EXHIBIT 3.2
BY-LAWS
OF
THE NORTHWESTERN MUTUAL
LIFE INSURANCE COMPANY
MILWAUKEE, WISCONSIN
As amended
DECEMBER 4, 2002
100
BY-LAWS
OF
THE NORTHWESTERN MUTUAL
LIFE INSURANCE COMPANY
AS AMENDED
DECEMBER 4, 2002
ARTICLE I
MEETINGS OF MEMBERS; VOTING BY MEMBERS;
NOMINATIONS OF BOARD CANDIDATES
Section 1.1 ANNUAL MEETINGS.
An annual meeting of the members of the Company shall be held at such
time during normal business hours as may be fixed by the board of trustees (the
"board") or executive committee for the purpose of electing trustees and for the
transaction of such other business as may come before the meeting. The board or
executive committee may postpone the date of the annual meeting for not more
than 60 days, but such postponement shall not change the record date for such
annual meeting.
Section 1.2 SPECIAL MEETINGS.
A special meeting of members may be called by the president, the board,
the executive committee or members having 5% of the votes entitled to be cast at
such meeting.
Section 1.3 PLACE OF MEETINGS.
The board may designate any place, either within or without the State
of Wisconsin, as the place of any annual meeting or of any special meeting
called by the board. If no designation is made or if a special meeting is
otherwise called, the place of meeting shall be the principal office of the
Company.
Section 1.4 NOTICE OF MEETINGS.
Notice of the time and place of an annual or special meeting shall be
published once in each of 2 weeks, the first publication to be not more than 120
and the second publication to be not less than 10 days prior to the date of the
meeting, in at least 2 newspapers of general circulation, one published in the
City of Madison, Wisconsin, and one published in the City of Milwaukee,
Wisconsin, and in such other newspapers, if any, as the board or executive
committee may determine. Written notice of the time and place of an annual or
special meeting shall also be given by mailing a copy thereof, not more than 120
nor less than 10 days prior to the date of the meeting, to the policyholders
constituting substantially all of the members entitled to vote at the meeting.
In the case of a special meeting or when required by law, the published and
mailed notice of meeting shall include a statement of the purpose or purposes
for which the meeting is to be held. In case the date of the annual meeting is
postponed after published and mailed notices have begun, a published notice of
the postponement shall be made as in the case of the initial published notice
but no mailed notice of the postponement need be given.
Section 1.5 QUORUM.
Members having at least 5% of the votes entitled to be cast at any
meeting, present in person or by proxy at such meeting, shall constitute a
quorum at such
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meeting. If a quorum is not present at any meeting, a majority of the members
present may adjourn the meeting from time to time without further notice.
Section 1.6 VOTING.
(a) PROCEDURES. All voting by members at annual and special
meetings shall be in person or by proxy executed in writing by
the member or his duly authorized attorney-in-fact and
delivered to the secretary of the Company on or before a day
specified in the notice of meeting which shall be at least 5
days prior to the date of the meeting. A majority of the votes
entitled to be cast by the members present in person or by
proxy at a meeting at which a quorum is present shall be
sufficient for the election of any trustee or for the adoption
of any other matter voted on at such meeting unless a greater
portion is required by law. Unless sooner revoked, proxies
shall be valid for 11 months from the date of execution and
for such additional period, if any, as may be provided
therein.
(b) FURNISHING PROXIES AND OTHER MATERIAL. The Company may include
the notice of meeting pursuant to Section 1.4 with or as a
part of its annual report for the preceding year or may send
such notice separately. The Company may provide proxies to any
or all of the members together with such information as the
Company deems pertinent with respect to the candidates or
matters being voted upon at the meeting.
(c) EFFECT OF FURNISHING PROXIES. The fact that the Company, by
mail or otherwise, furnishes a proxy to any person shall not
constitute nor be construed as an admission of the validity of
any policy or contract or that such person is a member
entitled to vote at the meeting; and such fact shall not be
competent evidence in any action or proceeding in which the
validity of any policy or contract or any claim under it is at
issue.
(d) VOTING INSPECTORS. Prior to each meeting of members the board
shall appoint, from among members who are not trustees,
candidates for trustee, officers, employees or agents of the
Company, 1 or more voting inspectors and shall fix their fees.
