by the Chairman of the Board of this Corporation if he
be present, or in his absence by the President or any Vice President of this
Corporation who may be present, and (b) if this Corporation is required to
execute a proxy or written consent in 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. 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.
VI-2
ARTICLE VII
CERTIFICATES FOR SHARES
AND THEIR TRANSFER
SECTION 7.01. Certificates for Shares.
Certificates representing shares of the Corporation shall be in such form
as shall be determined by the Board of Directors. Each certificate shall state
on its face the name of the Corporation and that the Corporation is organized
under the laws of the State of Wisconsin and shall include the name of the
person to whom issued and the number and class of shares and the designation of
series, if any, that the certificate represents. Such certificates shall be
signed by either the Chairman of the Board, the President or a Vice President,
alone or together with 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 canceled and no new certificate shall be issued until the
former certificate for a like number of shares shall have been surrendered and
canceled, except as provided in section 7.05.
SECTION 7.02. Facsimile Signatures and Seal.
The seal, if any, of the Corporation on any certificates for shares may be
a facsimile. The signatures of the Chairman of the Board, the President, a Vice
President, the Secretary or an Assistant Secretary upon a certificate may be
facsimiles.
SECTION 7.03. Signature by Former Officers.
If 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, the certificate may be issued by the Corporation with the
same effect as if he were such officer at the date of its issue.
SECTION 7.04. 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 powers of an owner. Where a certificate for shares
is
VII-1
presented to the Corporation with a request for registration of 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 had discharged any such duty. The Corporation may
require reasonable assurance that said endorsements are genuine and effective
and may require compliance with such other regulations as may be prescribed by
or under the authority of the Board of Directors.
SECTION 7.05. Lost, Destroyed or Stolen Certificates.
Where the owner claims that his certificate for shares has been lost,
destroyed or wrongfully taken, then 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) satisfies such other
reasonable requirements as the Board of Directors or the President or Secretary
may prescribe, including, if requested, delivery to the Corporation of an
indemnity bond or other agreement of indemnity.
SECTION 7.06. Consideration for Shares.
The Board of Directors may authorize shares to be issued for consideration
consisting of any tangible or intangible property or benefit to the Corporation,
including cash, promissory notes, services performed, contracts for services to
be performed or other securities of the Corporation. Before the Corporation
issues shares, the Board of Directors shall determine that the consideration
received or to be received for the shares to be issued is adequate. The Board of
Directors determination is conclusive insofar as the adequacy of consideration
for the issuance of shares relates to whether the shares are validly issued,
fully paid and nonassessable. When the Corporation receives the consideration
for which the Board of Directors authorized the issuance of shares, the shares
issued for that consideration are fully paid and nonassessable. The Corporation
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 the
shares, and may credit distributions in respect of the 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 Corporation may cancel, in whole or in
part, the shares escrowed or restricted and the distributions credited.
VII-2
SECTION 7.07. Restrictions on Transfer.
The face or reverse side of each certificate representing shares shall bear
a conspicuous notation of any restriction imposed upon the transfer of such
shares.
SECTION 7.08. Stock Regulations.
The Board of Directors shall have the power and authority to make all such
further rules and regulations not inconsistent with applicable law as it may
deem expedient concerning the issue, transfer and registration of certificates
representing shares of the Corporation.
VII-3
ARTICLE VIII
INDEMNIFICATION, LIMITED LIABILITY
AND INSURANCE
SECTION 8.01. General Scope and Definitions.
(a) The rights of directors and officers of the Corporation provided in
this ARTICLE VIII shall extend to the fullest extent permitted by the Wisconsin
Business Corporation Law and other applicable laws as in effect from time to
time.
(b) For purposes of this ARTICLE VIII, "Corporation" means a domestic
corporation and any domestic or foreign predecessor of a domestic corporation
where the predecessor corporation's existence ceased upon the consummation of a
merger or other transaction.
