Exhibit 3.2
BONE CARE INTERNATIONAL, INC.
BY-LAWS
OF
BONE CARE INTERNATIONAL, INC.
(a Wisconsin corporation)
(As Amended and Restated as of November 1, 1999)
BY-LAWS
OF
BONE CARE INTERNATIONAL, INC.
(a Wisconsin Corporation)
Introduction - Variable References
0.01. Required notice of shareholders' meeting (See Section
2.04): not less than 10 days.
0.02. Authorized number of Directors (See Section 3.01): 5.
0.03. Required notice of Directors' meeting (See Section 3.05):
(a) not less than 72 hours if by mail, and
(b) not less than 36 hours if by telegram or
personal delivery.
0.04. Authorized number of Vice Presidents (See Section 4.01): 4.
TABLE OF CONTENTS
ARTICLE I. OFFICES. . . . . . . . . . . . . . . . . . . . . . . . 1
1.01 Principal and Business Offices. . . . . . . . . . . . . . 1
1.02 Registered Office . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II. SHAREHOLDERS. . . . . . . . . . . . . . . . . . . . . 1
2.01 Annual Meeting. . . . . . . . . . . . . . . . . . . . . . 1
2.02 Special Meeting . . . . . . . . . . . . . . . . . . . . . 2
2.03 Place of Meeting. . . . . . . . . . . . . . . . . . . . . 3
2.04 Notice of Meeting . . . . . . . . . . . . . . . . . . . . 3
2.06 Voting Record . . . . . . . . . . . . . . . . . . . . . . 3
2.07 Quorum and Voting Requirements. . . . . . . . . . . . . . 3
2.08 Conduct of Meetings . . . . . . . . . . . . . . . . . . . 4
2.09 Proxies . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.10 Voting of Shares. . . . . . . . . . . . . . . . . . . . . 4
2.11 Voting of Shares by Certain Holders . . . . . . . . . . . 4
(a) Other Corporations. . . . . . . . . . . . . . . . . 4
(b) Legal Representatives and Fiduciaries . . . . . . . 4
(c) Pledgees. . . . . . . . . . . . . . . . . . . . . . 5
(d) Treasury Stock and Subsidiaries . . . . . . . . . . 5
(e) Minors. . . . . . . . . . . . . . . . . . . . . . . 5
(f) Incompetents and Spendthrifts . . . . . . . . . . . 5
(g) Joint Tenants . . . . . . . . . . . . . . . . . . . 5
2.12 Waiver of Notice by Shareholders. . . . . . . . . . . . . 5
2.13 Unanimous Consent Without Meeting . . . . . . . . . . . . 5
ARTICLE III. BOARD OF DIRECTORS . . . . . . . . . . . . . . . . . 5
3.01 General Powers and Number . . . . . . . . . . . . . . . . 5
3.02 Tenure and Qualifications . . . . . . . . . . . . . . . . 6
3.03 Regular Meetings. . . . . . . . . . . . . . . . . . . . . 6
3.04 Special Meetings. . . . . . . . . . . . . . . . . . . . . 7
3.05 Notice; Waiver. . . . . . . . . . . . . . . . . . . . . . 7
3.06 Quorum. . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.07 Manner of Acting. . . . . . . . . . . . . . . . . . . . . 7
3.08 Conduct of Meetings . . . . . . . . . . . . . . . . . . . 7
3.09 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . 7
3.10 Compensation. . . . . . . . . . . . . . . . . . . . . . . 7
3.11 Presumption of Assent . . . . . . . . . . . . . . . . . . 8
3.12 Committees. . . . . . . . . . . . . . . . . . . . . . . . 8
3.13 Unanimous Consent Without Meeting . . . . . . . . . . . . 8
3.14 Meetings By Telephone Or By Other Communication
Technology. . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV. OFFICERS. . . . . . . . . . . . . . . . . . . . . . . 8
4.01 Number. . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.02 Election and Term of Office . . . . . . . . . . . . . . . 8
4.03 Removal . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.04 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . 9
4.05 Chairman of the Board . . . . . . . . . . . . . . . . . . 9
4.06 President . . . . . . . . . . . . . . . . . . . . . . . . 9
4.07 The Executive Vice President. . . . . . . . . . . . . . . 9
4.08 The Vice Presidents.. . . . . . . . . . . . 9
4.09 The Secretary.. . . . . . . . . . . . . . . . . . . . . . 9
4.10 The Treasurer.. . . . . . . . . . . . . . . . . . . . . .10
4.11 Assistant Secretaries and Assistant Treasurers. . . . . .10
4.12 Other Assistants and Acting Officers. . . . . . . . . . .10
4.13 Salaries. . . . . . . . . . . . . . . . . . . . . . . . .10
ARTICLE V. CONTRACTS, LOANS, CHECKS
AND DEPOSITS: SPECIAL CORPORATE ACTS . . . . . . . . . . . . .10
5.01 Contracts.. . . . . . . . . . . . . . . . . . . . . . . .10
5.02 Loans.. . . . . . . . . . . . . . . . . . . . . . . . . .11
5.03 Checks, Drafts, etc.. . . . . . . . . . . . . . . . . . .11
5.04 Deposits. . . . . . . . . . . . . . . . . . . . . . . . .11
5.05 Voting of Securities Owned by this Corporation. . . . . .11
ARTICLE VI. CERTIFICATES FOR
SHARES AND THEIR TRANSFER . . . . . . . . . . . . . . . . . . .12
6.01 Certificates for Shares . . . . . . . . . . . . . . . . .12
6.02 Facsimile Signatures and Seal.. . . . . . . . . . . . . .12
6.03 Signature by Former Officers. . . . . . . . . . . . . . .12
6.04 Transfer of Shares. . . . . . . . . . . . . . . . . . . .12
6.05 Restrictions on Transfer. . . . . . . . . . . . . . . . .12
6.06 Lost, Destroyed or Stolen Certificates. . . . . . . . . .12
6.07 Consideration for Shares. . . . . . . . . . . . . . . . .12
6.08 Stock Regulations.. . . . . . . . . . . . . . . . . . . .13
ARTICLE VII. WAIVER OF NOTICE . . . . . . . . . . . . . . . . . .13
ARTICLE VIII. UNANIMOUS CONSENT
WITHOUT A MEETING . . . . . . . . . . . . . . . . . . . . . . .13
ARTICLE IX. INDEMNIFICATION . . . . . . . . . . . . . . . . . . .13
9.01 Indemnification for Successful Defense. . . . . . . . . .13
9.02 Other Indemnification.. . . . . . . . . . . . . . . . . .13
9.03 Written Request.. . . . . . . . . . . . . . . . . . . . .14
9.04 Nonduplication. . . . . . . . . . . . . . . . . . . . . .14
9.05 Determination of Right to Indemnification.. . . . . . . .14
9.06 Advance Expenses. . . . . . . . . . . . . . . . . . . . .15
9.07 Nonexclusivity. . . . . . . . . . . . . . . . . . . . . .15
9.08 Court-Ordered Indemnification.. . . . . . . . . . . . . .16
9.09 Insurance.. . . . . . . . . . . . . . . . . . . . . . . .16
9.10 Securities Law Claims.. . . . . . . . . . . . . . . . . .16
9.11 Liberal Construction. . . . . . . . . . . . . . . . . . .16
9.12 Definitions Applicable to This Article. . . . . . . . . .16
ARTICLE X. SEAL
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
ARTICLE XI. AMENDMENTS. . . . . . . . . . . . . . . . . . . . . .17
11.01 By Shareholders. . . . . . . . . . . . . . . . . . . . .17
11.02 By Directors.. . . . . . . . . . . . . . . . . . . . . .17
11.03 Implied Amendments.. . . . . . . . . . . . . . . . . . .18
ARTICLE I. OFFICES
1.01 Principal and Business Offices. The Corporation may
have such principal and other business offices, either within or
without the State of Wisconsin, as the Board of Directors may
designate or as the business of the Corporation may require from time
to time.