If an inspector so appointed is unable or unwilling to act the
chief executive officer may appoint a substitute from among
members eligible as aforesaid. The Company shall provide such
clerical and mechanical assistance to the inspectors as they
may reasonably require and shall pay the fees and reasonable
expenses of the inspectors.
(e) TABULATION OF VOTING. All voting at a meeting of members,
including voting by holders of proxies, shall be by written
ballot. The votes shall be tabulated by the voting inspectors
and shall be subject to such verification and ascertainment of
the validity thereof and of the qualification of the voters as
the inspectors deem appropriate. The inspectors may employ
such mechanical equipment as they deem advisable to assist in
the tabulation. In the absence of challenge the inspectors may
assume that the signature appearing on a proxy or ballot is
the valid signature of a member entitled to vote, that any
person signing in a representative capacity is duly authorized
so to do, and that the proxy, if not older than
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permitted thereby, is valid. After the tabulation has been
completed, all proxies and ballots shall be placed in sealed
packages and preserved by the secretary of the Company for at
least 4 months from the date of the meeting.
(f) CERTIFICATE OF ELECTION. Promptly after each meeting of
members the inspectors shall sign and file with the secretary
of the Company and the Wisconsin Commissioner of Insurance a
certificate of the results of the voting at such meeting.
Section 1.7 VOTING RIGHTS.
(a) RECORD DATE. Only those persons who are members of the Company
at the close of business on the record date for a meeting of
members shall be entitled to vote at such meeting. The record
date for an annual or special meeting shall be such business
day not more than 120 days prior to the date of the meeting as
may be established by the board or executive committee.
(b) NUMBER OF VOTES. Each member shall be entitled to one vote on
each matter presented at a meeting for a vote by members,
regardless of the number or amount of, or the number of lives
insured by, policies or contracts owned by such member.
(c) ELIGIBILITY. All questions concerning the eligibility of
members to vote and the validity of the votes cast at any
meeting shall be determined by the voting inspectors on the
basis of the records of the Company. If a question concerning
eligibility to vote arises as between a person identified as
the owner of the policy or contract on the records of the
Company and a person otherwise claiming to control such policy
or contract, the person shown on the records of the Company as
the owner at the close of business on the record date for the
meeting shall be deemed to be the member entitled to vote at
such meeting.
Section 1.8 NOMINATIONS OF CANDIDATES FOR THE BOARD.
(a) FILING OF BOARD'S PROPOSED NOMINEES. Before each annual
meeting of members, the board shall propose for nomination at
such meeting a member as candidate for every vacancy on the
board to be filled at the ensuing annual meeting as provided
in Section 2.2 and shall cause to be filed with the records of
the Company and the Wisconsin Commissioner of Insurance a
certificate of such proposed nomination signed by the
secretary of the Company, giving the names, occupations and
addresses of such proposed nominees and the terms for which
they are to be nominated and stating that such proposed
nominees meet the eligibility requirements then pertaining to
trustees prescribed by Section 2.3(a) and will accept office
if elected.
(b) SUBSTITUTION. In the event any candidate proposed by the board
for nomination pursuant to Section (a) above withdraws as a
candidate prior to the annual meeting, the board may propose a
member for nomination in substitution for the withdrawing
candidate and shall make such filings
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as are required pursuant to Section (a) above promptly after
such substitution.
(c) NOMINATION AT MEETING. Subject to Section 2.3(a), nominations
of members as candidates for any vacancy on the board to be
filled at an annual meeting of members, including nomination
of the board's proposed nominees, shall be made at the
meeting; and such nomination may be made by any member who is
present in person or by proxy and is entitled to vote at such
meeting.
Section 1.9 INSPECTION OF RECORDS.
The Company shall keep on file after the record date for each meeting
and until the tabulation of voting at such meeting has been completed, a record
for voting purposes of the names and addresses of the persons shown as the
premium payers as of the close of business on such record date with respect to
the policies and contracts of the members. Subject to provisions of the
Wisconsin Statutes and with due regard to the Company's status as an insurance
company and financial institution, a member, or his agent or attorney, may
inspect such record at any reasonable time for the purpose of communicating with
other members in regard to nomination or election of candidates for the board or
any other matter being submitted for vote at a meeting of the members. No person
may, directly or indirectly, use any information obtained from any such
inspection for any other purpose, and the Company may impose reasonable rules to
insure that such information is not used for any other purpose.