(c) For purposes of this ARTICLE VIII, "director or officer" of a
corporation means any of the following:
(i) an individual who is or was a director or officer of the
Corporation;
(ii) an individual who, while a director or officer of the
Corporation, is or was serving at the Corporation's request 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;
(iii) an individual who, while a director or officer of the
Corporation, is or was serving an employee benefit plan because his duties
to the Corporation also imposed duties on or otherwise involved services by
the person to the plan or to participants in or beneficiaries of the plan;
and
(iv) unless the context requires otherwise, the estate or personal
representative of a director or officer.
(d) For purposes of this ARTICLE VIII, "expenses" means fees, costs,
charges, disbursements, attorneys' fees and any other expenses incurred in
connection with a proceeding, including a proceeding in which a director or
officer asserts his rights under this ARTICLE VIII.
(e) For purposes of this ARTICLE VIII, "liability" includes the obligation
to pay a judgment, settlement, penalty, assessment, forfeiture or fine
VIII-1
including an excise tax assessed with respect to an employee benefit plan, and
reasonable expenses.
(f) For purposes of this ARTICLE VIII, "party" includes an individual who
was or is, or who is threatened to be made, a named defendant or respondent in a
proceeding.
(g) For purposes of this ARTICLE VIII, "proceeding" means 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 (including federal or state
securities laws) and which is brought by or in the right of the Corporation or
by any other person.
SECTION 8.02. Mandatory Indemnification.
(a) To the extent that a director or officer has been successful on the
merits or otherwise in the defense of any proceeding (including, without
limitation, the settlement, dismissal, abandonment or withdrawal of any action
where he does not pay or assume any material liability), or in connection with
any claim, issue or matter therein, the Corporation shall indemnify the director
or officer against expenses actually and reasonably incurred by him in
connection with such proceeding to the extent that he was a party to the
proceeding because he is a director or officer.
(b) In cases not included under subsection (a), the Corporation shall
indemnify any director or officer against any liability actually and reasonably
incurred by the director or officer in a proceeding to which the director or
officer was a party because he is a director or officer, unless the liability
was incurred because the director or officer breached or failed to perform a
duty he owes to the Corporation and the breach or failure to perform constitutes
any of the following: (i) a willful failure to deal fairly with the Corporation
or its shareholders in connection with a matter in which the director or officer
has a material conflict of interest; (ii) a violation of criminal law, unless
the director or officer had reasonable cause to believe his conduct was lawful
or no reasonable cause to believe his conduct was unlawful; (iii) a transaction
from which the director or officer derived an improper personal profit; or (iv)
willful misconduct. The termination of a proceeding by judgment, order,
settlement or conviction, or upon a plea of no contest or an equivalent plea,
does not, by itself, create a presumption that indemnification of the director
or officer is not required under this subsection.
(c) Indemnification under this section is not required to the extent that
the director or officer has previously received indemnification or allowance of
VIII-2
expenses from any person, including the Corporation, in connection with the same
proceeding.
(d) A director or officer who seeks indemnification under this ARTICLE
VIII shall make a written request to the Corporation.
SECTION 8.03. Determination of Right to Indemnification.
Unless otherwise provided by the Articles of Incorporation or by written
agreement between the director or officer and the Corporation, the director or
officer seeking indemnification under section 8.02(b) shall make a written
request to the Corporation for indemnification which shall designate one of the
following means for determining his right to indemnification: (a) by a majority
vote of a quorum of the Board of Directors or a committee of directors,
consisting of directors not at the time parties to the same or related
proceedings; (b) by independent legal counsel selected by a quorum of the Board
of Directors or its committee in the manner prescribed in subsection (a) or, if
unable to obtain such a quorum or committee, by a majority vote of the full
Board of Directors, including directors who are parties to the same or related
proceedings; (c) by a panel of three arbitrators consisting of one arbitrator
selected by those directors entitled under (b) to select independent legal
counsel, one arbitrator selected by the director or officer seeking
indemnification and one arbitrator selected by the two arbitrators previously
selected; or (d) by an affirmative vote of a majority of the Corporation's
shares; provided, however, that shares owned by, or voted under the control of,
persons who are at the time parties to the same or related proceedings, whether
as plaintiffs or defendants or in any other capacity, may not be voted in making
the determination. The director or officer may apply to a court of competent
jurisdiction for review of an adverse determination under this section.
