EXHIBIT 10.14
BYLAWS
OF
KOHL'S CORPORATION
TABLE OF CONTENTS
ARTICLE I.
OFFICES; RECORDS
Page
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1.01 Principal and Business Offices............................. 1
1.02 Registered Office.......................................... 1
1.03 Corporate Records.......................................... 1
ARTICLE II.
SHAREHOLDERS
2.01 Annual Meeting............................................. 1
2.02 Special Meetings........................................... 2
2.03 Place of Meeting........................................... 4
2.04 Notices to Shareholders.................................... 4
(a) Required Notice........................................ 4
(b) Adjourned Meeting...................................... 5
(c) Waiver of Notice....................................... 5
(d) Contents of Notice..................................... 5
(e) Fundamental Transactions............................... 5
2.05 Fixing of Record Date...................................... 5
(a) Meetings............................................... 5
(b) Distributions.......................................... 5
2.06 Shareholder List........................................... 6
2.07 Quorum..................................................... 6
2.08 Conduct of Meetings........................................ 6
2.09 Proxies.................................................... 6
2.10 Voting of Shares........................................... 6
2.11 No Nominee Procedures...................................... 6
ARTICLE III.
BOARD OF DIRECTORS
3.01 General Powers............................................. 7
3.02 Resignations and Qualifications............................ 7
3.03 Regular Meetings........................................... 7
3.04 Special Meetings........................................... 7
3.05 Meetings By Telephone or Other Communication
Technology................................................. 7
3.06 Notice of Meetings......................................... 7
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3.07 Quorum..................................................... 7
3.08 Manner of Acting........................................... 8
3.09 Conduct of Meetings........................................ 8
3.10 Vacancies.................................................. 8
3.11 Compensation............................................... 8
3.12 Presumption of Assent...................................... 8
3.13 Committees................................................. 8
ARTICLE IV.
OFFICERS
4.01 Appointment................................................ 9
4.02 Resignation and Removal.................................... 9
4.03 Chairman of the Board...................................... 9
4.04 President.................................................. 9
4.05 Chief Operating Officer.................................... 9
4.06 Vice Chairman.............................................. 9
4.07 Shared Duties of Chairman of the Board,
President and Chief Operating Officer...................... 10
4.08 Vice Presidents............................................ 10
4.09 Secretary.................................................. 10
4.10 Treasurer.................................................. 10
4.11 Assistants and Acting Officers............................. 10
4.12 Salaries................................................... 10
ARTICLE V.
CERTIFICATES FOR SHARES AND THEIR TRANSFER
5.01 Certificates for Shares.................................... 11
5.02 Signature by Former Officers, Transfer Agent
or Registrar............................................... 11
5.03 Transfer of Shares......................................... 11
5.04 Restrictions on Transfer................................... 11
5.05 Lost,Destroyed or Stolen Certificates...................... 11
5.06 Consideration for Shares................................... 11
5.07 Stock Regulations.......................................... 11
ARTICLE VI.
WAIVER OF NOTICE
6.01 Shareholder Written Waiver................................. 12
6.02 Shareholder Waiver by Attendance........................... 12
6.03 Director Written Waiver.................................... 12
6.04 Director Waiver by Attendance.............................. 12
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ARTICLE VII.
ACTION WITHOUT MEETINGS
7.01 Director Action Without Meeting............................ 12
ARTICLE VIII.
INDEMNIFICATION
8.01 Indemnification for Successful Defense..................... 13
8.02 Other Indemnification...................................... 13
8.03 Written Request............................................ 13
8.04 Nonduplication............................................. 13
8.05 Determination of Right to Indemnification.................. 13
8.06 Advance of Expenses........................................ 14
8.07 Nonexclusivity............................................. 14
8.08 Court-Ordered Indemnification.............................. 15
8.09 Indemnification and Allowance of Expenses
of Employees and Agents.................................... 15
8.10 Insurance.................................................. 15
8.11 Securities Law Claims...................................... 15
8.12 Liberal Construction....................................... 16
8.13 Definitions Applicable to this Article..................... 16
ARTICLE IX.
SEAL
9.01 Seal....................................................... 17
ARTICLE X.
AMENDMENTS
10.01 By Shareholders............................................ 17
10.02 By Directors............................................... 17
10.03 Implied Amendments......................................... 17
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BYLAWS
OF
KOHL'S CORPORATION
ARTICLE I.
OFFICES; RECORDS
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. The address of the registered office may be changed from
time to time by any officer or by the registered agent. The office of the
registered agent of the corporation shall be identical to such registered
office.
1.03. Corporate Records. The following documents and records shall be kept
at the corporation's principal office or at such other reasonable location as
may be specified by the corporation:
(a) Minutes of shareholders' and Board of Directors' meetings and any
written notices thereof.
(b) Records of actions taken by the shareholders or directors without a
meeting.
(c) Records of actions taken by committees of the Board of Directors.
(d) Accounting records.
(e) Records of its shareholders.
(f) Current Bylaws.
(g) Written waivers of notice by shareholders or directors (if any).
(h) Written consents by shareholders or directors for actions without a
meeting (if any).
(i) Voting trust agreements (if any).
(j) Stock transfer agreements to which the corporation is a party or of
which it has notice (if any).
ARTICLE II.
SHAREHOLDERS
2.01. Annual Meeting. The annual meeting of the shareholders (an "Annual
Meeting") shall be held on such date and at such time 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 election of directors is not held on the day 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 meeting
of the shareholders as soon thereafter as may be convenient.
At an annual meeting of the shareholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, business must be (a) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors; (b) otherwise brought before the meeting by or at the
direction of the Board of Directors; or (c) brought before the meeting by a
shareholder pursuant to this Section 2.01.
Only persons who are nominated in accordance with the procedures set forth in
this Section 2.01 shall be eligible for election as directors, except as may
otherwise be provided by the terms of the corporation's Articles
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of Incorporation with respect to the rights of holders of any series of
Preferred Stock to elect directors. Nominations of persons for election to the
Board of Directors of the corporation may be made at a meeting of shareholders
by or at the direction of the Board of Directors or by any shareholder of the
corporation entitled to vote for the election of directors at the meeting who
complies with the procedures set forth in this bylaw.