ARTICLE II
BOARD OF TRUSTEES AND COMMITTEES
Section 2.1 GENERAL POWERS.
The business and affairs of the Company shall be managed by the board.
Section 2.2 COMPOSITION.
(a) NUMBER AND TENURE. The number of trustees of the Company
shall be not more than 30 or if permitted by law such other
number, not less than 9, as the board may establish from time
to time. The regular term of office of a trustee shall
commence immediately after the annual meeting of members at
which such trustee is elected and end on the date of the
fourth succeeding annual meeting of members. The vacancies on
the board to be filled at each annual meeting of members shall
be the offices of those trustees whose regular terms are
scheduled to expire on the date of such meeting and the
offices of any other trustees that become vacant during the 12
months ending on the January 1 preceding such meeting. All
elections shall be for the regular term except those to fill
the offices of trustees that become vacant during the 12
months ending on the January 1 preceding such meeting which
shall be for the unexpired regular term of such vacant
offices. Except as provided in paragraph (c), each trustee
elected at an annual meeting shall hold office for the term
for which elected and until his successor has been elected or
appointed and qualified.
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(b) CLASSIFICATION. Trustees shall be divided into 4 classes,
which may but need not be equal, according to the expiration
date of the regular terms of offices. The regular term of
office of one of the classes of trustees shall expire on the
date of each annual meeting of members. On July 26, 1972, the
4 classes of trustees shall be those whose regular terms are
scheduled to expire on the date of the annual meeting of
members in 1973, 1974, 1975 and 1976, respectively.
(c) RETIREMENT. The board may by resolution provide for mandatory
retirement of trustees and members of the committees of the
board. A trustee or member of a committee of the board shall
be retired on the date provided in the resolution even though
elected for a term extending beyond such date.
(d) LIMITS ON TENURE. The board may by resolution provide for
limitations on the tenure in office of trustees.
Section 2.3 QUALIFICATIONS.
(a) CITIZENSHIP, AGE, OTHER OFFICES. Only those members of the
Company shall be eligible to be nominated or elected or to
serve as a trustee who are citizens of the United States of
America, are not less than 25 years of age nor more than the
retirement age, if any, as then established by resolution of
the board pursuant to Section 2.2(c), are not ineligible under
paragraph (b) and have no relationship which would create a
conflict of interest or impair independence of judgment in
regard to the affairs of the Company in violation of the rules
then prescribed by the board or executive committee. Except
for the chairman of the board, the president and 2 other
executive officers, no trustee shall be an executive officer,
officer, other employee or agent of the Company.
(b) NON-ATTENDANCE. The failure of a trustee to attend at least 1
meeting of the board within a period of 9 consecutive calendar
months shall thereupon result in an automatic forfeiture of
his office, unless such forfeiture is avoided as provided
below; and such trustee shall not be eligible to be nominated
or elected or to serve as a trustee until at least 6 months
have elapsed following such forfeiture. Any such forfeiture
shall result in a vacancy to be filled as in the case of other
vacancies on the board. A trustee may avoid such forfeiture if
during said 9 month period he attends a meeting of the
executive committee even though not a member of that
committee, but no trustee may so avoid forfeiture more than
once during the term he is then serving without the express
approval of the executive committee.
Section 2.4 COMMITTEES OF THE BOARD.
The standing committees of the board shall be an executive committee
and a finance committee and such other standing committees as the board may
establish and designate as such. The board may from time to time establish such
other committees as it deems advisable; and the members of such other committees
shall be appointed by or in the manner provided by the board. Any trustee may
attend and participate in any meeting of a standing committee of the board,
except that no trustee who is not a
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member of or an alternate on a standing committee may vote upon any matter
before such committee.
Section 2.5 EXECUTIVE COMMITTEE.
(a) COMPOSITION AND POWERS. The executive committee shall consist
of such number of trustees as the board may determine, to be
elected annually by the board, plus the chairman of the board,
if any, and the president, if a trustee. When the board is not
in session, the executive committee shall have and may
exercise all of the powers of the board except (i) the powers
granted to the finance committee by Section 2.6, (ii) the
power to adopt, amend or repeal by-laws, (iii) the power to
elect a chairman of the board, president or other executive
officer, and (iv) the power to fill vacancies in the board or
any of its standing committees or, except as provided in
Section 4.4, in the office of chairman of the board, president
or other executive officer.