1.02 Registered Office. The registered office of the
Corporation required by the Wisconsin Business Corporation Law to be
maintained in the State of Wisconsin may be, but need not be,
identical with the principal office in the State of Wisconsin, and the
address of the registered office may be changed from time to time by
the Board of Directors or by the registered agent. The business
office of the registered agent of the Corporation shall be identical
to such registered office.
ARTICLE II. SHAREHOLDERS
2.01 Annual Meeting. (a) An annual meeting of
shareholders shall be held for the election of directors at such date,
time and place as may be fixed by resolution of the Board of
Directors from time to time. Subject to paragraph (b) of this Section
2.01, any other proper business may be transacted at an annual
meeting.
(b) Only such business shall be conducted at an annual
meeting of shareholders as shall have been properly brought before the
meeting. For business to be properly brought before the meeting, it
must be: (i) authorized by the Board of Directors and specified in the
notice, or a supplemental notice, of the meeting, (ii) otherwise
brought before the meeting by or at the direction of the Board of
Directors or the chairman of the meeting, or (iii) otherwise properly
brought before the meeting by a shareholder. For business to be
properly brought before an annual meeting by a shareholder, the
shareholder must have given written notice thereof to the Secretary,
delivered or mailed to and received at the principal executive offices
of the Corporation (x) not less than 60 days nor more than 90 days
prior to the meeting, or (y) if less than 70 days' notice of the
meeting or prior public disclosure of the date of the meeting is given
or made to shareholders, not later than the close of business on the
tenth day following the day on which the notice of the meeting was
mailed or, if earlier, the day on which such public disclosure was
made. A shareholder's notice to the Secretary shall set forth as to
each item of business the shareholder proposes to bring before the
meeting (1) a brief description of such item and the reasons for
conducting such business at the meeting, (2) the name and address, as
they appear on the Corporation's records, of the shareholder proposing
such business, (3) the class and number of shares of stock of the
Corporation which are beneficially owned by the shareholder (for
purposes of the regulations under Sections 13 and 14 of the Securities
Exchange Act of 1934, as amended), and (4) any material interest of
the shareholder in such business. No business shall be conducted at
any annual meeting except in accordance with the procedures set forth
in this paragraph (b). The chairman of the meeting at which any
business is proposed by a shareholder shall, if the facts warrant,
determine and declare to the meeting that such business was not
properly brought before the meeting in accordance with the provisions
of this paragraph (b), and, in such event, the business not properly
before the meeting shall not be transacted.
2.02 Special Meeting. (a) Special meetings of the
shareholders, for any purpose or purposes, unless otherwise prescribed
by statute, may be called by the Chairman of the Board (if one be
designated), or the President or the Board of Directors or by the
person designated in the written request of the holders of not less
than one-tenth of all shares of the Corporation entitled to vote at
the meeting.
(b) Only such business shall be conducted at a special
meeting of shareholders as shall have been properly brought before the
meeting. For business to be properly brought before the meeting, it
must be: (i) authorized by the Board of Directors and specified in the
notice, or a supplemental notice, of the meeting, (ii) otherwise
brought before the meeting by or at the direction of the Board of
Directors or the chairman of the meeting, or (iii) otherwise properly
brought before the meeting by a shareholder. For business to be
properly brought before a special meeting by a shareholder, the
shareholder must have given written notice thereof to the Secretary,
delivered or mailed to and received at the principal executive offices
of the Corporation (x) not less than 60 days nor more than 90 days
prior to the meeting, or (y) if less than 70 days' notice of the
meeting or prior public disclosure of the date of the meeting is given
or made to shareholders, not later than the close of business on the
tenth day following the day on which the notice of the meeting was
mailed or, if earlier, the day on which such public disclosure was
made. A shareholder's notice to the Secretary shall set forth as to
each item of business the shareholder proposes to bring before the
meeting (1) a brief description of such item and the reasons for
conducting such business at the meeting, (2) the name and address, as
they appear on the Corporation's records, of the shareholder proposing
such business, (3) the class and number of shares of stock of the
Corporation which are beneficially owned by the shareholder (for
purposes of the regulations under Sections 13 and 14 of the Securities
Exchange Act of 1934, as amended), and (4) any material interest of
the shareholder in such business. No business shall be conducted at
any special meeting except in accordance with the procedures set forth
in this paragraph (b). The chairman of the meeting at which any
business is proposed by a shareholder shall, if the facts warrant,
determine and declare to the meeting that such business was not
properly brought before the meeting in accordance with the provisions
of this paragraph (b), and, in such event, the business not properly
before the meeting shall not be transacted.