For business to be properly brought before an annual meeting by a shareholder,
and for nominations by shareholders for the election of directors, the
shareholder must have given timely notice thereof in writing to the Secretary of
the corporation. All notices given pursuant to this Section shall be in writing
and must be received by the Secretary of the corporation not later than ninety
days prior to the anniversary date of the annual meeting of shareholders in the
immediately preceding year. All such notices shall include (i) a representation
that the person sending the notice is a shareholder of record and will remain
such through the Meeting Record Date (defined in Section 2.05); (ii) the name
and address, as they appear on the corporation's books, of such shareholder;
(iii) the class and number of the corporation's shares which are owned
beneficially and of record by such shareholder; and (iv) a representation that
such shareholder intends to appear in person or by proxy at such meeting to make
the nomination or move the consideration of other business set forth in the
notice. Notice as to proposals with respect to any business to be brought
before the meeting other than election of directors shall also set forth the
text of the proposal and may set forth any statement in support thereof that the
shareholder wishes to bring to the attention of the corporation, and shall
specify any material interest of such shareholder in such business. The person
providing the notice shall also be required to provide such further information
as may be requested by the corporation to comply with federal securities laws,
rules and regulations. Notice as to nominations shall set forth the name(s) of
the nominee(s), address and principal occupation or employment of each, a
description of all arrangements or understandings between the shareholder and
each nominee and any person or persons (naming such person or persons) pursuant
to which the nomination or nominations are to be made by the shareholder, the
written consent of each nominee to serve as a director if so elected and such
other information as would be required to be included in a proxy statement
soliciting proxies for the election of the nominee(s) of such shareholder.
The chairman of the meeting shall refuse to acknowledge the nomination of any
person or the consideration of any business not made in compliance with the
foregoing procedures.
2.02. Special Meetings. (a) A special meeting of shareholders (a "Special
Meeting") may be called only by the Board of Directors pursuant to a resolution
adopted by three-quarters (3/4) of the entire Board of Directors and shall be
called by the Board of Directors upon the demand, in accordance with this
Section 2.02, of the holders of record of shares representing at least 10% of
all the votes entitled to be cast on any issue proposed to be considered at the
Special Meeting.
(b) In order that the corporation may determine the shareholders entitled to
demand a Special Meeting, the Board of Directors may fix a record date to
determine the shareholders entitled to make such a demand (the "Demand Record
Date"). The Demand Record Date shall not precede the date upon which the
resolution fixing the Demand Record Date is adopted by the Board of Directors
and shall not be more than 10 days after the date upon which the resolution
fixing the Demand Record Date is adopted by the Board of Directors. Any
shareholder of record seeking to have shareholders demand a Special Meeting
shall, by sending written notice to the Secretary of the corporation by hand or
by certified or registered mail, return receipt requested, request the Board of
Directors to fix a Demand Record Date. The Board of Directors shall promptly,
but in all events within 30 days after the date on which a valid request to fix
a Demand Record Date is received, adopt a resolution fixing the Demand Record
Date and shall make a public announcement of such Demand Record Date. If no
Demand Record Date has been fixed by the Board of Directors within 30 days after
the date on which such request is received by the Secretary, the Demand Record
Date shall be the 30th day after the first day on which a valid written request
to set a Demand Record Date is received by the Secretary. To be valid, such
written request shall set forth the purpose or purposes for which the Special
Meeting is to be held, shall be signed by one or more shareholders of record (or
their duly authorized proxies or other representatives), shall bear the date of
signature of each such shareholder (or proxy or other representative) and shall
set forth all information about each such shareholder and about the beneficial
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owner or owners, if any, on whose behalf the request is made that would be
required to be set forth in a shareholder's notice described in Section 2.01.
Any business proposed to be brought before the meeting must be a subject for
which a special meeting must be called under Wisconsin law upon the demand of a
10% shareholder.
(c) In order for a shareholder or shareholders to demand a Special Meeting, a
written demand or demands for a Special Meeting by the holders of record as of
the Demand Record Date of shares representing at least 10% of all the votes
entitled to be cast on any issue proposed to be considered at the Special
Meeting must be delivered to the corporation. To be valid, each written demand
by a shareholder for a Special Meeting shall set forth the specific purpose or
purposes for which the Special Meeting is to be held (which purpose or purposes
shall be limited to the purpose or purposes set forth in the written request to
set a Demand Record Date received by the corporation pursuant to paragraph (b)
of this Section 2.02), shall be signed by one or more persons who as of the
Demand Record Date are shareholders of record (or their duly authorized proxies
or other representatives), shall bear the date of signature of each such
shareholder (or proxy or other representative), and shall set forth the name and
address, as they appear in the corporation's books, of each shareholder signing
such demand and the class or series and number of shares of the corporation
which are owned of record and beneficially by each such shareholder, shall be
sent to the Secretary by hand or by certified or registered mail, return receipt
requested, and shall be received by the Secretary not before and within 70 days
after the Demand Record Date.
(d) The corporation shall not be required to call a Special Meeting upon
shareholder demand unless, in addition to the documents required by paragraph
(c) of this Section 2.02, the Secretary receives a written agreement signed by
each Soliciting Shareholder (as defined herein), pursuant to which each
Soliciting Shareholder, jointly and severally, agrees to pay the corporation's
costs of holding the Special Meeting, including the costs of preparing and
mailing proxy materials for the corporation's own solicitation, provided that if
each of the resolutions introduced by any Soliciting Shareholder at such meeting
is adopted, and each of the individuals nominated by or on behalf of any
Soliciting Shareholder for election as director at such meeting is elected, then
the Soliciting Shareholders shall not be required to pay such costs. For
purposes of this paragraph (d), the following terms shall have the meanings set
forth below:
(i) "Affiliate" shall have the meaning assigned to such term in Rule 12b-2
promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(ii) "Participant in a Solicitation" shall have the meaning assigned to
such term in Item 4 of Schedule 14A promulgated under the Exchange Act.
(iii) "Person" shall mean any individual, firm, corporation, partnership,
joint venture, association, trust, unincorporated organization or other
entity.