(b) RECORDS. The executive committee shall keep a record of its
transactions which record shall be made available to each
member of the board, and so much thereof shall be read at the
next regular meeting of the board as it may order.
Section 2.6 FINANCE COMMITTEE.
(a) COMPOSITION AND POWERS. The finance committee shall consist
of such number of trustees as the board may determine, to be
elected annually by the board, plus the chairman of the board,
if any, and the president, if a trustee. When the board is not
in session, the finance committee shall have and may exercise
all of the powers of the board in regard to the assets and
investments of the Company (except assets used in the
operation of the Company's principal office and agencies)
including, without limitation, the power directly or by
delegation to do all such acts and things as it may deem
necessary and proper to (i) establish the Company's financial
and investment policy, (ii) invest, reinvest, manage, select,
sell and otherwise dispose of the Company's assets, (iii)
designate depositories for the Company's funds and authorize
persons to make deposits in and withdrawals from such
depositories, (iv) appoint one or more managers of the
Company's regional loan and real estate offices, (v) borrow
money for the use and benefit of the Company in such amount
and on such terms as it shall determine, and (vi) pledge the
Company's assets as security for the payment of such loans or
other proper purposes.
(b) RECORDS. The finance committee shall keep a record of its
transactions which record shall be made available to each
member of the board and all standing committees of the board
and so much thereof shall be read at the next regular meeting
of the board as it may order.
Section 2.7 VACANCIES.
Vacancies in the board or any committee of the board may be filled by
the board at any meeting. A person appointed to fill a vacancy in the board
shall hold office until the next annual meeting of members and until his
successor has been elected or
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appointed and qualified, except that any person appointed to fill any such
vacancy occurring after January 1 of any year but prior to the next following
meeting of members shall hold office until the second annual meeting of members
following his appointment and until his successor has been elected or appointed
and qualified. A person appointed to fill a vacancy on a committee shall hold
office until the next annual meeting of the board.
Section 2.8 ALTERNATE MEMBERS ON STANDING COMMITTEES OF THE BOARD.
(a) ELECTION. The board shall elect annually trustees to serve as
alternate members on any standing committee of the board, when
so designated by the committee or the chairman of the board or
the president to take the place of absent members, or to fill
vacancies on such committees until the next meeting of the
board.
(b) COMPENSATION. An alternate member on any committee shall
receive, during his period of service, compensation as fixed
by the board. The board may determine by a generally
applicable resolution to what extent, if any, the compensation
of absent members shall be withheld or reduced during the
period of service of alternates.
Section 2.9 COMPENSATION OF TRUSTEES.
By resolution of the board, each trustee may be paid his reasonable
expenses, if any, for attendance at each meeting of the board and its committees
and, if not an executive officer, may be paid a stated compensation as trustee
and committee member or a fixed sum for attendance at each meeting of the board
or its committees or both. Such payment shall not prevent the payment of
reasonable compensation to a trustee (other than an executive officer) for the
authorized performance of professional, appraisal, or other technical or special
service outside the scope of his regular duties as trustee or member of a
committee.
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ARTICLE III
MEETINGS OF THE BOARD AND
COMMITTEES OF THE BOARD
Section 3.1 REGULAR MEETINGS.
An annual meeting of the board for the election of standing committees
and the officers specified in Section 4.6(a), and the transaction of such other
business as may properly come before the meeting, shall be held annually at such
time and place, either within or without the State of Wisconsin, as designated
by resolution of the board and upon such notice as the board may determine.
Additional regular meetings of the board and regular meetings of a committee may
be held at such times and places and upon such notice as the board or committee
may determine.
Section 3.2 SPECIAL MEETINGS.
Special meetings of the board or a committee may be called at any time
by or at the request of the chairman of the board or the president, and in
addition, special meetings of the board may be called at any time by or at the
request of the executive committee or 9 or more trustees.
Section 3.3 QUORUM.
A quorum for the transaction of business at any meeting of the board or
any committee shall consist of a majority of the board or of the committee,
except that a quorum for a committee composed of an even number of persons shall
consist of 50% of the committee. Less than a quorum may adjourn the meeting from
time to time until a quorum is present.
Section 3.4 MANNER OF ACTING.
The act of a majority of the board or a committee present at a meeting
at which a quorum is present shall be the act of the board or committee, unless
the board or the committee determines a greater number is required.
