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AMENDED AND RESTATED BY-LAWS
OF
MANPOWER INC.
ARTICLE I. OFFICES
SECTION 1.1. Principal and Other Offices. The principal office of the
Corporation shall be located at any place either within or outside the State of
Wisconsin as designated in the Corporation's most current Annual Report filed
with the Wisconsin Secretary of State. The Corporation may have such other
offices, either within or outside the State of Wisconsin as the Board of
Directors may designate or as the business of the Corporation may require from
time to time.
SECTION 1.2. Registered Office. The registered office of the
Corporation required by the Wisconsin business corporation law to be maintained
in the State of Wisconsin may, but need not, be the same as any of its places
of business. The registered office may be changed from time to time.
SECTION 1.3. Registered Agent. The registered agent of the
Corporation required by the Wisconsin business corporation law to maintain a
business office in the State of Wisconsin may, but need not, be an officer or
employee of the Corporation as long as such agent's business office is
identical with the registered office. The registered agent may be changed from
time to time.
ARTICLE II. SHAREHOLDERS
SECTION 2.1. Annual Meeting. The annual meeting of shareholders shall
be held on the third Tuesday in the month of April for each year at 10:00 a.m.
(local time) or at such other date and time as shall be fixed by, or at the
direction of, the Board of Directors, for the purpose of electing directors for
the class of directors whose term expires in such year and for the transaction
of such other business as may have been properly brought before the meeting in
compliance with the provisions of Section 2.5. If the day fixed for the annual
meeting shall be a legal holiday in the State of Wisconsin, such meeting shall
be held on the next succeeding business day.
SECTION 2.2. Special Meetings. Except as otherwise required by
applicable law, special meetings of shareholders of the Corporation may only be
called by the Chairman of the Board or the President pursuant to a resolution
approved by not less than three- quarters of the Board of Directors; provided,
however, that the Corporation shall hold a special meeting of shareholders of
the Corporation if a signed and dated written demand or demands by the holders
of at least 10% of all the votes entitled to be cast on any issue proposed to
be considered at
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the proposed special meeting is delivered to the Corporation as
required under the Wisconsin business corporation law, which demand or demands
must describe one or more identical purposes for which the shareholders demand
a meeting be called.
SECTION 2.3. Place of Meeting. The Board of Directors, the Chairman
of the Board or the President may designate any place, within or outside the
State of Wisconsin, as the place of meeting for the annual meeting or for any
special meeting. If no designation is made the place of meeting shall be the
principal office of the Corporation, but any meeting may be adjourned to
reconvene at any place designated by vote of a majority of the shares
represented thereat.
SECTION 2.4. Notice of Meeting. The Corporation shall notify
shareholders of the date, time and place of each annual and special
shareholders meeting. Notice of a special meeting shall include a description
of each purpose for which the meeting is called. Notice of all meetings need be
given only to shareholders entitled to vote, unless otherwise required by the
Wisconsin business corporation law, and shall be given not less than ten nor
more than sixty days before the meeting date. The Corporation may give notice
in person, by telephone, telegraph, teletype, facsimile or other forms of wire
or wireless communication, or by mail or private carrier, and, if these forms
of personal communication are impracticable, notice may be communicated by a
newspaper of general circulation in the area where published, or by radio,
television or other form of public broadcast communication. Written notice
shall be deemed to be effective at the earlier of receipt or mailing and may be
addressed to the shareholder's address shown in the Corporation's current
record of shareholders. Oral notice shall be deemed to be effective when
communicated. Notice by newspaper, radio, television or other form of public
broadcast communication shall be deemed to be effective the date of publication
or broadcast.
SECTION 2.5. Advance Notice Shareholder-Proposed Business at Annual
Meeting. At an annual meeting of 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 amendment or supplement thereto) given in
accordance with Section 2.4, (b) otherwise properly brought before the meeting
by or at the direction of the Board of Directors, the Chairman of the Board or
the President, or (c) otherwise properly brought before the meeting by a
shareholder. In addition to any other requirements under applicable law, the
Articles of Incorporation or the By-Laws for business to be properly
brought before an annual meeting by a shareholder, the shareholder must have
given with timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a shareholder's notice must be delivered to or
mailed and received at the principal office of the Corporation, not less than
90 days prior to the meeting date specified in Section 2.1. A shareholder's
notice to the Secretary shall set forth as to each matter the shareholder
proposes to bring before the annual meeting (i) a brief description of the
business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (ii) the name and record
address of the shareholder proposing such business, (iii) the class and number
of shares of the Corporation which are beneficially owned by the shareholder,
and (iv) any interest of the shareholder in such business. In addition, any
such shareholder shall be required to provide such further information as may
be requested by the Corporation in order to comply with federal
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securities laws, rules and regulations. The Corporation may require
evidence by any person giving notice under this Section 2.5 that such person is
a bona fide beneficial owner of the Corporation's shares.
Notwithstanding anything in the By-Laws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 2.5; provided, however, that nothing in
this Section 2.5 shall be deemed to preclude discussion by any shareholder of
any business properly brought before the annual meeting in accordance with said
procedure.
The presiding officer at an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section 2.5, and
if he should so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
SECTION 2.6. Procedure for Nomination of Directors. Only persons
nominated in accordance with all of the procedures set forth in the
Corporation's Articles of Incorporation and By-Laws shall be eligible for
election as 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, by any nominating committee or persons
appointed by the Board, or by any shareholder of the Corporation entitled to
vote for election of directors at the meeting who complies with all of the
notice procedures set forth in this Section 2.6.