(iv) "Proxy" shall have the meaning assigned to such term in Rule 14a-1
promulgated under the Exchange Act.
(v) "Solicitation" shall have the meaning assigned to such term in Rule
14a-1 promulgated under the Exchange Act.
(vi) "Soliciting Shareholder" shall mean, with respect to any Special
Meeting demanded by a shareholder or shareholders, any of the following
Persons:
(A) each shareholder signing any such demand;
(B) if the number of shareholders signing the demand or demands for a
meeting delivered to the corporation pursuant to paragraph (c) of this
Section 2.02 is more than 10, each Person who is or intends to be a
Participant in a Solicitation in connection with the Special Meeting (other
than a Solicitation of Proxies on behalf of the corporation); or
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(C) any Affiliate of a Soliciting Shareholder, if a majority of the
directors then in office determine, in good faith, that such Affiliate
should be required to sign the written notice described in paragraph (c) of
this Section 2.02 and/or the written agreement described in this paragraph
(d) in order to prevent the purposes of this Section 2.02 from being
evaded.
(e) Except as provided in the following sentence, any Special Meeting shall be
held at such hour and day as may be designated by the Board of Directors. In
the case of any Special Meeting called by the Board of Directors upon the demand
of shareholders (a "Demand Special Meeting"), the date of the Demand Special
Meeting shall be not more than 70 days after the Meeting Record Date (as defined
in Section 2.05 of these Bylaws); provided that in the event that the directors
then in office fail to designate an hour and date for a Demand Special Meeting
within 30 days after the date that valid written demands for such meeting by the
holders of record as of the Demand Record Date of shares representing at least
10% of all the votes entitled to be cast on any issue proposed to be considered
at the Special Meeting, as well as the agreement described in paragraph (d), are
delivered to the corporation (the "Delivery Date"), then such meeting shall be
held at 2:00 p.m. (local time) on the 100th day after the Delivery Date or, if
such 100th day is not a Business Day (as defined below), on the first preceding
Business Day. In fixing a meeting date for any Special Meeting, the Board of
Directors may consider such factors as it deems relevant within the good faith
exercise of its business judgment, including, without limitation, the nature of
the action proposed to be taken, the facts and circumstances surrounding any
demand for such meeting, and any plan of the Board of Directors to call an
Annual Meeting or a Special Meeting.
(f) The corporation may engage independent inspectors of elections to act as
an agent of the corporation for the purpose of promptly performing a ministerial
review of the validity of any purported written demand or demands for a Special
Meeting received by the Secretary. For the purpose of permitting the inspectors
to perform such review, no purported demand shall be deemed to have been
delivered to the corporation until the earlier of (i) 5 Business Days following
receipt by the Secretary of such purported demand and (ii) such date as the
independent inspectors certify to the corporation that the valid demands
received by the Secretary represent at least 10% of all the votes entitled to be
cast on each issue proposed to be considered at the Special Meeting. Nothing
contained in this paragraph shall in any way be construed to limit the ability
of the Board of Directors or any shareholder to contest the validity of any
demand, whether during or after such 5 Business Day period, or to take any other
action (including, without limitation, the commencement, prosecution or defense
of any litigation with respect thereto).
(g) Only business within the purpose described in the meeting notice given in
accordance with Section 2.04 of these Bylaws may be conducted at a Special
Meeting.
(h) For purposes of these Bylaws, "Business Day" shall mean any day other than
a Saturday, a Sunday or a day on which banking institutions in the State of
Wisconsin are authorized or obligated by law or executive order to close.
2.03. 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 any special meeting. If no designation is made, the place of
meeting shall be the principal office of the corporation. Any meeting may be
adjourned to reconvene at any place designated by vote of the Board of
Directors.
2.04. Notices to Shareholders.
(a) Required Notice. Written notice stating the place, day and hour of the
meeting and, in case of a Special Meeting, the purpose or purposes for which
the meeting is called, shall be delivered not less than ten (10) days nor more
than seventy (70) days before the date of the meeting (unless a different time
is provided by law or the Articles of Incorporation), by or at the direction
of the Chairman of the Board, the President, the Chief Operating Officer, the
Vice Chairman or the Secretary, to each shareholder entitled to vote at such
meeting or, for the fundamental transactions described in subsections (e)(l)
to (4) below (for which the
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Wisconsin Business Corporation Law requires that notice be given to
shareholders not entitled to vote), to all shareholders. If mailed, such
notice is effective when deposited in the United States mail, and shall be
addressed to the shareholder's address shown in the current record of
shareholders of the corporation, with postage thereon prepaid. At least
twenty (20) days' notice shall be provided if the purpose, or one of the
purposes, of the meeting is to consider a plan of merger or share exchange for
which shareholder approval is required by law, or the sale, lease, exchange or
other disposition of all or substantially all of the corporation's property,
with or without good will, otherwise than in the usual and regular course of
business.
(b) Adjourned Meeting. Except as provided in the next sentence, 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) Waiver of Notice. A shareholder may waive notice in accordance with
Article VI of these Bylaws.
(d) Contents of Notice. The notice of each Special Meeting shall include a
description of the purpose or purposes for which the meeting is called.
Except as otherwise provided in these Bylaws, in the Articles of
Incorporation, or in the Wisconsin Business Corporation Law, the notice of an
annual shareholder meeting need not include a description of the purpose or
purposes for which the meeting is called.
(e) Fundamental Transactions. If a purpose of any shareholder meeting is
to consider either: (1) a proposed amendment to the Articles of Incorporation
(including any restated articles); (2) a plan of merger or share exchange for
which shareholder approval is required by law; (3) the sale, lease, exchange
or other disposition of all or substantially all of the corporation's
property, with or without good will, otherwise than in the usual and regular
course of business; (4) the dissolution of the corporation; or (5) the removal
of a director, the notice must so state and in cases (1), (2) and (3) above
must be accompanied by, respectively, a copy or summary of the: (1) proposed
articles of amendment or a copy of the restated articles that identifies any
amendment or other change; (2) proposed plan of merger or share exchange; or
(3) proposed transaction for disposition of all or substantially all of the
corporation's property. If the proposed corporate action creates dissenters'
rights, the notice must state that shareholders and beneficial 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.