Section 3.5 NOTICE OF SPECIAL MEETINGS.
Notice of special meetings of the board or a committee shall be given
in writing or by telegram to each trustee or committee member at his last known
address as it appears on the Company's records. Such notice shall be given at
least 6 days prior to the meeting date except in the case of finance and
executive committee meetings for which 2 days prior notice shall suffice. If
mailed, such notice shall be deemed to be given when deposited in the United
States mail, so addressed, with postage prepaid. If sent by telegram, such
notice shall be deemed to be given when the telegram is delivered to the
telegraph company. Neither the business to be transacted at, nor the purpose of,
any special meeting of the board or a committee need be specified in the notice
of such meeting except as provided in Section 11.1(b) in regard to amendment or
repeal of the By-laws.
Section 3.6 WAIVER OF NOTICE.
Any notice of the time or place of any special meeting of the board or
a committee may be dispensed with if every member of the board or committee
attends such meeting or if at any time every absent member of the board or
committee signs a written waiver of notice or waives notice by telegram. Neither
the business to be
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transacted at, nor the purpose of, any meeting of the board or committee need be
specified in the waiver of such meeting.
Section 3.7 ACTION WITHOUT A MEETING.
Any action required or permitted to be taken at a meeting by the board
or a committee may be taken without a meeting if a consent in writing, setting
forth the action so taken, is signed by every member of the board or committee.
ARTICLE IV
EXECUTIVE AND OTHER OFFICERS
Section 4.1 EXECUTIVE OFFICERS.
The executive officers of the Company shall consist of a president and
such other executive officers with such titles, powers and duties as may be
prescribed from time to time by the board. The board may from time to time elect
from among its members a chairman of the board, who shall be an executive
officer of the Company with such powers and duties as may be prescribed by the
board. Any 2 or more offices may be held by the same person except the offices
of president and secretary and the offices of president and vice president. The
executive officers shall hold office during the pleasure of the board. For the
purposes of the Wisconsin Statutes the principal officers shall be the chairman
of the board, if any, the president and the other executive officers. There
shall be at all times at least 3 principal officers.
Section 4.2 POWERS AND DUTIES OF EXECUTIVE OFFICERS.
The chairman of the board, if any, shall be chairman of and preside at
the meetings of the members and of the board and shall exercise such other
powers and perform such other duties as may be required by the board. In the
absence of action by the board vesting such powers in the chairman of the board,
the president shall be the chief executive officer and have the general
direction and management of the Company's affairs, and shall exercise such
powers and perform such duties as are incident to his office or as may be
required of him by the board or the executive or finance committees. The chief
executive officer, if a member of the Board, shall be chairman of and preside at
the meetings of the executive and finance committees. In the absence of, or if
there is no chairman of the board, the president shall preside at the meetings
of the members and, if a member of the board, at meetings of the board. All
other executive officers of the Company shall exercise such powers and perform
such duties as are usually incident to their office and such other duties,
including presiding at meetings of the members in the absence of the chairman of
the board and the president, as shall be assigned to or required of them, from
time to time, by the board, the executive committee, the finance committee or
the president or, if authorized by the board, the chairman of the board.
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Section 4.3 OTHER OFFICERS.
The other officers of the Company shall include a secretary, a
treasurer and such assistants to the several executive officers and such other
officers as the board or executive committee may from time to time designate as
such, all of whom shall hold office during the pleasure of the board or
executive committee. Any such officer may be designated an executive officer by
the board or executive committee. Each officer of the Company shall perform such
duties as may be assigned to or required of him from time to time, by the
executive committee, the finance committee, the president, the head of his
department or, if authorized by the board, the chairman of the board.
Section 4.4 VACANCIES AND ABSENCES.
Any vacancy in the office of chairman of the board, president or other
executive officers may be filled at any meeting of the board, or until the next
meeting of the board, by the executive committee. In the event of the death,
prolonged absence or inability or refusal to act of a chairman of the board who
has been designated by the board as the chief executive officer, the president
shall be the chief executive officer of the Company. In the prolonged absence of
the president or in the event of his death, inability or refusal to act, an
individual designated by the board or the executive committee shall exercise the
powers and perform the duties of the president. Such designation, if made by the
executive committee, shall not extend beyond the next meeting of the board.