2.03 Place of Meeting. The Board of Directors may
designate any place, either within or without the State of Wisconsin,
as the place of meeting for any annual meeting or for any special
meeting called by the Board of Directors. A waiver of notice signed
by all shareholders entitled to vote at a meeting may designate any
place, either within or without the State of Wisconsin, as the place
for the holding of such meeting. If no designation is made, or if a
special meeting be otherwise called, the place of meeting shall be the
principal business office of the Corporation in the State of Wisconsin
or such other suitable place in the county of such principal office
as may be designated by the person calling such meeting, but any
meeting may be adjourned to reconvene at any place designated by vote
of a majority of the shares represented thereat.
2.04 Notice of Meeting. Except as otherwise provided by
law, the Articles of Incorporation or these by-laws, written notice
stating the place, day and hour of the meeting and, in case of a
special meeting, the purpose or purposes for which the meeting is
called, shall be delivered not less than the number of days set forth
in Section 0.01 (unless a longer period is required by law or the
articles of incorporation) nor more than sixty days before the date
of the meeting, either personally or by mail, by or at the direction
of the Chairman of the Board (if one be designated), or the President,
or the Secretary, or other Officer or persons calling the meeting, to
each shareholder of record entitled to vote at such meeting. If
mailed, such notice shall be deemed to be delivered when deposited in
the United States mail, addressed to the shareholder at his address
as it appears on the stock record books of the Corporation, with
postage thereon prepaid.
2.05 Closing of Transfer Books or Fixing of Record Date.
For the purpose of determining shareholders entitled to notice of or
to vote at any meeting of shareholders or any payment of any dividend,
or in order to make a determination of shareholders for any other
proper purpose, the Board of Directors may provide that the stock
transfer books shall be closed for a stated period but not to exceed,
in any case seventy days. If the stock transfer books shall be closed
for the purpose of determining shareholders entitled to notice of or
to vote at a meeting of shareholders, such books shall be closed for
at least ten days immediately preceding such meeting. In lieu of
closing the stock transfer books, the Board of Directors may fix in
advance a date as the record date for any such determination of
shareholders, such date in any case to be not more than seventy days
and, in case of a meeting of shareholders, not less than ten days
prior to the date on which the particular action requiring such
determination of shareholders, is to be taken. If the stock transfer
books are not closed and no record date is fixed for the determination
of shareholders entitled to notice of or to vote at a meeting of
shareholders, or shareholders entitled to receive payment of a
dividend, the close of business on the date on which notice of the
meeting is mailed or on the date on which the resolution of the Board
of Directors declaring such dividend is adopted, as the case may be,
shall be the record date for such determination of shareholders. When
a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, such
determination shall be applied to any adjournment thereof except where
the determination has been made through the closing of the stock
transfer books and the stated period of closing has expired.
2.06 Voting Record. The Officer or agent having charge of
the stock transfer books for shares of the Corporation shall, before
each meeting of shareholders, make a complete list of the shareholders
entitled to vote at such meeting, or any adjournment thereof, with the
address of and the number of shares held by each. Such record shall
be produced and kept open at the time and place of the meeting and
shall be subject to the inspection of any shareholder during the whole
time of the meeting for the purposes of the meeting. The original
stock transfer books shall be prima facie evidence as to who are the
shareholders entitled to examine such record or transfer books or to
vote at any meeting of shareholders. Failure to comply with the
requirements of this section shall not affect the validity of any
action taken at such meeting.
2.07 Quorum and Voting Requirements. Except as otherwise
provided in the articles of incorporation or the Wisconsin Business
Corporation Law, a majority of the votes entitled to be cast on a
matter, represented in person or by proxy, shall constitute a quorum
for action on that 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
considered present for purposes of determining whether a quorum exists
for the remainder of the meeting and for any adjournment of that
meeting unless a new record date is or must be set for that adjourned
meeting. If a quorum is present, action on a matter, other than the
election of directors, is approved if the votes cast favoring the
action exceed the votes cast opposing the action. 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. In
the preceding sentence, "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. Though less than
a quorum of the outstanding shares are represented at a meeting, a
majority of the shares so represented may adjourn the meeting from
time to time without further notice. At such adjourned meeting at
which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as
originally notified.
2.08 Conduct of Meetings. The Chairman of the Board (if
one be designated), or in the Chairman's absence, the President, or
in the President's absence, the Executive Vice President (if one be
designated), or in the Executive Vice President's absence, a Vice
President in the order provided under Section 4.08, and in their
absence, any person chosen by the shareholders present shall call the
meeting of the shareholders to order and shall act as chairman of the
meeting, and the Secretary of the Corporation shall act as Secretary
of all meetings of the shareholders, but, in the absence of the
Secretary, the presiding Officer may appoint any other person to act
as Secretary of the meeting.
2.09 Proxies. At all meetings of shareholders, a
shareholder entitled to vote may vote in person or by proxy appointed
in writing by the shareholder or by his or her duly authorized
attorney-in-fact. Such proxy shall be filed with the Secretary of the
Corporation before or at the time of the meeting. Unless otherwise
provided in the proxy, a proxy may be revoked at any time before it
is voted, either by written notice filed with the Secretary or the
acting Secretary of the meeting or by oral notice given by the
shareholder to the presiding officer during the meeting. The presence
of a shareholder who has filed his or her proxy shall not of itself
constitute a revocation. No proxy shall be valid after eleven months
from the date of its execution, unless otherwise provided in the
proxy. The Board of Directors shall have the power and authority to
make rules establishing presumptions as to the validity and
sufficiency of proxies.
2.10 Voting of Shares. Each outstanding share shall be
entitled to one vote upon each matter submitted to a vote at a meeting
of shareholders, except to the extent that the voting rights of the
shares of any class or classes are enlarged, limited or denied by the
articles of incorporation.
2.11 Voting of Shares by Certain Holders.
(a) Other Corporations. Shares standing in the
name of another corporation may be voted either in person or by proxy,
by the president of such corporation or any other officer appointed
by such president. A proxy executed by any principal officer of such
other corporation or assistant thereto shall be conclusive evidence
of the signer's authority to act, in the absence of express notice to
this Corporation, given in writing to the Secretary of this
Corporation, or the designation of some other person by the Board of
Directors or by the by-laws of such other corporation.