Nominations other than those made by or at the direction of the Board
of Directors or any nominating committee or person appointed by the Board shall
be made pursuant to timely notice in proper written form to the Secretary of
the Corporation. To be timely, a shareholder's request to nominate a person
for director, together with the written consent of such person to serve as a
director, must be received by the Secretary of the Corporation at the
Corporation's principal office (i) with respect to an election held at an
annual meeting of shareholders, not less than 90 days nor more than 150 days
prior to the meeting date specified in Section 2.1, or (ii) with respect to an
election held at a special meeting of shareholders for the election of
directors, not less than the close of business on the eighth day following the
date on which notice of such meeting is given to shareholders. To be in proper
written form, such shareholder's notice shall set forth in writing (a) as to
each person whom the shareholder proposes to nominate for election or
reelection as a director (i) the name, age, business address and residence
address of such person, (ii) the principal occupation or employment of such
person, (iii) the class and number of shares of stock of the Corporation which
are beneficially owned by such person, and (iv) such other information relating
to such person as is required to be disclosed in solicitations of proxies for
election of directors, or as otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended, and any
successor to such Regulation; and (b) as to the shareholder giving the notice
(i) the name and address, as they appear on the Corporation's books, of such
shareholder, (ii) the class and number of shares of stock of the Corporation
which are beneficially owned by such shareholder, and (iii) a representation
that the shareholder is a holder of record of stock of the Corporation entitled
to vote at such meeting and
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intends to appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice. The Corporation may require any
proposed nominee to furnish such other information as may reasonably be
required by the Corporation to determine the eligibility of such proposed
nominee to serve as a director of the Corporation or the shareholder to
nominate the proposed nominee. The presiding officer at the meeting shall, if
the facts so warrant, determine and declare to the meeting that a nomination
was not made in accordance with the procedures or other requirements prescribed
by the Corporation's Articles of Incorporation and By-Laws; and if he should so
determine, such presiding officer shall so declare to the meeting and the
defective nomination(s) shall be disregarded.
SECTION 2.7. Fixing of Record Date. For the purpose of determining
shareholders of any voting group entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or shareholders entitled to
receive payment of any distribution or dividend, or in order to make a
determination of shareholders for any other proper purpose, the Board of
Directors may fix in advance a date as the record date for any such
determination of shareholders. Such record date shall not be more than 70 days
prior to the date on which the particular action, requiring such determination
of shareholders, is to be taken. If no record date is so fixed for the
determination of shareholders entitled to notice of, or to vote at a meeting of
shareholders, or shareholders entitled to receive a share dividend or
distribution, the record date for determination of such shareholders shall be
at the close of business on:
(a) With respect to an annual shareholders meeting or any special
shareholders meeting called by the Board of Directors or any person
specifically authorized by the Board of Directors or these By-Laws to call
a meeting, the day before the first notice is mailed to shareholders;
(b) With respect to a special shareholders meeting demanded by the
shareholders, the date the first shareholder signs the demand;
(c) With respect to the payment of a share dividend, the date the
Board of Directors authorizes the share dividend; and
(d) With respect to a distribution to shareholders (other than one
involving a repurchase or reacquisition of shares), the date
the Board of Directors authorizes the distribution.
SECTION 2.8. Voting Lists. After fixing a record date for a meeting,
the Corporation shall prepare a list of the name of all its shareholders who
are entitled to notice of a shareholders meeting. The list shall be arranged
by class or series of shares and show the address of and the number of shares
held by each shareholder. The shareholders list must be available for
inspection by any shareholder, beginning two business days after notice of the
meeting is given for which the list was prepared and continuing to the date of
the meeting. The list shall be available at the Corporation's principal office
or at a place identified in the meeting notice in the city where the meeting is
to be held. Subject to the provisions of the Wisconsin business
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corporation law, a shareholder or his or her agent or attorney may, on
written demand, inspect and copy the list during regular business hours and at
his expense, during the period it is available for inspection. The Corporation
shall make the shareholders list available at the meeting, and any shareholder
or his or her agent or attorney may inspect the list at any time during the
meeting or any adjournment thereof. Refusal or failure to prepare or make
available the shareholders list shall not affect the validity of any action
taken at such meeting.
SECTION 2.9. Shareholder Quorum and Voting Requirements. Shares
entitled to vote as a separate voting group may take action on a matter at a
meeting only if a quorum of those shares exists with respect to that matter.
Unless the Articles of Incorporation, By- Laws adopted under authority granted
in the Articles of Incorporation or the Wisconsin business corporation law
provide otherwise, a majority of the votes entitled to be cast on the matter by
the voting group constitutes a quorum of that voting group for action on that
matter.
If the Articles of Incorporation or the Wisconsin business corporation
law provide for voting by two or more voting groups on a matter, action on that
matter is taken only when voted upon by each of those voting groups counted
separately. Action may be taken by one voting group on a matter even though no
action is taken by another voting group entitled to vote on the matter.
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 deemed present for purposes of determining whether a quorum
exists, for the remainder of the meeting and for any adjournment of that
meeting to the extent provided in Section 2.14.
If a quorum exists, action on a matter by a voting group is approved if
the votes cast within the voting group favoring the action exceed the votes
cast opposing the action, unless the Articles of Incorporation, the By-Laws or
the Wisconsin business corporation law require a greater number of affirmative
votes; provided, however, that for purposes of electing directors, unless
otherwise provided in the Articles of Incorporation, directors are elected by a
plurality of the votes cast by the shares entitled to vote in the election at a
meeting at which a quorum is present. For purposes of electing directors, (i) a
"plurality" means that the individuals with the largest number of votes are
elected as directors up to the maximum number of directors to be chosen at the
election, and (ii) votes against a candidate are not given legal effect and are
not counted as votes cast in an election of directors.
SECTION 2.10. Proxies. For all meetings of shareholders, a
shareholder may appoint a proxy to vote or otherwise act for the shareholder by
signing an appointment form, either personally or by a duly authorized
attorney-in-fact. Such proxy shall be effective when filed with the Secretary
of the Corporation or other officer or agent authorized to tabulate votes
before or at the time of the meeting. No proxy shall be valid after eleven
months from the date of its execution, unless otherwise provided in the proxy.
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SECTION 2.11. Voting of Shares. Unless otherwise provided in the
Articles of Incorporation, each outstanding share entitled to vote shall be
entitled to one vote upon each matter submitted to a vote at a meeting of
shareholders.