2.05. Fixing of Record Date. (a) Meetings. The Board of Directors may
fix in advance a date as the record date for any determination of shareholders
entitled to notice of, and to vote at, a shareholders' meeting, such date in
any case to be not more than seventy (70) days prior to the meeting (the
"Meeting Record Date"). In the case of any Demand Special Meeting, (i) the
Meeting Record Date shall be not later than the 30th day after the Delivery
Date and (ii) if the Board of Directors fails to fix the Meeting Record Date
within 30 days after the Delivery Date, then the close of business on such
30th day shall be the Meeting Record Date. When a determination of
shareholders entitled to vote at any meeting of shareholders has been made as
provided in these Bylaws, such determination shall be applied to any
adjournment thereof unless the Board of Directors fixes a new record date and
except as otherwise required by law. A new record date must be set if a
meeting is adjourned to a date more than 120 days after the date fixed for the
original meeting.
(b) Distributions. The Board may also fix in advance a date as the record
date for determining shareholders entitled to receive a dividend or
distribution. If no record date is fixed for the determination of
shareholders entitled to receive a share dividend or distribution (other than
a distribution involving a purchase, redemption or other acquisition of the
corporation's shares), the close of business on the day on which the
resolution of the Board of Directors is adopted declaring the dividend or
distribution shall be the record date.
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2.06. Shareholder List. 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 record of the shareholders entitled to notice of
such meeting, arranged by class or series of shares and showing the address of
and the number of shares held by each shareholder. The shareholder list shall
be available at the meeting and may be inspected by any shareholder or his or
her agent or attorney at any time during the meeting or any adjournment. Any
shareholder or his or her agent or attorney may inspect the shareholder list
beginning two (2) business days after the notice of the meeting is given and
continuing to the date of the meeting, at the corporation's principal office or
at a place identified in the meeting notice in the city where the meeting will
be held and, subject to Section 180.1602(2)(b) 3 to 5 of the Wisconsin Business
Corporation Law, may copy the list, during regular business hours and at his or
her expense, during the period that it is available for inspection hereunder.
The original stock transfer books and nominee certificates on file with the
corporation (if any) shall be prima facie evidence as to who are the
shareholders entitled to inspect the shareholder list 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
or in the Wisconsin Business Corporation Law, a majority of the votes entitled
to be cast by shares entitled to vote as a separate voting group on a matter,
represented in person or by proxy, shall constitute a quorum of that voting
group for action on that matter at a meeting of shareholders. 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 meeting.
2.08. Conduct of Meetings. The Chairman of the Board or, in his or her
absence, any Officer or Director chosen by the Board of Directors shall call the
meeting of the shareholders to order and shall act as Chairman of the meeting,
and the Secretary 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 in person or by proxy appointed in writing by the shareholder or
by his or her duly authorized attorney-in-fact. All proxy appointment forms
shall be filed with the Secretary or other officer or agent of the corporation
authorized to tabulate votes before or at the time of the meeting. Unless the
appointment form conspicuously states that it is irrevocable and the appointment
is coupled with an interest, a proxy appointment may be revoked at any time.
The presence of a shareholder who has filed a proxy appointment shall not of
itself constitute a revocation. No proxy appointment shall be valid after
eleven months from the date of its execution, unless otherwise expressly
provided in the appointment form. The Board of Directors shall have the power
and authority to make rules that are not inconsistent with the Wisconsin
Business Corporation Law as to the validity and sufficiency of proxy
appointments.
2.10. Voting of Shares. Each outstanding share shall be entitled to one (1)
vote on each matter submitted to a vote at a meeting of shareholders, except to
the extent that the voting rights of the shares are enlarged, limited or denied
by the Articles of Incorporation or the Wisconsin Business Corporation Law.
Shares of this corporation owned directly or indirectly by another corporation
are not entitled to vote if this corporation owns, directly or indirectly,
sufficient shares to elect a majority of the directors of such other
corporation. However, the prior sentence shall not limit the power of the
corporation to vote any shares, including its own shares, held by it in a
fiduciary capacity.
2.11. No Nominee Procedures. The corporation has not established, and
nothing in these Bylaws shall be deemed to establish, any procedure by which a
beneficial owner of the corporation's shares that are registered in the name of
a nominee is recognized by the corporation as the shareholder under Section
180.0723 of the Wisconsin Business Corporation Law.
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ARTICLE III.
BOARD OF DIRECTORS
3.01. General Powers. All corporate powers shall be exercised by or under
the authority of, and the business and affairs of the corporation shall be
managed under the direction of, its Board of Directors.
3.02. Resignations and Qualifications. A director may resign at any time by
delivering a written resignation to the Board of Directors, to the Chairman of
the Board, or to the corporation through the Secretary or otherwise. Directors
need not be residents of the State of Wisconsin or shareholders of the
corporation.
3.03. Regular Meetings. The Board of Directors may provide, by resolution,
the time and place, either within or without the State of Wisconsin, for the
holding of 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 or any two (2)
directors. Special meetings of any committee may be called by or at the request
of the foregoing persons or the Chairman of the committee. The persons calling
any special meeting of the Board of Directors or committee may fix any place,
either within or without the State of Wisconsin, as the place for holding any
special meeting called by them, and if no other place is fixed the place of
meeting shall be the principal office of the corporation in the State of
Wisconsin.
3.05. Meetings By Telephone or Other Communication Technology. (a) Any or
all directors may participate in a regular or special meeting or in a committee
meeting of the Board of Directors by, or conduct the meeting through the use of,
telephone or any other means of communication by which either: (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.
(b) If a meeting will be conducted through the use of any means described in
paragraph (a), all participating directors shall be informed that a meeting is
taking place at which official business may be transacted. A director
participating in a meeting by any means described in paragraph (a) is deemed to
be present in person at the meeting.
3.06. Notice of Meetings. Except as otherwise provided in the Articles of
Incorporation or the Wisconsin Business Corporation Law, notice of the date,
time and place of any special meeting of the Board of Directors and of any
special meeting of a committee of the Board shall be given orally or in writing
to each director or committee member at least 48 hours prior to the meeting.