Section 4.5 COMPENSATION.
Compensation of executive officers, officers and other employees of the
Company shall be fixed by or in the manner provided by the board.
Section 4.6 ELECTION AND APPOINTMENT OF OFFICERS.
Officers shall be elected or appointed from time to time, but at least
annually, as follows:
(a) The chairman of the board, if any, the president and other
executive officers shall be elected by the board.
(b) Other officers shall be appointed by the board or in a manner
provided by resolution of the board.
ARTICLE V
EXAMINING COMMITTEE
Section 5.1 SELECTION OF THE EXAMINING COMMITTEE.
An examining committee, consisting of not more than 5 or less than 3
individuals who are either members of the Company or whose lives are insured by
the Company, who are not trustees, agents, executive officers, officers or other
employees of the Company, shall be elected annually by the board, and the board
shall designate the chairman of such committee. Not more than 2 members of any
examining committee shall have been members of the previous examining committee.
A vacancy in the examining committee may be filled at any time by the board or
one of its standing committees.
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Section 5.2 FUNCTIONS OF THE EXAMINING COMMITTEE.
The purpose of the examining committee shall be to make an
investigation of and to inquire into the general policies, operations and
management of the Company. The committee shall have such powers as may be
determined from time to time by the board and shall make its reports to the
board.
ARTICLE VI
OFFICIAL BONDS; CHECKS;
OTHER INSTRUMENTS
Section 6.1 OFFICIAL BONDS.
The board, the executive committee or the finance committee may require
a bond from any executive officer, officer, other employee or agent of the
Company, in such sum and with such sureties as it may deem proper.
Section 6.2 CHECKS.
Disbursement of the funds of the Company shall be made upon the check
of the Company signed by such persons and in such manner as may be determined by
the finance committee. Such persons as may be designated by the finance
committee shall each have authority to endorse checks and other instruments
received by the Company or to execute powers of attorney authorizing other
persons to make such endorsements.
Section 6.3 INSURANCE POLICIES AND ANNUITY CONTRACTS.
Insurance policies and annuity contracts issued by the Company and
endorsements thereto shall be executed in the manner provided by the board or
executive committee.
Section 6.4 DERIVATIVE INVESTMENTS INSTRUMENTS.
The chairman of the board, if any, the president and such other persons
as the board or finance committee may designate shall each have authority to
execute on the behalf of the Company all instruments regarding derivative
investments which are executed in the name of the Company.
Section 6.5 OTHER INVESTMENT INSTRUMENTS.
The chairman of the board, if any, the president, all vice presidents
in the investment departments, the vice president and investment counsel, the
general counsel and such other persons as the board or the finance committee may
designate shall each have authority (a) to execute on the behalf of the Company
all instruments regarding investments (other than derivative investments which
are to be executed as provided in Section 6.4) which are executed in the name of
the Company and (b) to execute powers of attorney delegating authority to other
persons to execute investment instruments for the purpose of expediting a
specific transaction or to facilitate foreign investing.
Section 6.6 OTHER INSTRUMENTS.
The chairman of the board, if any, the president, and all vice
presidents or other executive officers, and such other persons as the board or
the executive committee may designate shall each have authority (a) to execute
on behalf of the Company all other instruments (in addition to those described
in Sections 6.2 through 6.5) executed
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in the name of the Company; and (b) to execute powers of attorney delegating
authority to other persons to execute on behalf of the Company other instruments
executed in the name of the Company for specific purposes.
Section 6.7 ATTESTATION.
The secretary and assistant secretaries shall each have authority to
attest, countersign and acknowledge all instruments described herein requiring
attestation, countersignature or acknowledgment.
ARTICLE VII
INDEMNIFICATION
Section 7.1 INDEMNIFICATION OF TRUSTEES, OFFICERS AND EMPLOYEES.
(a) SUCCESSFUL DEFENSE. The Company shall indemnify a trustee,
officer, employee or member of a committee, 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 trustee, officer, employee or member
of a committee was a party because he or she is a trustee,
officer, employee or member of a committee of the Company.