No shares in the Corporation held by another corporation may be voted
if the Corporation owns, directly or indirectly, a sufficient number of shares
entitled to elect a majority of the directors of such other corporation;
provided, however, that the Corporation shall not be limited in its power to
vote any shares, including its own shares, held by it in a fiduciary capacity.
SECTION 2.12. Voting Shares Owned by the Corporation. Shares of the
Corporation belonging to it shall not be voted directly or indirectly at any
meeting and shall not be counted in determining the total number of outstanding
shares at any given time, but shares held by this Corporation in a fiduciary
capacity may be voted and shall be counted in determining the total number of
outstanding shares at any given time.
SECTION 2.13. Acceptance of Instruments Showing
Shareholder Action.
(a) If the name signed on a vote, consent, waiver or proxy appointment
corresponds to the name of a shareholder, the Corporation, if acting in
good faith, may accept the vote, consent, waiver or proxy appointment and
give it effect as the act of the shareholder.
(b) If the name signed on a vote, consent, waiver or proxy
appointment does not correspond to the name of its shareholder, the
Corporation, if acting in good faith, may accept the vote, consent, waiver
or proxy appointment and give it effect as the act of the shareholder if
any of the following apply:
(1) the shareholder is an entity, within the meaning of the
Wisconsin business corporation law, and the name signed purports
to be that of an officer or agent of the entity;
(2) the name signed purports to be that of a personal
representative, administrator, executor, guardian or
conservator representing the shareholder and, if the Corporation or
its agent request, evidence of fiduciary status acceptable to the
Corporation is presented with respect to the vote, consent, waiver or
proxy appointment;
(3) the name signed purports to be that of a receiver or
trustee in bankruptcy of the shareholder and, if the
Corporation or its agent request, evidence of this status acceptable
to the Corporation is presented with respect to the vote, consent,
waiver or proxy appointment;
(4) the name signed purports to be that of a pledgee,
beneficial owner, or attorney- in-fact of the shareholder and,
if the Corporation or its agent request,
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evidence acceptable to the Corporation of the signatory's
authority to sign for the shareholder is presented with respect to the
vote, consent, waiver or proxy appointment; or
(5) two or more persons are the shareholders as cotenants or
fiduciaries and the name signed purports to be the name of at
least one of the coowners and the persons signing appears to be acting
on behalf of all coowners.
(c) The Corporation may reject a vote, consent, waiver or
proxy appointment if the Secretary or other officer or agent of the
Corporation who is authorized to tabulate votes, acting in good faith, has
reasonable basis for doubt about the validity of the signature on it or
about the signatory's authority to sign for the shareholder.
SECTION 2.14. Adjournments. An annual or special meeting of shareholders
may be adjourned at any time, including after action on one or more
matters, by a majority of shares represented, even if less than a quorum. The
meeting may be adjourned for any purpose, including, but not limited to,
allowing additional time to solicit votes on one or more matters, to
disseminate additional information to shareholders or to count votes. Upon
being reconvened, the adjourned meeting shall be deemed to be a continuation of
the initial meeting.
(a) Quorum. Once a share is represented for any purpose at the
original meeting, other than for the purpose of objecting to holding
the meeting or transacting business at a meeting, it is considered present
for purposes of determining if a quorum exists, for the remainder of the
meeting and for any adjournment of that meeting unless a new record date is
or must be set for that adjourned meeting.
(b) Record Date. When a determination of shareholders entitled to
notice of or to vote at any meeting of shareholders has been made as
provided in Section 2.7, such determination shall be applied to any
adjournment thereof unless the Board of Directors fixes a new record date,
which it shall do if the meeting is adjourned to a date more than 120 days
after the date fixed for the original meeting.
(c) Notice. Unless a new record date for an adjourned meeting is or
must be fixed pursuant to Section 2.14(b), the Corporation is not
required to give notice of the new date, time or place if the new date,
time or place is announced at the meeting before adjournment.
SECTION 2.15. Polling. In the sole discretion of the presiding
officer of an annual or special meeting of shareholders, polls may be closed at
any time after commencement of any annual or special meeting. When there are
several matters to be considered at a meeting, the polls may remain open during
the meeting as to any or all matters to be considered, as the presiding officer
may declare. Polls will remain open as to matters to be considered at any
adjournment of the meeting unless the presiding officer declares otherwise. At
the sole discretion of the presiding officer, the polls may remain open after
adjournment of a meeting for
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not more than 72 hours for the purpose of collecting proxies and
counting votes. All votes submitted prior to the announcement of the results
of the balloting shall be valid and counted. The results of balloting shall be
final and binding after announcement of such results.
SECTION 2.16. Waiver of Notice by Shareholders. A shareholder may waive
any notice required by the Wisconsin business corporation law, the
Articles of Incorporation or the By-Laws 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, contain the same information that would
have been required in the notice under any applicable provisions of the
Wisconsin business corporation law, except that the time and place of the
meeting need not be stated, and be delivered to the Corporation for inclusion
in the Corporation's records. A shareholder's attendance at a meeting, in
person or by proxy, waives objection to (i) lack of notice or defective notice
of the meeting, unless the shareholder at the beginning of the meeting or
promptly upon arrival objects to the holding of the meeting or transacting
business at the meeting, and (ii) 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.
SECTION 2.17. Unanimous Consent without Meeting. Any action required
or permitted to be taken at a meeting of shareholders may be taken without a
meeting only by unanimous written consent or consents signed by all of the
shareholders of the Corporation and delivered to the Corporation for inclusion
in the Corporation's records.
ARTICLE III. BOARD OF DIRECTORS
SECTION 3.1. General Powers. All corporate powers shall be exercised
by or under the authority of, and the business and affairs of the Corporation
managed under the direction of, its Board of Directors, subject to any
limitations set forth in the Articles of Incorporation.
SECTION 3.2. Number, Classification, Tenure and Qualifications.