The notice need not describe the purpose of the meeting. Notice may be
communicated in person, by telephone, telegraph or facsimile, or by mail or
private carrier. Oral notice is effective when communicated to the director or
to any person answering the director's business or home telephone, or when left
on the director's answering machine or voice-mail system at home or place of
business. Written notice is effective at the earliest of the following: (a)
when received; (b) five days after its deposit in the U.S. Mail, if mailed
postpaid and correctly addressed; (c) on the date shown on the return receipt,
if sent by registered or certified mail, return receipt requested, and the
receipt is signed by or on behalf of the addressee; (d) at the time a facsimile
transmission is completed, if sent by facsimile to the director's home or place
of business.
3.07. Quorum. Except as otherwise provided by the Wisconsin Business
Corporation Law, a majority of the number of directors specified in accordance
with the Articles of Incorporation shall constitute a quorum of the Board of
Directors. Except as otherwise provided by the Wisconsin Business Corporation
Law, a majority of the number of directors appointed to serve on a committee
shall constitute a quorum of the committee.
7
3.08. Manner of Acting. Except as otherwise provided by the Wisconsin
Business Corporation Law or the Articles of Incorporation, the affirmative vote
of a majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors or any committee thereof.
3.09. Conduct of Meetings. The Chairman of the Board, or in his or her
absence, any director chosen by the directors present, shall call meetings of
the Board of Directors to order and shall chair 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.
3.10. Vacancies. Any vacancy occurring in the Board of Directors shall be
filled in the manner provided in the Articles of Incorporation.
3.11. Compensation. The Board of Directors, irrespective of any personal
interest of any of its members, may fix the compensation of directors.
3.12. Presumption of Assent. A director who is present and is announced as
present at a meeting of the Board of Directors or a committee thereof at which
action on any corporate matter is taken shall be presumed to have assented to
the action taken unless (i) the director objects at the beginning of the meeting
or promptly upon his or her arrival to holding the meeting or transacting
business at the meeting; or (ii) the director's dissent or abstention from the
action taken is entered in the minutes of the meeting; or (iii) the director
delivers his or her written dissent or abstention to the presiding officer of
the meeting before the adjournment thereof or to the corporation immediately
after the adjournment of the meeting. Such right to dissent or abstain shall
not apply to a director who voted in favor of such action.
3.13. Committees. Unless the Articles of Incorporation otherwise provide,
the Board of Directors, by resolution adopted by the affirmative vote of a
majority of all the directors then in office, may create one (1) or more
committees, each committee to consist of two (2) or more directors as members,
which to the extent provided in the resolution as initially adopted, and as
thereafter supplemented or amended by further resolution adopted by a like vote,
may exercise the authority of the Board of Directors, except that no committee
may: (a) authorize distributions; (b) approve or propose to shareholders action
that the Wisconsin Business Corporation Law requires be approved by
shareholders; (c) fill vacancies on the Board of Directors or any of its
committees, except that the Board of Directors may provide by resolution that
any vacancies on a committee shall be filled by the affirmative vote of a
majority of the remaining committee members; (d) amend the Articles of
Incorporation; (e) adopt, amend or repeal Bylaws; (f) approve a plan of merger
not requiring shareholder approval; (g) authorize or approve reacquisition of
shares, except according to a formula or method prescribed by the Board of
Directors; or (h) authorize or approve the issuance or sale or contract for sale
of shares, or determine the designation and relative rights, preferences and
limitations of a class or series of shares, except within limits prescribed by
the Board of Directors. 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
Chairman of the Board or the Chairman of such meeting. Each such committee
shall fix its own rules (consistent with the Wisconsin Business Corporation Law,
the Articles of Incorporation and these Bylaws) 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. Unless otherwise provided by
the Board of Directors in creating a committee, a committee may employ counsel,
accountants and other consultants to assist it in the exercise of authority.
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ARTICLE IV.
OFFICERS
4.01. Appointment. The principal officers may include a Chairman of the
Board, a President, a Chief Operating Officer, Vice Chairman, a Secretary, a
Treasurer and such other officers if any, as may be deemed necessary by the
Board of Directors, each of whom shall be appointed by the Board of Directors.
The officers may also include one or more Vice Presidents who may be appointed
and have such designations as are determined by or at the direction of the Board
of Directors or the Chairman of the Board, President, Chief Operating Officer or
Vice Chairman. Any two or more offices may be held by the same person.
4.02. Resignation and Removal. An officer shall hold office until he or she
resigns, dies, is removed hereunder, or a different person is appointed to the
office. An officer may resign at any time by delivering an appropriate written
notice to the corporation. The resignation is effective when the notice is
delivered, unless the notice specifies a later effective date and the
corporation accepts the later effective date. Any officer may be removed by the
Board of Directors with or without cause and notwithstanding the contract
rights, if any, of the person removed. The Chairman of the Board, President,
Chief Operating Officer or Vice Chairman may also remove any of the other
officers with or without cause and notwithstanding the contract rights, if any,
of the person removed. Except as provided in the preceding sentence, the
resignation or removal is subject to any remedies provided by any contract
between the officer and the corporation or otherwise provided by law.
Appointment shall not of itself create contract rights.
4.03. Chairman of the Board. The Chairman of the Board shall be the chief
executive officer of the corporation; he shall preside at all meetings of the
shareholders, Board of Directors and Executive Committee of the Board of
Directors, if any; he shall have general and active management of the business
of the corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect.
4.04. President. The President shall have charge of the Kohl's Department
Stores, Inc. general merchandising and marketing functions. He shall, in the
absence of the Chairman of the Board, preside at all meetings of shareholders,
Board of Directors and the Executive Committee of the Board of Directors, if
any. During the absence of the Chairman of the Board, he shall exercise the
functions of the chief executive officer of the corporation. 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. He shall perform such other duties as may be prescribed from
time to time by the Chairman of the Board or the Board of Directors.
4.05. Chief Operating Officer. The Chief Operating Officer shall be the
chief operating officer of the corporation. He shall supervise the day to day
operations of the corporation's business, manage the administrative and
operating affairs of the corporation, and direct and assign duties to those
officers and agents of the corporation who are engaged in the administrative and
operating affairs of the corporation. 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. The Chief Operating Officer shall perform such other duties as may be
prescribed from time to time by the Chairman of the Board or the Board of
Directors.