(b) OTHER CASES. In cases not included under (a) above, the
Company shall indemnify a trustee, officer, employee or member
of a committee against liability incurred in a proceeding to
which the trustee, officer, employee or member of a committee
was a party because he or she is a trustee, officer, employee
or member of a committee of the Company or was serving at the
Company's request as a director, officer, employee, agent,
partner, trustee, member of any governing or decision-making
committee of another corporation, partnership, joint venture,
trust or other enterprise, unless liability was incurred
because the trustee, officer, employee or member of a
committee breached or failed to perform a duty owed to the
Company and the breach or failure to perform constitutes any
of the following: (i) a wilful failure to deal fairly with the
Company or its members in connection with a matter in which
the trustee, officer, employee or member of a committee has a
material conflict of interest, (ii) a violation of criminal
law, unless the trustee, officer, employee or member of a
committee had reasonable cause to believe his or her conduct
was lawful or no reasonable cause to believe his or her
conduct was unlawful; (iii) a transaction from which the
trustee, officer, employee or member of a committee derived an
improper personal profit; or (iv) wilful misconduct. The
termination of a proceeding by judgment, order, settlement,
conviction or upon a plea of no contest or its equivalent,
does not, by itself, create a presumption that indemnification
is not required pursuant to this section. A trustee, officer,
employee or member of a committee who seeks indemnification
under this section shall make a written request to the
Company. Indemnification under this section is not required if
the trustee, officer, employee or member of a committee
previously received indemnification or allowance of expenses
in connection with the same proceeding.
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Section 7.2 DETERMINATION OF RIGHT TO INDEMNIFICATION.
Any indemnification under Section 7.1, unless ordered by a court, shall
be made by the Company only as authorized in the specific case upon a
determination that indemnification of the trustee, officer, employee or member
of a committee is proper in the circumstances because he or she has met the
applicable standard of conduct. Such determination shall be made by one of the
following means selected by the person seeking indemnification:
(a) By majority vote of a quorum of the Board consisting of
trustees not at the time parties to the same or related
proceedings. If a quorum of disinterested trustees cannot be
obtained, by majority vote of a committee duly appointed by
the Board and consisting solely of two or more trustees not at
the time parties to the same or related proceedings. Trustees
who are parties to the same or related proceedings may
participate in the designation of members of the committee.
(b) By independent legal counsel selected by a quorum of the Board
or its committee in the manner described in (a) or, if unable
to obtain such a quorum or committee, by majority vote of the
full Board, including trustees who are parties to the same or
related proceedings.
(c) By a panel of three arbitrators consisting of one arbitrator
selected by those trustees entitled under (b) to select
independent legal counsel, one arbitrator selected by the
person seeking indemnification, and one arbitrator selected by
the two arbitrators previously selected.
Section 7.3 ALLOWANCE OF EXPENSES AS INCURRED.
Upon written request by a trustee, officer, employee or member of a
committee who is party to a proceeding, the Company may pay or reimburse his or
her reasonable expenses as incurred, if such advance payment is authorized in a
manner provided in Section 7.2, and if the person provides the Company with the
following:
(a) 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 Company; and
(b) 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 7.2 that indemnification
is not required and that indemnification is not ordered by a
court. The undertaking under this section shall be an
unlimited, general obligation of the person involved, may be
secured or unsecured, and may be accepted without reference to
his or her ability to repay.
Section 7.4 ADDITIONAL RIGHTS TO INDEMNIFICATION AND ALLOWANCE OF EXPENSES.
Except as limited by law, the indemnification and allowance of expenses
provided by this article do not preclude any additional right to indemnification
or allowance of expenses that a trustee, officer, employee, member of a
committee, or other person serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise may have under any written agreement between such
person and the Company, resolution of the Board, or resolution adopted by the
members.
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Section 7.5 INSURANCE.
The Company may purchase and maintain insurance on behalf of any person
who is or was a trustee, officer, employee or member of a committee of the
Company or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, or a partnership, joint
venture, trust or other enterprise, against any liability asserted against him
and incurred by him in any such capacity or arising out of his status as such,
whether or not the Company would have the power to indemnify him against such
liability under this article.
Section 7.6 GENERAL.
For purposes of this article, the definitions contained in Section
181.041 of the Wisconsin Statutes are incorporated herein by this reference
except that "trustee" shall be used wherever the term "director" appears in the
statute. The term "employee" shall mean a natural person who is or was an
employee of the Company or who, while an employee of the Company, is or was
serving at the Company's request as a director, officer, partner, trustee,
member of any decision-making committee, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, and, unless
the context requires otherwise, the estate or personal representative of the
employee. "Member of a committee" shall mean a member of the examining committee
described in Article V. The provisions of this article shall apply from the date
of adoption of this By-Law, regardless of the date of the occurrence for which
indemnification is sought. Any right to indemnification under any prior By-Law
of the Company is terminated as of the date of adoption of this By-Law.