(a) Number. Except as otherwise provided in the Articles of
Incorporation, the number of directors (exclusive of directors, if any,
elected by the holders of one or more series of preferred stock, voting
separately as a series pursuant to the provisions of the Articles of
Incorporation) shall be not less than 3 nor more than 11 directors, the
exact number of directors to be determined from time to time by resolution
adopted by affirmative vote of a majority of the entire Board of Directors
then in office.
(b) Classification. The directors shall be divided into three
classes, designated Class I, Class II, and Class III, and the term of
directors of each class shall be three years. Each class shall consist, as
nearly as possible, of one-third of the total number of directors
constituting the entire Board of Directors. If the number of directors is
changed by resolution of the Board of Directors pursuant to Section 3.2(a),
any increase or decrease shall be apportioned among the classes so as to
maintain the number of directors in each
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class as nearly equal as possible, but in no case shall a decrease in the
number of directors shorten the term of any incumbent director.
(c) Tenure. A director shall hold office until the annual meeting
for the year in which his term expires and until his successor shall be
duly elected and shall qualify.
(d) Qualifications. A director need not be a resident of the state
of Wisconsin or a shareholder of the corporation except if required by
the Articles of Incorporation. The Board of Directors, at its discretion,
may establish any qualifications for directors, which qualifications, if
any, shall only be applied for determining qualifications of a nominee for
director as of the date of the meeting at which such nominee is to be
elected or appointed.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of preferred stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at an annual or
special meeting of shareholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of the Articles of Incorporation applicable thereto. Directors so
elected shall not be divided into classes unless expressly provided by such
Articles, and during the prescribed terms of office of such directors, the
Board of Directors shall consist of such directors in addition to the number of
directors determined as provided in Section 3.2(a).
SECTION 3.3. Removal. Exclusive of directors, if any, elected by the
holders of one or more classes of preferred stock, no director of the
Corporation may be removed from office except for Cause and by the affirmative
vote of two-thirds of the outstanding shares of capital stock of the
Corporation entitled to vote at a meeting of shareholders duly called for such
purpose. As used in this Section 3.3, the term "Cause" shall mean solely
malfeasance arising from the performance of a director's duties which has a
materially adverse effect on the business of the Corporation.
SECTION 3.4. Resignation. A director may resign at any time by
delivering written notice to the Board of Directors, the Chairman of the Board
or to the Corporation (which shall be directed to the Secretary).
SECTION 3.5. Vacancies. Exclusive of a vacancy in directors, if any,
elected by the holders of one or more classes of preferred stock, any vacancy
on the Board of Directors, however caused, including, without limitation, any
vacancy resulting from an increase in the number of directors, shall be filled
by the vote of a majority of the directors then in office, although less than a
quorum, or by a sole remaining director. Any director so elected to fill any
vacancy in the Board of Directors, including a vacancy created by an increase
in the number of directors, shall hold office for the remaining term of
directors of the class to which he has been elected and until his successor
shall be elected and shall qualify. A vacancy that will occur at a specific
later date may be filled before the vacancy occurs, but the new director will
not take office until the vacancy occurs.
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SECTION 3.6. Committees. The Board of Directors by resolution adopted
by the affirmative vote of a majority of the number of directors fixed by
Section 3.2(a) then in office may create one or more committees, appoint
members of the Board of Directors to serve on the committees and designate
other members of the Board of Directors to serve as alternates. Each committee
shall consist of two or more members of the Board of Directors. Unless
otherwise provided by the Board of Directors, members of the committee shall
serve at the pleasure of the Board of Directors. The committee may exercise
those aspects of the authority of the Board of Directors which are within the
scope of the committee's assigned responsibilities or which the Board of
Directors otherwise confers upon such committee; provided, however, a committee
may not do any of the following:
(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, unless the Board of
Directors has specifically granted authority to the committee, its
committees;
(d) amend the Articles of Incorporation pursuant to the authority of
directors to do so granted by the Wisconsin business corporation law;
(e) adopt, amend, or repeal by-laws;
(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 that
the Board of Directors may authorize a committee (or a senior executive
officer of the corporation, including without limitation the President and
any Vice President) to do so within limits prescribed by the Board of
Directors.
Except as required or limited by the Articles of Incorporation, the
By-Laws, the Wisconsin business corporation law, or resolution of the Board of
Directors, each committee shall be authorized to fix its own rules governing
the conduct of its activities. Each committee shall make such reports to the
Board of Directors of its activities as the Board of Directors may request.
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SECTION 3.7. Compensation. Except as provided in the Articles of
Incorporation, the Board of Directors, irrespective of any personal interest of
any of its members, may fix the compensation of directors.
SECTION 3.8. Regular Meeting. A regular meeting of the Board of
Directors shall be held without other notice than this By-Law immediately
after, and at the same place as, the annual meeting of shareholders, and each
adjourned session thereof. A regular meeting of a committee, if any, shall be
at such date, place, either within or outside the state of Wisconsin, and time
as such committee determines. Other regular meetings of the Board of Directors
shall be held at such dates, times and places, either within or without the
State of Wisconsin, as the Board of Directors may provide by resolution, which
resolution shall constitute exclusive notice of such meeting.
SECTION 3.9. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the Chairman of the Board, the
President or three-quarters of the members of the Board of Directors. Special
meetings of a committee may be called by or at the request of the Chairman of a
committee or a majority of the committee members. The person or persons
authorized to call special meetings of the Board of Directors or a committee
may fix any date, time and place, either within or outside the State of
Wisconsin, for any special meeting of the Board of Directors or committee
called by them.
SECTION 3.10. Notice; Waiver. Notice of meetings, except for regular
meetings, shall be given at least five days previously thereto and shall state
the date, time and place of the meeting of the Board of Directors or committee.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the Board of Directors or committee need be specified in the
notice of such meeting. Notice may be communicated in person, by telephone,
telegraph, teletype, facsimile or other form of wire or wireless communication,
or by mail or private carrier. Written notice is effective at the earliest of
the following: (1) when received; (2) 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; or (3) two days after it is
deposited with a private carrier. Oral notice is deemed effective when
communicated. Facsimile notice is deemed effective when sent.