4.6. Vice Chairman. The Vice Chairman shall have charge of the operations of
the Kohl's Department Stores, Inc. department stores and human resources
department. 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
9
their power, duties and compensation and to delegate authority to them. He shall
perform such other duties as may be prescribed from time to time by the Chairman
of the Board or the Board of Directors.
4.07. Shared Duties of Chairman of the Board, President, Chief Operating
Officer and Vice Chairman. The Chairman of the Board, President, Chief
Operating Officer and Vice Chairman are each severally authorized 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 directed by
the Board of Directors, the Chairman of the Board, President, Chief Operating
Officer and Vice Chairman may authorize any Vice President or other officer or
agent of the corporation to sign, execute and acknowledge such documents or
instruments in his or her place and stead.
4.08. Vice Presidents. Any Vice President (including any Executive Vice
President, Senior Vice President or other Vice President, however designated)
may sign, with the Secretary, certificates for shares of the corporation; and
shall have charge of such divisions or departments of the corporation and
perform such other duties and have such authority as from time to time may be
delegated or assigned to him or her by the Chairman of the Board, President,
Chief Operating Officer, Vice Chairman or 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 the Vice President's authority to act in the
stead of the Chairman of the Board, President or Chief Operating Officer or Vice
Chairman.
4.09. Secretary. The Secretary shall: (a) keep (or cause to be kept) regular
minutes of all meetings of the shareholders, the Board of Directors and any
committees 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 Bylaws 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 which are
authorized to be executed on behalf of the corporation under its seal; (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 certificates for shares of the corporation, the issuance of which shall
have been authorized by resolution of the Board of Directors; (f) have general
charge of the stock transfer books of the corporation; and (g) in general
perform all duties incident to the office of Secretary and have such other
duties and exercise such authority as from time to time may be delegated or
assigned to him or her by the Chairman of the Board or the Board of Directors.
4.10. Treasurer. The Treasurer shall: (a) have charge and custody of 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 depositories as shall be selected by the
corporation; 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 or her by the Chairman of
the Board, President, Chief Operating Officer or by the Board of Directors.
4.11. Assistants and Acting Officers. The Board of Directors and the
Chairman of the Board, President, Chief Operating Officer and Vice Chairman
shall each have the power to appoint any person to act as assistant to any
officer, or as agent for the corporation in the officer's 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 shall have the power to perform all the duties of the office to
which that person is so appointed to be assistant, or as to which he or she is
so appointed to act, except as such power may be otherwise defined or restricted
by the Board of Directors, Chairman of the Board, President, Chief Operating
Officer or Vice Chairman.
4.12. Salaries. The salaries of the Chairman of the Board, President, Chief
Operating Officer and Vice Chairman shall be fixed from time to time by the
Board of Directors or by a duly authorized committee thereof,
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and no officer shall be prevented from receiving such salary by reason of the
fact that such officer is also a director of the corporation.
ARTICLE V.
CERTIFICATES FOR SHARES AND THEIR TRANSFER
5.01. Certificates for Shares. All shares of this corporation shall be
represented by certificates. 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, either manually
or in facsimile, by any one or more of the Chairman of the Board, the President,
the Chief Operating Officer, the Vice Chairman or a Vice President. 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 5.05.
5.02. Signature by Former Officer, Transfer Agent or Registrar. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon any certificate for shares has ceased to be such officer,
transfer agent or registrar before such certificate is issued, the certificate
may be issued by the corporation with the same effect as if that person were
still an officer, transfer agent or registrar at the date of its issue.
5.03. Transfer of Shares. Prior to due presentment of a certificate for
shares for registration of transfer, and unless the corporation has established
a procedure by which a beneficial owner of shares held by a nominee is to be
recognized by the corporation as the shareholder, the corporation may treat the
registered owner of such shares as the person exclusively entitled to vote, to
receive notifications and otherwise to have and exercise all the rights and
power of an owner. The corporation may require reasonable assurance that all
transfer endorsements are genuine and effective and in compliance with all
regulations prescribed by or under the authority of the Board of Directors.
5.04. Restrictions on Transfer. The face or reverse side of each certificate
representing shares shall bear a conspicuous notation of any restriction upon
the transfer of such shares imposed by the corporation.
5.05. Lost, Destroyed or Stolen Certificates. Where the owner claims that
his or her certificate for shares has been lost, destroyed or wrongfully taken,
a new certificate shall be issued in place thereof if the owner (a) so requests
before the corporation has notice that such shares have been acquired by a bona
fide purchaser; and (b) if required by the corporation, files with the
corporation a sufficient indemnity bond; and (c) satisfies such other reasonable
requirements as may be prescribed by or under the authority of the Board of
Directors.
5.06. Consideration for Shares. The shares of the corporation may be issued
for such consideration as shall be fixed from time to time and determined to be
adequate by the Board of Directors, provided that any shares having a par value
shall not be issued for a consideration less than the par value thereof. The
consideration may consist of any tangible or intangible property or benefit to
the corporation, including cash, promissory notes, services performed, contracts
for services to be performed, or other securities of the corporation. When the
corporation receives the consideration for which the Board of Directors
authorized the issuance of shares, such shares shall be deemed to be fully paid
and nonassessable.
5.07. Stock Regulations. The Board of Directors shall have the power and
authority to make all such rules and regulations not inconsistent with the
statutes of the State of Wisconsin as it may deem expedient concerning the
11
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 registrars.
ARTICLE VI.
WAIVER OF NOTICE
6.01. Shareholder Written Waiver. A shareholder may waive any notice
required by the Wisconsin Business Corporation Law, the Articles of
Incorporation or these Bylaws before or after the date and time stated in the
notice. The waiver shall be in writing and signed by the shareholder entitled
to the notice, shall contain the same information that would have been required
in the notice under the Wisconsin Business Corporation Law except that the time
and place of meeting need not be stated, and shall be delivered to the
corporation for inclusion in the corporate records.