(b) Legal Representatives and Fiduciaries. Shares
held by an administrator, executor, guardian, conservator, trustee in
bankruptcy, receiver or assignee for creditors may be voted by him or
her, either in person or by proxy, without a transfer of such shares
into his or her name, provided that there is filed with the Secretary
before or at the time of meeting proper evidence of his or her
incumbency and the number of shares held by him or her. Shares
standing in the name of a fiduciary may be voted by him or her, either
in person or by proxy. A proxy executed by a fiduciary shall be
conclusive evidence of the signer's authority to act, in the absence
of express notice to this Corporation, given in writing to the
Secretary of this Corporation, that such manner of voting is expressly
prohibited or otherwise directed by the document creating the
fiduciary relationship.
(c) Pledgees. A shareholder whose shares are
pledged shall be entitled to vote such shares until the shares have
been transferred into the name of the pledgee, and thereafter the
pledgee shall be entitled to vote the shares so transferred.
(d) Treasury Stock and Subsidiaries. Neither
treasury shares, nor shares held by another corporation if a majority
of the shares entitled to vote for the election of Directors of such
other corporation is held by this Corporation, shall be voted at any
meeting or counted in determining the total number of outstanding
shares entitled to vote, but shares of its own issue held by this
Corporation in a fiduciary capacity, or held by such other corporation
in a fiduciary capacity, may be voted and shall be counted in
determining the total number of outstanding shares entitled to vote.
(e) Minors. Shares held by a minor may be voted by
such minor in person or by proxy and no such vote shall be subject to
disaffirmance or avoidance, unless prior to such vote the Secretary
of the Corporation has received written notice or has actual knowledge
that such shareholder is a minor.
(f) Incompetents and Spendthrifts. Shares held by
an incompetent or spendthrift may be voted by such incompetent or
spendthrift in person or by proxy and no such vote shall be subject
to disaffirmance or avoidance, unless prior to such vote the Secretary
of the Corporation has actual knowledge that such shareholder has been
adjudicated an incompetent or spendthrift or actual knowledge of
filing of judicial proceedings for appointment of a guardian.
(g) Joint Tenants. Shares registered in the names
of two or more individuals who are named in the registration as joint
tenants may be voted in person or by proxy signed by any one or more
of such individuals if either (i) no other such individual or his or
her legal representative is present and claims the right to
participate in the voting of such shares or prior to the vote files
with the Secretary of the Corporation a contrary written voting
authorization or direction or written denial or authority of the
individual present or signing the proxy proposed to be voted or (ii)
all such other individuals are deceased and the Secretary of the
Corporation has no actual knowledge that the survivor has been
adjudicated not to be the successor to the interests of those
deceased.
2.12 Waiver of Notice by Shareholders. Whenever any
notice whatever is required to be given to any shareholder of the
Corporation under the articles of incorporation or by-laws or any
provision of law, a waiver thereof in writing, signed at any time,
whether before or after the time of meeting, by the shareholder
entitled to such notice, shall be deemed equivalent to the giving of
such notice; provided that such waiver in respect to any matter of
which notice is required under any provision of the Wisconsin Business
Corporation Law, shall contain the same information as would have been
required to be included in such notice, except the time and place of
meeting.
2.13 Unanimous Consent Without Meeting. Any action
required or permitted by the articles of incorporation or by-laws or
any provision of law to be taken at a meeting of the shareholders, may
be taken without a meeting if a consent in writing, setting forth the
action so taken, shall be signed by all of the shareholders entitled
to vote with respect to the subject matter thereof.
ARTICLE III. BOARD OF DIRECTORS
3.01 General Powers and Number. (a) The business and
affairs of the Corporation shall be managed by its Board of Directors.
The number of Directors of the Corporation shall be as provided in
Section 0.02, but shall be not less than five (5) nor more than twelve
(12).
The Board of Directors of the corporation shall be divided
into three (3) classes of not less than one (1) nor more than four (4)
Directors each. The term of office of the first class of Directors
shall expire at the first annual meeting after their initial election,
the term of office of the second class shall expire at the second
annual meeting after their initial election, and the term of office
of the third class shall expire at the third annual meeting after the
initial election. At each annual meeting after the initial
classification of the Board of Directors, the class of Directors whose
term expires at the time of such election shall be elected to hold
office until the third succeeding annual meeting.
(b) Only persons who are nominated in accordance with the
procedures set forth in this paragraph (b) shall be eligible for
election as directors of the Corporation. Nominations of persons for
election to the Board of Directors may be made at a meeting of
shareholders by the Board of Directors or by any shareholder of the
Corporation entitled to vote in the election of directors at the
meeting who complies with the notice procedures set forth in this
paragraph (b). Any nomination by a shareholder must be made by
written notice to the Secretary delivered or mailed to and received
at the principal executive offices of the Corporation (i) not less
than 60 days nor more than 90 days prior to the meeting, or (ii) if
less than 70 days' notice of the meeting or prior public disclosure
of the date of the meeting is given or made to shareholders, not later
than the close of business on the tenth day following the day on which
the notice of the meeting was mailed or, if earlier, the day on which
such public disclosure was made. A shareholder's notice to the
Secretary shall set forth (x) as to each person whom the shareholder
proposes to nominate for election or re-election as a director:
(1) the name, age, business address and residence address of such
person, (2) the principal occupation or employment of such person,
(3) the class and number of shares of stock of the Corporation which
are beneficially owned by such person (for the purposes of the
regulations under Sections 13 and 14 of the Securities Exchange Act
of 1934, as amended), and (4) any other information relating to such
person that would be required to be disclosed in solicitations of
proxies for the election of such person as a director of the
Corporation pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended, and such person's written consent to being
named in any proxy statement as a nominee and to serving as a director
if elected; and (y) as to the shareholder giving notice (5) the name
and address, as they appear on the Corporation's records, of such
shareholder and (6) the class and number of shares of stock of the
Corporation which are beneficially owned by such shareholder
(determined as provided in clause (x)(3) above). At the request of
the Board of Directors any person nominated by the Board of Directors
for election as a director shall furnish to the Secretary that
information required to be set forth in a shareholder's notice of
nomination which pertains to the nominee. The chairman of the meeting
at which a shareholder nomination is presented shall, if the facts
warrant, determine and declare to the meeting that such nomination was
not made in accordance with the procedures prescribed by this
paragraph (b), and, in such event, the defective nomination shall be
disregarded.