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ARTICLE VIII
EMERGENCY PROVISIONS
Section 8.1 CONTINUITY OF MANAGEMENT.
To insure continuity of management in the event of a national emergency
caused by military attack or by a nuclear, atomic or other disaster, the
following delegation of executive authority and responsibility is provided on a
temporary basis pursuant to the Wisconsin Statutes until the executive committee
or a board of trustees can act:
(a) ACTING PRESIDENT. In the event such emergency results in the
disability or absence of the chairman of the board and the
president, then an executive officer in the order specified in
the latest resolution of the board relating to powers and
duties of executive officers shall be and is hereby designated
as acting president and chief executive officer, but if no
executive officer is then available, the trustee senior in
point of service on the board of trustees, who is able and
willing to act, shall be and is hereby designated the acting
president and chief executive officer.
(b) POWERS OF ACTING PRESIDENT. The acting president shall
exercise the powers and perform the duties of the president,
except as otherwise provided in the By-laws, and shall have
authority to relocate the principal office within the United
States, to take charge of all Company property and records,
including copies of such records as may be deposited outside
the principal office, and to sign all instruments relating to
the business of the Company, including checks.
(c) EXECUTIVE COMMITTEE. The acting president shall immediately
call a meeting of the executive committee, and such committee
shall have authority to designate substitutes for absent or
disabled executive officers to act until the next meeting of
the board, and shall have authority to determine a suitable
location within the United States for the Company's principal
office.
(d) COMMITTEE QUORUM. If by reason of such emergency a quorum of
either the executive committee or finance committee cannot be
obtained, then the acting president shall have authority to
designate such number of trustees as may be required for a
quorum, to serve as substitutes on such committee. If
sufficient substitutes are not available, the acting president
may reduce the number constituting a quorum or any committee
to not less than 3.
(e) BOARD QUORUM. If by reason of such emergency a quorum of the
board cannot be obtained, 3 trustees shall constitute a quorum
for the transaction of business at all meetings of the board.
Any vacancy in the board may be filled by a majority of the
remaining trustees, though less than a quorum, or by a sole
remaining trustee. If there are no surviving trustees but at
least 3 executive officers of the Company survive, then the
president if he survives and 2 (or 3 if the president does not
survive) other executive officers in the order listed in the
latest resolution of the board relating to powers and duties
of executive officers shall be the trustees
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and shall possess all of the powers of the previous board and
such powers as are granted herein. By majority vote such
emergency board of trustees may elect other trustees. If there
are not at least 3 surviving executive officers, the Wisconsin
Commissioner of Insurance or duly designated person exercising
the powers of the Commissioner of Insurance shall appoint 3
persons as trustees who shall possess all of the powers of the
previous board and such powers as are granted herein, and
these persons by majority vote may elect other trustees.
ARTICLE IX
OFFICES
Section 9.1 OFFICES.
The location of the principal office of the Company shall be
determined by the board. The Company may have other offices at such locations as
may be necessary or convenient for the conduct of its business.
ARTICLE X
CORPORATE SEAL
Section 10.1 CORPORATE SEAL.
The board may prescribe a corporate seal for the Company, which shall
contain the name of the Company, the words "Corporate Seal" and such other
devices, if any, as the board may determine.
ARTICLE XI
AMENDMENTS
Section 11.1 AMENDMENT OR REPEAL OF THE BY-LAWS.
(a) BY MEMBERS. The members may, at any regular or special meeting
of the members at which a quorum is present, amend or repeal
these By-laws or adopt new By-laws by the affirmative vote of
at least two-thirds of the votes entitled to be cast by the
members present in person or by proxy at such meeting.
(b) BY BOARD. The board may, at any regular or special meeting of
the board, amend or repeal these By-laws or adopt new By-laws,
except that no by-law adopted by the members shall be subject
to amendment or repeal by the board. Written notice setting
forth the substance of the proposed action shall be given in
the manner provided in Section 3.5 to every member of the
board at least 6 days prior to the meeting date.
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