6.02. Shareholder Waiver by Attendance. A shareholder's attendance at a
meeting, in person or by proxy, waives objection to both of the following:
(a) Lack of notice or defective notice of the meeting, unless the shareholder
at the beginning of the meeting or promptly upon arrival objects to holding
the meeting or transacting business at the meeting.
(b) Consideration of a particular matter at the meeting that is not within the
purpose described in the meeting notice, unless the shareholder objects to
considering the matter when it is presented.
6.03. Director Written Waiver. A director may waive any notice required by
the Wisconsin Business Corporation Law, the Articles of Incorporation or these
Bylaws before or after the date and time stated in the notice. The waiver shall
be in writing, signed by the director entitled to the notice and retained by the
corporation.
6.04. Director Waiver by Attendance. A director's attendance at or
participation in a meeting of the Board of Directors or any committee thereof
waives any required notice to him or her of the meeting unless the director at
the beginning of the meeting or promptly upon his or her arrival objects to
holding the meeting or transacting business at the meeting and does not
thereafter vote for or assent to action taken at the meeting.
ARTICLE VII.
ACTION WITHOUT MEETINGS
7.01. Director Action Without Meeting. Unless the Articles of Incorporation
provide otherwise, action required or permitted by the Wisconsin Business
Corporation Law to be taken at a Board of Directors meeting or committee meeting
may be taken without a meeting if the action is taken by all members of the
Board or committee. The action shall be evidenced by one or more written
consents describing the action taken, signed by each director and retained by
the corporation. Action taken hereunder is effective when the last director
signs the consent, unless the consent specifies a different effective date. A
consent signed hereunder has the effect of a unanimous vote taken at a meeting
at which all directors or committee members were present, and may be described
as such in any document.
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ARTICLE VIII.
INDEMNIFICATION
8.01. Indemnification for Successful Defense. Within twenty (20) days after
receipt of a written request pursuant to Section 8.03, the corporation shall
indemnify a director or officer, to the extent he or she has been successful on
the merits or otherwise in the defense of a proceeding, for all reasonable
expenses incurred in the proceeding if the director or officer was a party
because he or she is a director or officer of the corporation.
8.02. Other Indemnification. (a) In cases not included under Section 8.01,
the corporation shall indemnify a director or officer against all liabilities
and expenses incurred by the director or officer in a proceeding to which the
director or officer was a party because he or she is a director or officer of
the corporation, unless liability was incurred because the director or officer
breached or failed to perform a duty he or she owes to the corporation and the
breach or failure to perform constitutes any of the following:
(1) 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.
(2) A violation of criminal law, unless the director or officer had
reasonable cause to believe that his or her conduct was lawful or no
reasonable cause to believe that his or her conduct was unlawful.
(3) A transaction from which the director or officer derived an improper
personal profit.
(4) Willful misconduct.
(b) Determination of whether indemnification is required under this Section
shall be made pursuant to Section 8.05.
(c) 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 Section.
8.03. Written Request. A director or officer who seeks indemnification under
Sections 8.01 or 8.02 shall make a written request to the corporation.
8.04. Nonduplication. The corporation shall not indemnify a director or
officer under Sections 8.01 or 8.02 if the director or officer has previously
received indemnification or allowance of expenses from any person, including the
corporation, in connection with the same proceeding. However, the director or
officer has no duty to look to any other person for indemnification.
8.05. Determination of Right to Indemnification. (a) 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 shall select one of the following means for
determining his or her right to indemnification:
(1) By a majority vote of a quorum of the Board of Directors consisting of
directors not at the time parties to the same or related proceedings. If a
quorum of disinterested directors cannot be obtained, by majority vote of a
committee duly appointed by the Board of Directors and consisting solely of
two (2) or more directors who are 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.
13
(2) By independent legal counsel selected by a quorum of the Board of
Directors or its committee in the manner prescribed in sub. (1) 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.
(3) By a panel of three (3) arbitrators consisting of one arbitrator
selected by those directors entitled under sub. (2) to select independent
legal counsel, one arbitrator selected by the director or officer seeking
indemnification and one arbitrator selected by the two (2) arbitrators
previously selected.
(4) By an affirmative vote of shares represented at a meeting of
shareholders at which a quorum of the voting group entitled to vote thereon is
present. 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.
(5) By a court under Section 8.08.
(6) By any other method provided for in any additional right to
indemnification permitted under Section 8.07.
(b) In any determination under (a), the burden of proof is on the corporation
to prove by clear and convincing evidence that indemnification under Section
8.02 should not be allowed.
(c) A written determination as to a director's or officer's indemnification
under Section 8.02 shall be submitted to both the corporation and the director
or officer within 60 days of the selection made under (a).
(d) If it is determined that indemnification is required under Section 8.02,
the corporation shall pay all liabilities and expenses not prohibited by Section
8.04 within ten (10) days after receipt of the written determination under (c).
The corporation shall also pay all expenses incurred by the director or officer
in the determination process under (a).
8.06. Advance of Expenses. Within ten (10) days after receipt of a written
request by a director or officer who is a party to a proceeding, the corporation
shall pay or reimburse his or her reasonable expenses as incurred if the
director or officer provides the corporation with all of the following:
(1) A written affirmation of his or her good faith belief that he or she
has not breached or failed to perform his or her duties to the corporation.
(2) A written undertaking, executed personally or on his or her behalf, to
repay the allowance to the extent that it is ultimately determined under
Section 8.05 that indemnification under Section 8.02 is not required and that
indemnification is not 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 or her ability to repay the
allowance. The undertaking may be unsecured.
8.07. Nonexclusivity. (a) Except as provided in (b), Sections 8.01, 8.02 and
8.06 do not preclude any additional right to indemnification or allowance of
expenses that a director or officer may have under any of the following:
(1) The Articles of Incorporation.
(2) A written agreement between the director or officer and the
corporation.
(3) A resolution of the Board of Directors.
14
(4) A resolution, after notice, adopted by a majority vote of all of the
corporation's voting shares then issued and outstanding.