3.02 Tenure and Qualifications. Each Director shall hold
office until the next annual meeting of shareholders in the year in
which such Director's term expires and until his successor shall have
been elected, or until his prior death, resignation or removal. A
Director may be removed from office by affirmative vote of 80% of the
outstanding shares entitled to vote for the election of such Director,
taken at an annual meeting or a special meeting of shareholders called
for that purpose, and any vacancy so created may be filled by the
affirmative vote of 80% of such shares. A Director may resign at any
time by filing his written resignation with the Secretary of the
Corporation. Directors need not be residents of the State of
Wisconsin or shareholders of the Corporation.
3.03 Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this by-law
immediately after the annual meeting of shareholders, and each
adjourned session thereof. The place of such regular meeting shall
be the same as the place of the meeting of shareholders which precedes
it, or such other suitable place as may be announced at such meeting
of shareholders. The Board of Directors may provide, by resolution,
the time and place, either within or without the State of Wisconsin,
for the holding of additional regular meetings without other notice
than such resolution.
3.04 Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the President,
Secretary or any two Directors. The President or Secretary calling
any special meeting of the Board of Directors may fix any place,
either within or without the State of Wisconsin, as the place for
holding any special meeting of the Board of Directors called by them,
and if no other place is fixed, the place of meeting shall be the
principal business office of the Corporation in the State of Wisconsin.
3.05 Notice; Waiver. Notice of each meeting of the Board
of Directors (unless otherwise provided in or pursuant to Section
3.03) shall be given by written notice delivered personally or mailed
or given by telegram to each Director at his or her business address
or at such other address as such Director shall have designated in
writing filed with the Secretary, in each case not less than that
number of hours prior thereto as set forth in Section 0.03. If
mailed, such notice shall be deemed to be delivered when deposited in
the United States mail so addressed, with postage thereon prepaid.
If notice be given by telegram, such notice shall be deemed to be
delivered when the telegram is delivered to the telegraph company.
Whenever any notice whatever is required to be given to any Director
of the Corporation under the articles of incorporation or by-laws or
any provision of law, a waiver thereof in writing, signed at any time,
whether before or after the time of meeting, by the Director entitled
to such notice, shall be deemed equivalent to the giving of such
notice. The attendance of a Director at a meeting shall constitute
a waiver of notice of such meeting, except where a Director attends
a meeting and objects thereat to the transaction of any business
because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or
special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
3.06 Quorum. Except as otherwise provided by law or by
the articles of incorporation or these by-laws, a majority of the
number of Directors as provided in Section 0.03 shall constitute a
quorum for the transaction of business at any meeting of the Board of
Directors, but a majority of the Directors present (though less than
such quorum) may adjourn the meeting from time to time without further
notice.
3.07 Manner of Acting. The act of the majority of the
Directors present at a meeting at which a quorum is present shall be
the act of the Board of Directors, unless the act of a greater number
is required by law or by the articles of incorporation or these by-
laws.
3.08 Conduct of Meetings. The Chairman of the Board (if
one be designated), or in the Chairman's absence, the President, or
in the President's absence, the Executive Vice President (if one be
designated), or in the Executive Vice President's absence, a Vice
President in the order provided under Section 4.06, and in their
absence, any Director chosen by the Directors present, shall call
meetings of the Board of Directors to order and shall act as chairman
of the meeting. The Secretary of the Corporation shall act as
Secretary of all meetings of the Board of Directors, but in the
absence of the Secretary, the presiding Officer may appoint any
Assistant Secretary or any Director or other person present to act as
Secretary of the meeting.
3.09 Vacancies. Any vacancy occurring in the Board of
Directors, including a vacancy created by an increase in the number
of Directors, may be filled until the next succeeding annual election
by the affirmative vote of a majority of the Directors then in office,
though less than a quorum of the Board of Directors; provided, that
in case of a vacancy created by the removal of a Director by vote of
the shareholders, the shareholders shall have the right to fill such
vacancy at the same meeting or any adjournment thereof by the
affirmative vote of 80% of the outstanding shares entitled to vote for
the election of such Directors.
3.10 Compensation. The Board of Directors, by affirmative
vote of a majority of the Directors then in office, and irrespective
of any personal interest of any of its members, may establish
reasonable compensation of all Directors for services to the
Corporation as Directors, Officers or otherwise, or may delegate such
authority to an appropriate committee. The Board of Directors also
shall have authority to provide for or to delegate authority to an
appropriate committee to provide for reasonable pensions, disability
or death benefits, and other benefits of payments, to Directors,
Officers and employees and to their estates, families, dependents or
beneficiaries on account of prior services rendered by such Directors,
Officers and employees to the Corporation.
3.11 Presumption of Assent. A Director of the Corporation
who is present at a meeting of the Board of Directors or a committee
thereof of which he or she is a member, at which action on any
corporate matter is taken, shall be presumed to have assented to the
action taken unless his or her dissent shall be entered in the minutes
of the meeting or unless he or she shall file his or her written
dissent to such action with the person acting as the Secretary of the
meeting before the adjournment thereof or shall forward such dissent
by registered mail to the Secretary of the Corporation immediately
after the adjournment of the meeting. Such right to dissent shall not
apply to a Director who voted in favor of such action.
3.12 Committees. The Board of Directors, by resolution
adopted by the affirmative vote of a majority of the number of
Directors as provided in Section 0.03, may designate one or more
committees, each committee to consist of two or more Directors elected
by the Board of Directors, which to the extent provided in said
resolution as initially adopted, and as thereafter supplemented or
amended by further resolution adopted by a like vote, shall have and
may exercise, when the Board of Directors is not in session, the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, except action in respect to dividends to
shareholders, election of the principal officers or the filling of
vacancies in the Board of Directors or committees created pursuant to
this section. The Board of Directors may elect one or more of its
members as alternate members of any such committee who may take the
place of any absent member or members at any meeting of such
committee, upon request by the President or upon request by the
chairman of such meeting. Each such committee shall fix its own rules
governing the conduct of its activities and shall make such reports
to the Board of Directors of its activities as the Board of Directors
may request.