A director may waive any notice required by the Wisconsin business
corporation law, the Articles of Incorporation or the By-Laws 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.
Notwithstanding the foregoing, a director's attendance at or participation in a
meeting waives any required notice to such director of the meeting unless the
director at the beginning of the meeting or promptly upon such director's
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.
SECTION 3.11. Quorum; Voting. Unless otherwise provided in the Articles
of Incorporation or the Wisconsin business corporation law, a majority
of the number of directors
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fixed by Section 3.2(a) or appointed by the Board of Directors to a
committee shall constitute a quorum for the transaction of business at any
meeting of the Board of Directors or committee; provided, however, that even
though less than such quorum is present at a meeting, a majority of the
directors present may adjourn the meeting from time to time without further
notice. Except as otherwise provided in the Articles of Incorporation, the
By-Laws or the Wisconsin business corporation law, if a quorum is present when
a vote is taken, the affirmative vote of a majority of directors present is the
act of the Board of Directors or committee.
SECTION 3.12. Presumption of Assent. A director of the Corporation
who is present and is announced as present at a meeting of the Board of
Directors or a committee thereof at which action on any corporate matter is
taken is deemed to have assented to the action taken unless (i) such director
objects at the beginning of the meeting or promptly upon arrival to holding the
meeting or transacting business at the meeting, (ii) such director dissents or
abstains from an action taken and minutes of the meeting are prepared that show
the director's dissent or abstention from the action taken, (iii) such director
delivers written notice of his dissent or abstention to the presiding officer
of the meeting before its adjournment or to the Corporation (directed to the
Secretary) immediately after adjournment of the meeting, or (iv) such director
dissents or abstains from an action taken, minutes of the meeting are prepared
that fail to show the director's dissent or abstention from the action taken
and the director delivers to the Corporation (directed to the Secretary) a
written notice of that failure promptly after receiving the minutes. A
director who votes in favor of action taken may not dissent or abstain from
that action.
SECTION 3.13. Informal Action Without Meeting. Any action required or
permitted by the Articles of Incorporation, the By-Laws or any provision of law
to be taken by the Board of Directors or a committee at a meeting may be taken
without a meeting if the action is taken by all of the directors or committee
members then in office. The action shall be evidenced by one or more written
consents describing the action taken, signed by each director and retained by
the Corporation. Any such consent is effective when the last director signs
the consent, unless the consent specifies a different effective date.
SECTION 3.14. Telephonic or Other Meetings. Unless the Articles of
Incorporation provide otherwise, any or all directors may participate in a
regular or special meeting of the Board of Directors or any committee thereof
by, or conduct the meeting through the use of, any means of communication by
which (i) all directors participating may simultaneously hear each other during
the meeting, (ii) all communication during the meeting is immediately
transmitted to each participating director and (iii) each participating
director is able to immediately send messages to all other participating
directors. If the meeting is to be conducted through the use of any such means
of communication 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 this means is deemed to be present in person at
the meeting. Notwithstanding the foregoing, the Chairman of the Board, or
other presiding officer, shall, at any time, have the authority to deem any
business or resolution not appropriate for meetings held pursuant to this
Section 3.14.
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ARTICLE IV. OFFICERS
SECTION 4.1. Number. The principal officers of the Corporation shall be
a Chairman of the Board, a President, one or more Vice Presidents, any
number of whom may be designated as Senior Executive Vice President, Executive
Vice President or Senior Vice President, a Secretary and a Treasurer, each of
whom shall be elected by the Board of Directors. Until such time as the Board
of Directors shall deem it desirable to elect a Chairman of the Board such
office may remain vacant, and while such office is vacant, the powers and
duties of the Chairman of the Board shall vest in and be performed by the
President of the Corporation. Such other officers as may be deemed necessary
may be elected or appointed by the Board of Directors. Such other assistant
officers as may be deemed necessary may be appointed by the Board of Directors
or the President for such term as is specified in the appointment. The same
natural person may simultaneously hold more than one office in the Corporation.
SECTION 4.2. Election and Term of Office. The officers of the
Corporation to be elected by the Board of Directors shall be elected
annually by the Board of Directors at the first meeting of the Board of
Directors held after the annual meeting of the shareholders. If the election
of officers shall not be held at such meeting, such election shall be held as
soon thereafter as convenient. Each officer shall hold office until his
successor shall have been duly elected or until his death or until he shall
resign or shall have been removed in the manner hereinafter provided.
SECTION 4.3. Removal. The Board of Directors may remove any officer
at any time with or without cause and notwithstanding the contract rights, if
any, of the officer removed. The Board of Directors or the President may
remove any assistant officer who was appointed by the Board or the President.
The appointment of an officer or assistant officer does not itself create
contract rights.
SECTION 4.4. Vacancies. A vacancy in any principal office because of
death, resignation, removal, disqualification or otherwise, shall be filled by
the Board of Directors for the unexpired portion of the term. A vacancy in any
assistant office because of death, resignation, removal, disqualification or
otherwise may be filled by the Board of Directors or the President.
SECTION 4.5. Chairman of the Board. The Chairman of the Board shall
preside at all annual and special meetings of shareholders and all
regular and special meetings of the Board of Directors, shall advise and
counsel with the President and shall assume such other duties as from time to
time may be assigned by the Board of Directors.
SECTION 4.6. President. The President shall be the chief executive
officer of the Corporation, shall have executive authority to see that all
orders and resolutions of the Board of Directors are carried into effect and
shall, subject to the control vested in the Board of Directors by the Wisconsin
business corporation law, administer and be responsible for the management of
the business and affairs of the Corporation. In the absence of the Chairman of
the Board, the
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President shall also perform the duties of the Chairman of the Board.