(b) Regardless of the existence of an additional right under (a), the
corporation shall not indemnify a director or officer, or permit a director or
officer to retain any allowance of expenses 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 or she owes to the corporation which constitutes conduct under
Section 8.02(a)(1), (2), (3) or (4). A director or officer who is a party to
the same or related proceedings for which indemnification or an allowance of
expenses is sought may not participate in a determination under this subsection.
(c) Sections 8.01 to 8.14 do not affect the corporation's power to pay or
reimburse expenses incurred by a director or officer in any of the following
circumstances.
(1) As a witness in a proceeding to which he or she is not a party.
(2) As a plaintiff or petitioner in a proceeding because he or she is or
was an employee, agent, director or officer of the corporation.
8.08. Court-Ordered Indemnification. (a) Except as provided otherwise by
written agreement between the director or officer and the corporation, a
director or officer who is a party to a proceeding may apply for indemnification
to the court conducting the proceeding or to another court of competent
jurisdiction. Application shall be made for an initial determination by the
court under Section 8.05(a)(5) or for review by the court of an adverse
determination under Section 8.05(a)(l), (2), (3), (4) or (6).
(b) If the court determines that the director or officer is entitled to
indemnification, the corporation shall pay the director's or officer's expenses
incurred to obtain the court-ordered indemnification.
8.09. Indemnification and Allowance of Expenses of Employees and Agents. The
corporation shall indemnify an employee of the corporation who is not a director
or officer of the corporation, to the extent that he or she has been successful
on the merits or otherwise in defense of a proceeding, for all reasonable
expenses incurred in the proceeding if the employee was a party because he or
she was an employee of the corporation. In addition, the corporation may
indemnify and allow reasonable expenses of an employee or agent who is not a
director or officer of the corporation to the extent provided by the Articles of
Incorporation or these Bylaws, by general or specific action of the Board of
Directors or by contract.
8.10. Insurance. The corporation may purchase and maintain insurance on
behalf of an individual who is an employee, agent, director or officer of the
corporation against liability asserted against or incurred by the individual in
his or her capacity as an employee, agent, director or officer, regardless of
whether the corporation is required or authorized to indemnify or allow expenses
to the individual against the same liability under Sections 8.01, 8.02, 8.06,
8.07 and 8.09.
8.11. Securities Law Claims.
(a) Pursuant to the public policy of the State of Wisconsin, the
corporation shall provide indemnification and allowance of expenses and may
insure for any liability incurred in connection with a proceeding involving
securities regulation described under (b) to the extent required or permitted
under Sections 8.01 to 8.10.
(b) Sections 8.01 to 8.10 apply, to the extent applicable to any other
proceeding, to any proceeding involving a federal or state statute, rule or
regulation regulating the offer, sale or purchase of securities, securities
brokers or dealers, or investment companies or investment advisers.
15
8.12. Liberal Construction. In order for the corporation to obtain and
retain qualified directors, officers and employees, the foregoing provisions
shall be liberally administered in order to afford maximum indemnification of
directors, officers and, where Section 8.09 of these Bylaws applies, employees.
The indemnification above provided for shall be granted in all applicable cases
unless to do so would clearly contravene law, controlling precedent or public
policy.
8.13. Definitions Applicable to this Article. For purposes of this Article:
(a) "Affiliate" shall include, without limitation, any corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise
that directly or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the corporation.
(b) "Corporation" means this corporation and any domestic or foreign
predecessor of this corporation where the predecessor corporation's existence
ceased upon the consummation of a merger or other transaction.
(c) "Director or officer" means any of the following:
(1) An individual who is or was a director or officer of this
corporation.
(2) An individual who, while a director or officer of this 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.
(3) An individual who, while a director or officer of this 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 a director or officer.
For purposes of this Article, it shall be conclusively presumed that any
director or officer serving as a director, officer, partner, trustee, member
of any governing or decision-making committee, employee or agent of an
affiliate shall be so serving at the request of the corporation.
(d) "Expenses" include fees, costs, charges, disbursements, attorney fees
and other expenses incurred in connection with a proceeding.
(e) "Liability" includes the obligation to pay a judgment, settlement,
penalty, assessment, forfeiture or fine, including an excise tax assessed with
respect to an employee benefit plan, and reasonable expenses.
(f) "Party" includes an individual who was or is, or who is threatened to
be made, a named defendant or respondent in a proceeding.
(g) "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 and which is brought by or in the right of the corporation or by
any other person.
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ARTICLE IX.
SEAL
9.01. Seal. The Board of Directors may provide a corporate seal which may be
circular in form and have inscribed thereon the name of the corporation and the
state of incorporation and the words "Corporate Seal."
ARTICLE X.
AMENDMENTS
10.01. By Shareholders. These Bylaws may be amended or repealed and new
Bylaws may be adopted by the shareholders.
10.02. By Directors. Except as the Articles of Incorporation may otherwise
provide, these Bylaws may also be amended or repealed and new Bylaws may be
adopted by the Board of Directors by the vote provided in Section 3.08, but (a)
no Bylaw adopted by the shareholders shall be amended, repealed or readopted by
the Board of Directors if the Bylaw so adopted so provides and (b) a Bylaw
adopted or amended by the shareholders that fixes a greater or lower quorum
requirement or a greater voting requirement for the Board of Directors than
otherwise is provided in the Wisconsin Business Corporation Law may not be
amended or repealed by the Board of Directors unless the Bylaw expressly
provides that it may be amended or repealed by a specified vote of the Board of
Directors. Action by the Board of Directors to adopt or amend a Bylaw that
changes the quorum or voting requirement for the Board of Directors must meet
the same quorum requirement and be adopted by the same vote required to take
action under the quorum and voting requirement then in effect, unless a
different voting requirement is specified as provided by the preceding sentence.
A Bylaw that fixes a greater or lower quorum requirement or a greater voting
requirement for shareholders or voting groups of shareholders than otherwise is
provided in the Wisconsin Business Corporation Law may not be adopted, amended
or repealed by the Board of Directors.
10.03. Implied Amendments. Any action taken or authorized by the
shareholders or by the Board of Directors, which would be inconsistent with the
Bylaws then in effect but is taken or authorized by a vote that would be
sufficient to amend the Bylaws so that the Bylaws would be consistent with such
action, shall be given the same effect as though the Bylaws 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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