3.13 Unanimous Consent Without Meeting. Any action
required or permitted by the articles of incorporation or by-laws or
any provision of law to be taken by the Board of Directors at a
meeting or by resolution may be taken without a meeting if a consent
in writing, setting forth the action so taken, shall be signed by all
of the Directors then in office.
3.14 Meetings By Telephone Or By Other Communication
Technology. Meetings of the Board of Directors or committee may be
conducted by telephone or by other communication technology in
accordance with Section 180.0820 of the Wisconsin Business Corporation
Law. At any such meeting, all participating directors shall be
informed that a meeting is taking place at which official business may
be transacted.
ARTICLE IV. OFFICERS
4.01 Number. The principal Officers of the Corporation
shall be a President, the number of Vice Presidents as provided in
Section 0.04, a Secretary, and a Treasurer, each of whom shall be
elected by the Board of Directors. Such other Officers and assistant
officers as may be deemed necessary may be elected or appointed by the
Board of Directors. Any two or more offices may be held by the same
person, except the offices of President and Secretary and the offices
of President and Vice President.
4.02 Election and Term of Office. The Officers of the
Corporation to be elected by the Board of Directors shall be elected
annually by the Board of Directors at the first meeting of the Board
of Directors held after each annual meeting of the shareholders. If
the election of Officers shall not be held at such meeting, such
election shall be held as soon thereafter as conveniently may be.
Each Officer shall hold office until his or her successor shall have
been duly elected or until his or her prior death, resignation or
removal.
4.03 Removal. Any Officer or agent may be removed by the
Board of Directors whenever in its judgment the best interests of the
Corporation will be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed.
Election or appointment shall not of itself create contract rights.
4.04 Vacancies. A vacancy in any principal office because
of death, resignation, removal, disqualification or otherwise, shall
be filled by the Board of Directors for the unexpired portion of the
term.
4.05 Chairman of the Board. The Board of Directors may at
their discretion elect a Chairman of the Board. The Chairman of the
Board shall preside at all meetings of the shareholders and Board of
Directors, and shall carry out such other duties and have such
responsibilities as may be specified by the Board of Directors.
4.06 President. The President shall be the chief
executive officer of the Corporation and, subject to the control of
the Board of Directors, shall in general supervise and control all of
the business and affairs of the Corporation. He or she shall, when
present and in the absence of the Chairman, preside at all meetings
of the shareholders and of the Board of Directors. He or she shall
have authority, subject to such rules as may be prescribed by the
Board of Directors, to appoint such agents and employees of the
Corporation as he or she shall deem necessary, to prescribe their
powers, duties and compensation, and to delegate authority to them.
Such agents and employees shall hold office at the discretion of the
President. He or she shall have authority to sign, execute and
acknowledge, on behalf of the Corporation, all deeds, mortgages,
bonds, stock certificates, contracts, leases, reports and all other
documents or instruments necessary or proper to be executed in the
course of the Corporation's regular business, or which shall be
authorized by resolution of the Board of Directors; and, except as
otherwise provided by law or the Board of Directors, he or she may
authorize any Vice President or other Officer or agent of the
Corporation to sign, execute and acknowledge such documents or
instruments in his or her place and stead. In general, he or she
shall perform all duties incident to the office of chief executive
officer and such other duties as may be prescribed by the Board of
Directors from time to time.
4.07 The Executive Vice President. The Executive Vice
President, if one be designated, shall assist the President in the
discharge of supervisory, managerial and executive duties and
functions. In the absence of the President or in the event of his or
her death, inability or refusal to act, the Executive Vice President
shall perform the duties of the President and when so acting shall
have all the powers and duties of the President. He or she shall
perform such other duties as from time to time may be assigned to him
or her by the Board of Directors or the President.
4.08 The Vice Presidents. In the absence of the President
and the Executive Vice President or in the event of their death,
inability or refusal to act, or in the event for any reason it shall
be impracticable for them to act personally, the Vice President (or
in the event there be more than one Vice President, the Vice
Presidents in the order designated by the Board of Directors, or in
the absence of any designation, then in the order of their election)
shall perform the duties of the President, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
President. Any Vice President may sign, with the Secretary or
Assistant Secretary, certificates for shares of the Corporation; and
shall perform such other duties and have such authority as from time
to time may be delegated or assigned to him or her by the President,
the Executive Vice President or by the Board of Directors. The
execution of any instrument of the Corporation by any Vice President
shall be conclusive evidence, as to third parties, of his or her
authority to act in the stead of the President.
4.09 The Secretary. The Secretary shall: (A) keep the
minutes of the meetings of the shareholders and of the Board of
Directors in one or more books provided for that purpose; (b) see
that all notices are duly given in accordance with the provisions of
these by-laws or as required by law; (c) be custodian of the corporate
records and of the seal of the Corporation and see that the seal of
the Corporation is affixed to all documents, the execution of which
on behalf of the Corporation under its seal is duly authorized; (d)
keep or arrange for the keeping of a register of the post office
address of each shareholder which shall be furnished to the Secretary
by such shareholder; (e) sign with the President, or a Vice President,
certificates for shares of the Corporation, the issuance of which
shall have been authorized by resolution of the Board of Directors;
(f) have general charge of the stock transfer books of the
Corporation; and (g) in general, perform all duties incident to the
office of Secretary and have such other duties and exercise such
authority as from time to time may be delegated or assigned to him or
her by the President or by the Board of Directors.
4.10 The Treasurer. The Treasurer shall: (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation; (b) receive and give receipts for moneys due and payable
to the Corporation from any source whatsoever, and deposit all such
moneys in the name of the corporation in such banks, trust companies
or other depositories as shall be selected in accordance with the
provisions of Section 5.04; and (c) in general, perform all of the
duties incident to the office of Treasurer and have such other duties
and exercise such other authority as from time to time may be
delegated or assigned to him or her by the President or by the Board
of Directors. If required by the Board of Directors, the Treasurer
shall give a bond for the faithful discharge of his duties in such sum
and with such surety or sureties as the Board of Directors shall
determine.
4.11 Assistant Secretaries and Assistant Treasurers.
There shall be such number of Assistant Secretaries and Assistant
Treasurers as the Board of Directors may from time to time authorize.