The President shall have authority to sign, execute and acknowledge, on behalf
of the Corporation, all deeds, mortgages, bonds, stock certificates, contracts,
leases, reports and all other documents or instruments necessary or proper to
be executed in the course of the Corporation's regular business or which shall
be authorized by the Board of Directors; and, except as otherwise provided by
law, or limited by the Board of Directors, he may authorize any Vice President
or other officer or agent of the Corporation to sign, execute and acknowledge
such documents or instruments in his place and stead. The President shall
perform such other duties as are incident to the office of President or as may
be prescribed from time to time by the Board of Directors.
SECTION 4.7. Vice Presidents. One or more of the Vice Presidents may
be designated as Senior Executive Vice President, Executive Vice President or
Senior Vice President. In the absence of the President or in the event of his
death, inability or refusal to act, the Vice Presidents in the order designated
at the time of their election, shall perform the duties of the President and
when so acting shall have all the powers of and be subject to all the
restrictions upon the President. Any Vice President may sign with the
Secretary or Assistant Secretary certificates for shares of the Corporation.
Any Vice President shall perform such other duties as are incident to the
office of Vice President or as may be prescribed from time to time by the Board
of Directors or the President.
SECTION 4.8. Secretary. The Secretary shall: (i) keep the minutes of
the shareholders and Board of Directors meetings in one or more books provided
for that purpose, (ii) see that all notices are duly given in accordance with
the provisions of the By-Laws or as required by law, (iii) be custodian of the
Corporation's records and of the seal of the Corporation, (iv) see that the
seal of the Corporation is affixed to all appropriate documents the execution
of which on behalf of the Corporation under its seal is duly authorized, (v)
keep a register of the address of each shareholder which shall be furnished to
the Secretary by such shareholder and (vi) perform all duties incident to the
office of Secretary and such other duties as may be prescribed from time to
time by the Board of Directors or the President.
SECTION 4.9. Treasurer. The Treasurer shall: (i) have charge and
custody of and be responsible for all funds and securities of the Corporation,
(ii) 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, and (iii) 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 by the Board of
Directors or the President.
SECTION 4.10. Assistant Secretaries and Assistant Treasurers. An
Assistant Secretary, if any, when authorized by the Board of Directors, may
sign with the President or any Vice President certificates for shares of the
Corporation, the issuance of which shall have been authorized by a resolution
of the Board of Directors. An Assistant Treasurer, if any, shall, if required
by the Board of Directors, give bonds for the faithful discharge of his duties
in such sums and with such sureties as the Board of Directors shall determine.
The Assistant Secretaries
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and Assistant Treasurers, in general, shall perform such duties as
shall be assigned to them by the Board of Directors, the President or the
Secretary or the Treasurer, respectively.
SECTION 4.11. Salaries. The salaries of the officers shall be fixed
from time to time by the Board of Directors or a committee authorized by the
Board to fix the same, and no officer shall be prevented from receiving such
salary by reason of the fact that he is also a director of the Corporation or a
member of such committee.
ARTICLE V. CONTRACTS; VOTING OF STOCK IN OTHER CORPORATIONS
SECTION 5.1. Contracts. The Board of Directors may authorize any
officer or officers, committee, or any agent or agents to enter into any
contract or execute and deliver any instrument in the name of and on behalf of
the Corporation, and such authorization may be general or confined to specific
instances.
SECTION 5.2. Voting of Stock in Other Corporations. The Board of
Directors by resolution shall from time to time designate one or more
persons to vote all stock held by this Corporation in any other corporation or
entity, may designate such persons in the alternative and may empower them to
execute proxies to vote in their stead. In the absence of any such designation
by the Board of Directors, the President shall be authorized to vote any stock
held by the Corporation or execute proxies to vote such stock.
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 6.1. Certificates for Shares. Shares of the Corporation may be
issued in certificated or uncertificated form. Such shares shall be in
the form determined by, or under the authority of a resolution of, the Board of
Directors, which shall be consistent with the requirements of the Wisconsin
business corporation law.
(a) Certificated Shares. Shares represented by certificates shall
be signed by the President or a Vice President and by the Secretary or
an Assistant Secretary. The validity of a share certificate is not
affected if a person who signed the certificate no longer holds office when
the certificate is issued. All certificates for shares shall be
consecutively numbered or otherwise identified. The name and address of
the person to whom shares 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 that in case of a lost, destroyed or mutilated certificate
a new one may be issued upon such terms and indemnity to the Corporation as
the Board of Directors may prescribe.
(b) Uncertificated Shares. Shares may also be issued in
uncertificated form. Within a reasonable time after issuance or
transfer of such shares, the Corporation shall
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send the shareholder a written statement of the information required on
share certificates under the Wisconsin business corporation law,
including: (1) the name of the Corporation; (2) the name of person to whom
shares were issued; (3) the number and class of shares and the designation
of the series, if any, of the shares issued; and (4) either a summary of
the designations, relative rights, preferences and limitations, applicable
to each class, and the variations in rights, preferences and limitations
determined for each series and the authority of the Board of Directors to
determine variations for future series, or a conspicuous statement that the
Corporation will furnish the information specified in this subsection
without charge upon the written request of the shareholder.
SECTION 6.2. Transfer of Shares. Transfer of shares of the Corporation
shall be made only on the stock transfer books of the Corporation by
the holder of record of such shares, or his or her legal representative, who
shall furnish proper evidence of authority to transfer or by an attorney
thereunto authorized by power of attorney duly executed and filed with the
Secretary of the Corporation, and on surrender for cancellation of the
certificate for such shares, if any. The person in whose name shares stand on
the books and records of the Corporation shall be deemed by the Corporation to
be the owner thereof for all purposes, except as otherwise required by the
Wisconsin business corporation law.
SECTION 6.3. Stock Regulations. The Board of Directors shall have the
power and authority to make all such further rules and regulations not
inconsistent with the statutes of the State of Wisconsin as they may deem
expedient concerning the issue, transfer and registration of shares of the
Corporation represented in certificated or uncertificated form, including the
appointment or designation of one or more stock transfer agents and one or more
stock registrars.