Any determination hereunder shall be made pursuant to procedures consistent
with the Wisconsin Business Corporation Law unless otherwise agreed by the
Corporation and the person seeking indemnification. Such determination shall be
completed and eligible expenses, if any, shall be paid to the person requesting
indemnification hereunder within 60 days of the Corporation's receipt of the
written request required hereunder.
SECTION 8.04. Allowance of Expenses as Incurred.
Upon written request of a director or officer who is a party to a
proceeding, the Corporation shall pay or reimburse his reasonable expenses as
incurred if the director or officer provides the Corporation with all of the
following: (a) a written affirmation of his good faith belief that he has not
breached or failed to perform his duties to the Corporation; and (b) a written
undertaking, executed personally or
VIII-3
on his behalf, to repay the allowance and, if required by the Corporation, to
pay reasonable interest on the allowance to the extent that it is ultimately
determined under section 8.03 that indemnification under section 8.02 is not
required and indemnification is not otherwise ordered by a court. The
undertaking under this subsection shall be an unlimited general obligation of
the director or officer and may be accepted without reference to his ability to
repay the allowance. The undertaking may be secured or unsecured.
SECTION 8.05. Partial Indemnification.
(a) If it is determined pursuant to section 8.03 of this ARTICLE VIII
that a director or officer is entitled to indemnification as to some claims,
issues or matters in connection with any proceeding, but not as to other claims,
issues or matters, the person or persons making such determination shall
reasonably determine those liabilities which are the result of claims, issues or
matters that are a proper subject for indemnification hereunder in light of all
of the circumstances.
(b) If it is determined pursuant to section 8.03 of this ARTICLE VIII
that certain expenses incurred by a director or officer are for any reason
unreasonable in amount in light of all the circumstances, the person or persons
making such determination shall authorize the indemnification of the director or
officer for only such amounts as he or they shall deem reasonable.
SECTION 8.06. Indemnification of Employees and Agents.
The Board of Directors, may, in its sole discretion, provide
indemnification and/or allowance of expenses in advance of a final determination
of any proceeding to an employee or agent of the Corporation who is not a
director or officer in connection with any proceeding in which the employee or
agent was a defendant because of his actions as an employee or agent of the
Corporation; provided, however, that prior to such indemnification or allowance
of expenses, the Board of Directors shall first determine that the employee or
agent acted in good faith and in a manner he reasonably believed to be in and
not opposed to the best interests of the Corporation.
SECTION 8.07. Limited Liability of Directors.
Except as provided in the Articles of Incorporation, a director shall
not 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 status as a
director, unless the person
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asserting liability proves that the breach or failure to perform constitutes any
of the acts of misconduct listed in section 8.02(b) of this ARTICLE VIII.
SECTION 8.08. Severability of Provisions.
The provisions of this ARTICLE VIII and the several rights to
indemnification, advancement of expenses and limitation of liability created
hereby are independent and severable and, if any such provision and/or right
shall be held by a court of competent jurisdiction in which a proceeding
relating to such provisions and/or rights is brought to be against public policy
or otherwise to be unenforceable, the other provisions of this ARTICLE VIII
shall remain enforceable and in full effect.
SECTION 8.09. Nonexclusivity of Rights.
The rights to indemnification and advancement of expenses provided for
in this ARTICLE VIII shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
any agreement authorized by the Board of Directors, any By-Law of the
Corporation, any vote of shareholders or disinterested directors or otherwise,
both as to action in his official capacity and as to action in another capacity.