The Assistant Secretaries may sign with the President or a Vice
President certificates for shares of the Corporation, the issuance of
which shall have been authorized by a resolution of the Board of
Directors. The Assistant Secretaries shall, respectively, if required
by the Board of Directors, give bonds for the faithful discharge of
their duties in such sums and with such sureties as the Board of
Directors shall determine. The Assistant Secretaries and Assistant
Treasurers, in general, shall perform such duties and have such
authority as shall from time to time be delegated or assigned to them
by the Secretary or the Treasurer, respectively, or by the President
or the Board of Directors.
4.12 Other Assistants and Acting Officers. The Board of
Directors shall have the power to appoint any person to act as
assistant to any Officer, or as agent for the Corporation in his or
her stead, or to perform the duties of such Officer whenever for any
reason it is impracticable for such Officer to act personally and such
assistant or acting Officer or other agent so appointed by the Board
of Directors shall have the power to perform all the duties of the
office to which he or she is so appointed to be assistant, or as to
which he or she is so appointed to act, except as such power may be
otherwise defined or restricted by the Board of Directors.
4.13 Salaries. The salaries of the principal Officers
shall be fixed from time to time by the Board of Directors or by a
duly authorized committee thereof, and no Officer shall be prevented
from receiving such salary by reason of the fact that he or she is
also a Director of the Corporation.
ARTICLE V. CONTRACTS, LOANS, CHECKS
AND DEPOSITS: SPECIAL CORPORATE ACTS
5.01 Contracts. The Board of Directors may authorize any
Officer or Officers, agent or agents, to enter into any contract or
execute or deliver any instrument in the name of and on behalf of the
Corporation, and such authorization may be general or confined to
specific instances. No contract or other transaction between the
Corporation and one or more of its Directors or any other corporation,
firm, association, or entity in which one or more of its Directors or
Officers are financially interested, shall be either void or voidable
because of such relationship or interest or because such Director or
Directors are present at the meeting of the Board of Directors or a
committee thereof which authorizes, approves or ratifies such contract
or transaction or because his, or her, or their votes are counted for
such purpose, if (a) the fact of such relationship or interest is
disclosed or known to the Board of Directors or committee which
authorizes, approves or ratifies the contract or transaction by a vote
or consent sufficient for the purpose without counting the votes or
consents of such interested Directors; or (b) the fact of such
relationship or interest is disclosed or known to the shareholders
entitled to vote and they authorize, approve or ratify such contract
or transaction by vote or written consent; or (c) the contract or
transaction is fair and reasonable to the Corporation. Common or
interested Directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or a committee thereof
which authorizes, approves or ratifies such contract or transactions.
5.02 Loans. No indebtedness for borrowed money shall be
contracted on behalf of the Corporation and no evidences of such
indebtedness shall be issued in its name unless authorized by or under
the authority of a resolution of the Board of Directors. Such
authorization may be general or confined to specific instances.
5.03 Checks, Drafts, etc. All checks, drafts or other
orders for the payment of money, notes or other evidences of
indebtedness issued in the name of the Corporation, shall be signed
by such Officer or Officers, agent or agents of the Corporation and
in such manner as shall from time to time be determined by or under
the authority of a resolution of the Board of Directors.
5.04 Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the
Corporation in such banks, trust companies or other depositories as
may be selected by or under the authority of a resolution of the Board
of Directors.
5.05 Voting of Securities Owned by this Corporation.
Subject always to the specific directions of the Board of Directors,
(a) any shares or other securities issued by any other corporation and
owned or controlled by this corporation may be voted at any meeting
of security holders of such other corporation by the President of this
Corporation if he or she be present, or in the President's absence by
the Executive Vice President, (if one be designated), or in the
Executive Vice President's absence, by any Vice President of his
Corporation who may be present, and (b) whenever, in the judgment of
the President, or in his absence, of the Executive Vice President (if
one be designated), or in the Executive Vice President's absence, of
any Vice President, it is desirable for this Corporation to execute
a proxy or written consent in respect to any shares or other
securities issued by any other corporation and owned by this
Corporation, such proxy or consent shall be executed in the name of
this Corporation by the President, Executive Vice President or one of
the Vice Presidents of this Corporation in the order as provided in
clause (a) of this Section, without necessity of any authorization by
the Board of Directors, affixation of corporate seal or
countersignature or attestation by another officer. Any person or
persons designated in the manner above stated as the proxy or proxies
of this Corporation shall have full right, power and authority to vote
the shares or other securities issued by such other corporation and
owned by this Corporation the same as such shares or other securities
might be voted by this Corporation.
5.06 Stock Options. Except for appropriate adjustments
made to give effect to any stock splits, stock dividends or other
relevant changes in the capitalization of the Corporation, the
Corporation shall not, without the approval of the holders of a
majority of the shares present and entitled to vote at a meeting of
shareholders, grant any stock options with an exercise price less than
100% of the fair market value (as determined by the Board of Directors
or a committee of the Board of Directors) of a share of common stock
on the date of grant or reduce the exercise price of any stock option
which was granted under any of the Corporation's existing or future
stock option plans; provided, however, that the foregoing shall not
preclude the Corporation from issuing new stock options with a lower
exercise price granted under a stock option plan to persons holding
stock options from such plan with a higher exercise price; provided,
that if such new stock options with a lower exercise price were
granted in replacement or cancellation of, or in exchange for, such
stock options with a higher exercise price, the stock options with a
higher exercise price would be canceled or surrendered and the shares
underlying such stock options would not be available for re-grant
under such stock option plan.
ARTICLE VI. CERTIFICATES FOR
SHARES AND THEIR TRANSFER
6.01 Certificates for Shares. Certificates representing
shares of the Corporation shall be in such form, consistent with law,
as shall be determined by the Board of Directors. Such Certificates
shall be signed by the President or a Vice President and by the
Secretary or an Assistant Secretary. All certificates for shares
shall be consecutively numbered or otherwise identified. The name and
address of the person to whom the shares represented thereby are
issued, with the number of shares and date of issue, shall be entered
on the stock transfer books of the Corporation. All certificates
surrendered to the Corporation for transfer shall be cancelled and no
new certificate shall be issued until the former certificate for a
like number of shares shall have been surrendered and canceled, except
as provided in Section 6.06.