ARTICLE VII. INDEMNIFICATION; INSURANCE
SECTION 7.1. Indemnity of Directors, Officers, Employees and Designated
Agents.
(a) Definitions to Indemnification and Insurance Provisions.
(1) "Director, Officer, Employee or Agent" means any of the
following: (i) A natural person who is or was a director,
officer, employee or agent of the Corporation; (ii) A natural person
who, while a director, officer, employee or agent of the Corporation,
is or was serving either pursuant to the Corporation's specific
request or as a result of the nature of such person's duties to the
Corporation as a director, officer, partner, trustee, member of any
governing or decision making committee, employee or agent of another
corporation or foreign corporation, partnership, joint venture, trust
or other enterprise; (iii) A natural person who, while a director,
officer, employee or agent of the Corporation, is or was serving an
employee benefit plan because his or her duties to the Corporation
also impose duties on, or otherwise involve services by, the person to
the plan or to participants in or beneficiaries of the plan; or (iv)
Unless the context requires otherwise, the estate or personal
representative of a director, officer, employee or
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agent. Notwithstanding the foregoing, an agent falls within
the foregoing definition only upon a resolution of the Board of
Directors or committee appointed thereby that such agent shall be
entitled to the indemnification provided herein.
(2) "Liability" means the obligation to pay a judgment,
penalty, assessment, forfeiture or fine, including an excise
tax assessed with respect to an employee benefit plan, the agreement
to pay any amount in settlement of a Proceeding (whether or not
approved by a court order), and reasonable expenses and interest
related to the foregoing.
(3) "Party" means a natural person who was or is, or who is
threatened to be made, a named defendant or respondent in a
Proceeding.
(4) "Proceeding" means any threatened, pending or completed
civil, criminal, administrative or investigative action, suit,
arbitration or other proceeding, whether formal or informal (including
but not limited to any act or failure to act alleged or determined to
have been negligent, to have violated the Employee Retirement Income
Security Act of 1974, or to have violated Section 180.0833 of the
Wisconsin Statutes, or any successor thereto, regarding improper
dividends, distributions of assets, purchases of shares of the
Corporation, or loans to officers), 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 or entity.
(5) "Expenses" means all reasonable fees, costs, charges,
disbursements, attorneys' fees and any other expenses
incurred in connection with a Proceeding.
(b) Indemnification of Officers, Directors, Employees and Agents.
(1) The Corporation shall indemnify a Director, Officer,
Employee or Agent to the extent he or she has been successful on the
merits or otherwise in the defense of any Proceeding, for all
reasonable Expenses in a Proceeding if the Director, Officer, Employee
or Agent was a Party because he or she is a Director, Officer,
Employee or Agent of the Corporation.
(2) In cases not included under subsection (1), the
Corporation shall indemnify a Director, Officer, Employee or Agent
against Liability and Expenses incurred in a Proceeding to which the
Director, Officer, Employee or Agent was a Party because he or she is
a Director, Officer, Employee or Agent of the Corporation, unless it
is determined by final judicial adjudication that such person breached
or failed to perform a duty owed to the Corporation which constituted
any of the following:
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(i) A willful failure to deal fairly with the Corporation or
its shareholders in connection with a matter in which the
Director, Officer, Employee or Agent has a material conflict of
interest;
(ii) A violation of criminal law, unless the Director,
Officer, Employee or Agent 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 Director, Officer,
Employee or Agent derived an improper personal profit; or
(iv) Willful misconduct.
(3) Indemnification under this Section 7.1 is not required to
the extent the Director, Officer, Employee or Agent has previously
received indemnification or allowance of expenses from any person or
entity, including the Corporation, in connection with the same
Proceeding.
(4) Indemnification required under subsection (b) (1) shall be
made within 10 days of receipt of a written demand for
indemnification. Indemnification required under subsection (b) (2)
shall be made within 30 days of receipt of a written demand for
indemnification.
(5) Upon written request by a Director, Officer, Employee or
Agent who is a Party to a Proceeding, the Corporation shall pay or
reimburse his or her reasonable Expenses as incurred if the Director,
Officer, Employee or Agent provides the Corporation with all of the
following:
(i) A written affirmation of his or her good faith
belief that he or she is entitled to indemnification under
Section 7.1; and
(ii) A written undertaking, executed personally or on his
or her behalf, to repay all amounts advanced without interest
to the extent that it is ultimately determined that
indemnification under Section 7.1(b)(2) is prohibited. The
undertaking under this subsection shall be accepted without
reference to the ability of the Director, Officer, Employee or
Agent to repay the allowance. The undertaking shall be
unsecured.
(c) Determination that Indemnification is Proper.
(1) Unless provided otherwise by a written agreement between
the Director, Officer, Employee or Agent and the Corporation,
determination of whether indemnification is required under subsection
(b) shall be made by one of the following methods, which in the case
of a Director or Officer seeking
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indemnification shall be selected by such Director or Officer:
(i) by a majority vote of a quorum of the Board of Directors
consisting of directors who are not at the time parties to the same or
related proceedings or, if a quorum of disinterested directors cannot
be obtained, by a majority vote of a committee duly appointed by the
Board of Directors (which appointment by the Board may be made by
directors who are parties to the proceeding) consisting solely of two
or more directors who are not at the time parties to the same or
related proceedings, (ii) by a panel of three arbitrators consisting
of (a) one arbitrator selected by a quorum of the Board of Directors
or its committee constituted as required under (i), above, 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, (b) one arbitrator selected by the
director or officer seeking indemnification and (c) one arbitrator
selected by the other two arbitrators, (iii) by an affirmative vote of
shareholders as provided under Section 2.9, except that shares owned
by, or voted under the control of, persons who are at the time parties
to the same or related proceedings, whether as plaintiffs or
defendants or in any other capacity, may not be voted in making the
determination, or (iv) by a court of competent jurisdiction as
permitted under the Wisconsin business corporation law; provided,
however, that with respect to any additional right to indemnification
permissible under the Wisconsin business corporation law and granted
by the Corporation, the determination of whether such additional right
of indemnification is required shall be made by any method permissible
under the Wisconsin business corporation law, as such methods may be
limited by the grant of such additional right to indemnification.