Notwithstanding the foregoing, the Corporation shall not indemnify a director or
officer, or permit a director or officer to retain any allowance of expenses
pursuant to any such additional rights unless it is determined by or on behalf
of the Corporation that the director or officer did not breach or fail to
perform a duty he owes to the Corporation which constitutes conduct under
section 8.02(b). A director or officer who is a party to the same or related
proceeding for which indemnification or an allowance of expenses is sought may
not participate in a determination under this subsection.
SECTION 8.10. Purchase of Insurance.
The Corporation may purchase and maintain insurance on behalf of any
person who is a director or officer of the Corporation, to the extent that such
director or officer is insurable and such insurance coverage can be secured by
the Corporation at rates, and in amounts and subject to such terms and
conditions as shall be determined in good faith to be reasonable and appropriate
by the Board of Directors of the Corporation.
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SECTION 8.11. Amendment.
No amendment or repeal of this ARTICLE VIII shall be effective to
reduce the obligations of the Corporation under this ARTICLE VIII with respect
to any proceeding based upon occurrences which take place prior to such
amendment or repeal.
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ARTICLE IX
SEAL
The Board of Directors may provide a corporate seal which shall be
circular in form and shall have inscribed thereon the name of the Corporation
and the state of incorporation and the words "Corporate Seal."
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ARTICLE X
AMENDMENTS
SECTION 10.01. By Shareholders.
Except as limited by sections 10.02 and 10.03 or by applicable law,
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.
SECTION 10.02. By-Law Fixing Quorum or Voting Requirements for
Shareholders.
If authorized by the Articles of Incorporation, the shareholders may
adopt or amend a By-Law that fixes a greater or lower quorum requirement or
greater voting requirement for shareholders or voting groups of shareholders
than is otherwise provided by these By-Laws or the Wisconsin Business
Corporation Law. The adoption or amendment of a By-Law that adds, changes or
deletes a greater or lower quorum requirement or a greater voting requirement
for the shareholders must meet the same quorum requirement and be adopted by the
same vote and voting groups required to take action under the quorum and voting
requirements then in effect. A By-Law that fixes a greater or lower quorum
requirement or greater voting requirement for shareholders under this section
10.02 may not be adopted, altered, amended or repealed by the Board of
Directors.
SECTION 10.03. By-Law Fixing Quorum or Voting Requirements for
Directors.
A By-Law that fixes a greater or lower quorum requirement or a greater
voting requirement for the Board of Directors may be amended or repealed as
follows:
(a) If originally adopted by the shareholders, only by the
shareholders, unless the By-Law provides otherwise as permitted by this section
10.03; and
(b) if originally adopted by the Board of Directors, either by the
shareholders or by the Board of Directors.
A By-Law adopted or amended by the shareholders that fixes a greater or
lower quorum requirement or a greater voting requirement for the Board of
Directors may provide that it may be amended or repealed only by a specified
vote
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of either the shareholders or the Board of Directors. Action by the Board of
Directors to adopt or amend a By-Law that changes the quorum or voting
requirement for the Board of Directors must meet the same quorum requirement and
be adopted by the same vote required to take action under the quorum and voting
requirements then in effect, unless a different voting requirement is specified
in accordance with the prior sentence.
SECTION 10.04. By Directors.
The Board of Directors may amend or repeal these By-Laws or adopt new
By-Laws except to the extent (a) the Articles of Incorporation, section 10.02 or
10.03 of these By-Laws or any provision of the Wisconsin Business Corporation
Law reserve that power exclusively to the shareholders; or (b) the shareholders
in adopting, amending or repealing a particular By-Law provide within these
By-Laws that the Board of Directors may not amend, repeal or readopt that
By-Law.
SECTION 10.05. 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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ARTICLE XI
GENDER
As used in these By-Laws wherever appropriate, the masculine gender
shall also refer to the feminine gender.
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