(2) A Director, Officer, Employee or Agent who seeks
indemnification under this Section 7.1 shall make a written
request to the Corporation. As a further precondition to any right to
receive indemnification, the writing shall contain a declaration that
the Corporation shall have the right to exercise all rights and
remedies available to such Director, Officer, Employee or Agent
against any other person, corporation, foreign corporation,
partnership, joint venture, trust or other enterprise. arising out
of, or related to, the Proceeding which resulted in the Liability and
the Expense for which such Director, Officer, Employee or Agent is
seeking indemnification, and that the Director, Officer, Employee or
Agent is hereby deemed to have assigned to the Corporation all such
rights and remedies.
(d) Insurance. The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who is a Director, Officer,
Employee or Agent against any Liability asserted against or incurred by the
individual in any such capacity or arising out of his status as such,
regardless of whether the Corporation is required or authorized to
indemnity or allow expenses to the individual under this Section 7.1.
(e) Severability. The provisions of this Section 7.1 shall not
apply in any circumstance where a court of competent jurisdiction determines
that indemnification
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would be invalid as against public policy, but such provisions shall
not apply only to the extent that they are invalid as against public policy
and shall otherwise remain in full force and effect.
(f) Limitation or Expansion of Indemnification. The right to
indemnification under this Section 7.1 may be limited or reduced only
by subsequent affirmative vote of not less than two-thirds of the
Corporation's outstanding capital stock entitled to vote on such matters.
Any limitation or reduction in the right to indemnification may only be
prospective from the date of such vote. The Board of Directors, however,
shall have the authority to expand the indemnification permitted under this
Section 7.1 to the fullest extent permissible under the Wisconsin business
corporation law as in effect on the date of any such resolution with or
without further amendment to this Section 7.1.
ARTICLE VIII. AMENDMENTS
SECTION 8.1. Amendment by the Board of Directors. The By-Laws of the
Corporation may be amended or repealed by the Board of Directors unless any of
the following apply:
(a) The Articles of Incorporation, the particular by-law or the
Wisconsin business corporation law reserve this power exclusively to
the shareholders in whole or part;
(b) The shareholders in adopting, amending, or repealing a
particular by-law provide expressly within the by-law that the Board of
Directors may not amend, repeal or readopt that by-law; or
(c) The by-law fixes a greater or lower quorum requirement or
greater voting requirement for shareholders.
Action by the Board of Directors to adopt or amend a by-law that
changes the quorum or voting requirement for the Board of Directors must meet
the same quorum requirement and be adopted by the same vote required to take
action under the quorum and voting requirement then in effect.
SECTION 8.2 . Amendment by the Corporation's Shareholders. The
Corporation's shareholders may amend or repeal the Corporation's By-Laws or
adopt new by- laws even though the Board of Directors may also amend or repeal
the Corporation's By-Laws or adopt new by- laws. The adoption or amendment of
a by-law that adds, changes or deletes a greater or lower quorum requirement or
a greater voting requirement for shareholders or the Board of Directors must
meet the same quorum and voting requirement then in effect.
ARTICLE IX. CORPORATE SEAL
SECTION 9.1. Corporate Seal. The Board of Directors may provide for a
corporate seal which may be circular in form and have inscribed thereon any
designation including the name of the corporation, Wisconsin as the state of
incorporation, and the words "Corporate Seal." Any
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instrument executed in the corporate name by the proper officers of the
Corporation under any seal, including the words "Seal," "Corporate Seal" or
similar designation, is sealed even though the corporate seal is not used.
ARTICLE X. EMERGENCY BY-LAWS
SECTION 10.1. Emergency By-Laws. Unless the Articles of Incorporation
provide otherwise, the following provisions of this Article X shall be
effective during an "Emergency," which is defined as a catastrophic event that
prevents a quorum of the Corporation's directors from being readily assembled.
SECTION 10.2. Notice of Board Meetings. During an Emergency, any one
member of the Board of Directors or any one of the following officers: Chairman
of the Board, President, any Vice-President or Secretary, may call a meeting of
the Board of Directors. Notice of such meeting need be given only to those
directors whom it is practicable to reach, and may be given in any practical
manner, including by publication or radio. Such notice shall be given at least
six hours prior to commencement of the meeting.
SECTION 10.3. Temporary Directors and Quorum. One or more officers of
the Corporation present at the Emergency meeting of the Board of Directors, as
is necessary to achieve a quorum, shall be considered to be directors for the
meeting, and shall so serve in order of rank, and within the same rank, in
order of seniority. In the event that less than a quorum (as determined by
Section 3.11) of the directors are present (including any officers who are to
serve as directors for the meeting), those directors present (including the
officers serving as directors) shall constitute a quorum.
SECTION 10.4. Actions Permitted To Be Taken. The board as constituted in
Section 10.3, and after notice as set forth in Section 10.2 may:
(a) Officers' Powers. Prescribe emergency powers to any officers of
the Corporation;
(b) Delegation of Any Power. Delegate to any officer or director,
any of the powers of the Board of Directors;
(c) Lines of Succession. Designate lines of succession of officers
and agents, in the event that any of them are unable to discharge their
duties;
(d) Relocate Principal Place of Business. Relocate the
principal place of business, or designate successive or simultaneous
principal places of business; and
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(e) All Other Action. Take any and all other action, convenient,
helpful, or necessary to carry on the business of the Corporation.
Corporate action taken in good faith in accordance with the emergency
by-laws binds the Corporation and may not be used to impose liability on any of
the Corporation's directors, officers, employees or agents.
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