6.02 Facsimile Signatures and Seal. The seal of the
Corporation, if the Corporation has elected to have a seal, on any
certificates for shares may be a facsimile. The signatures of the
President or Vice President and the Secretary or Assistant Secretary
upon a certificate may be facsimiles if the certificate is manually
signed on behalf of a transfer agent, or a registrar, other than the
Corporation itself or an employee of the Corporation.
6.03 Signature by Former Officers. In case any Officer, who
has signed or whose facsimile signature has been placed upon, any
certificate for shares, shall have ceased to be such Officer before
such certificate is issued, it may be issued by the Corporation with
the same effect as if he or she were such Officer at the date of its
issue.
6.04 Transfer of Shares. Prior to due presentment of a
certificate for shares for registration of transfer, the Corporation
may treat the registered owner of such shares as the person
exclusively entitled to vote, to receive notifications and otherwise
to have and exercise all the rights and powers of an owner. Where a
certificate for shares is presented to the Corporation with a request
to register for transfer, the Corporation shall not be liable to the
owner or any other person suffering loss as a result of such
registration of transfer if (a) there were on or with the certificate
the necessary endorsements, and (b) the corporation had no duty to
inquire into adverse claims or has discharged any such duty. The
Corporation may require reasonable assurance that said endorsements
are genuine and effective and in compliance with such other
regulations as may be prescribed by or under the authority of the
Board of Directors.
6.05 Restrictions on Transfer. The face or reverse side of
each certificate representing shares shall bear a conspicuous notation
of any restriction imposed by the Corporation upon the transfer of
such shares.
6.06 Lost, Destroyed or Stolen Certificates. Where the
owner claims that his or her certificate for shares has been lost,
destroyed or wrongfully taken, a new certificate shall be issued in
place thereof if the owner (a) so requests before the Corporation has
notice that such shares have been acquired by a bona fide purchaser,
and (b) files with the Corporation a sufficient indemnity bond, and
(c) satisfies such other reasonable requirements as may be prescribed
by or under the authority of the Board of Directors.
6.07 Consideration for Shares. The shares of the
Corporation may be issued for such consideration as shall be fixed
from time to time by the Board of Directors, provided that any shares
having a par value shall not be issued for a consideration less than
the par value thereof. The consideration to be paid for shares may
be paid in whole or in part, in money, in other property, tangible or
intangible, or in labor or services actually performed for the
Corporation. When payment of the consideration for which shares are
to be issued shall have been received by the Corporation, such shares
shall be deemed to be fully paid and nonassessable by the Corporation.
No certificate shall be issued for any share until such share is fully
paid.
6.08 Stock Regulations. The Board of Directors shall have
the power and authority to make all such further rules and regulations
not inconsistent with the statutes of the State of Wisconsin as it may
deem expedient concerning the issue, transfer and registration of
certificates representing shares of the Corporation.
ARTICLE VII. WAIVER OF NOTICE
Whenever any notice whatever is required to be given under
the provisions of the Wisconsin Business Corporation Law or under the
provisions of the articles of incorporation or by-laws a waiver
thereof in writing signed at any time, whether before or after the
time of the meeting, by the person or persons entitled to such notice
shall be deemed equivalent to the giving of such notice. Such waiver
by a shareholder in respect of any matter for which notice is required
under any provision of the Wisconsin Business Corporation Law shall
contain the same information as would have been required to be
included in such notice under any applicable provisions of said Law,
except that the time and place of meeting need not be stated.
ARTICLE VIII. UNANIMOUS CONSENT
WITHOUT A MEETING
Any action required by the articles of incorporation or by-
laws or any provision of the Wisconsin Business Corporation Law to be
taken at a meeting or any other action which may be taken at a meeting
may be taken without a meeting if a consent in writing setting forth
the action so taken shall be signed by all of the shareholders,
Directors or members of a committee thereof entitled to vote with
respect to the subject matter thereof and such consent shall have the
same force and effect as a unanimous vote.
ARTICLE IX. INDEMNIFICATION
9.01 Indemnification for Successful Defense. Within 20 days
after receipt of a written request pursuant to Section 9.03, 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 a proceeding, for all reasonable expenses incurred
in the 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.
9.02 Other Indemnification. (a) In cases not included under
Section 9.01, the Corporation shall indemnify a Director, Officer,
Employee or Agent against all liabilities and expenses incurred by the
Director, Officer, Employee or Agent 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
liability was incurred because the Director, Officer, Employee or
Agent breached or failed to perform a duty he or she owes to the
Corporation and the breach or failure to perform constitutes any of
the following:
(1) A willful failure to deal fairly with the
Corporation or its shareholders in connection with a matter
in which the Director, Officer, Employee or Agent has a
material conflict of interest.
(2) 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.
(3) A transaction from which the Director, Officer,
Employee or Agent derived an improper personal profit.
(4) Willful misconduct.
(b) Determination of whether indemnification is required
under this Section shall be made pursuant to Section 9.05.
(c) The termination of a proceeding by judgment, order,
settlement or conviction, or upon a plea of no contest or an
equivalent plea, does not, by itself, crate a presumption that
indemnification of the Director, Officer, Employee or Agent is not
required under this Section.
9.03 Written Request. A Director, Officer, Employee or
Agent who seeks indemnification under Sections 9.01 or 9.02 shall make
a written request to the Corporation.
9.04 Nonduplication. The Corporation shall not indemnify
a Director, Officer, Employee or Agent under Sections 9.01 or 9.02 if
the Director, Officer, Employee or Agent has previously received
indemnification or allowance of expenses from any person, including
the Corporation, in connection with the same proceeding. However, the
Director, Officer, Employee or Agent has no affirmative duty to look
to any other person for indemnification from such other person.
9.05 Determination of Right to Indemnification.
(a) Unless otherwise provided by the articles of
incorporation or by written agreement between the Director, Officer,
Employee or Agent, and the Corporation, the Director, Officer,
Employee or Agent seeking indemnification under Section 9.02 shall
select one of the following means for determining his or her right to
indemnification:
(1) By a majority vote of a quorum of the Board of
Directors consisting of Directors not at the time parties
to the same or related proceedings. If a quorum of
disinterested Directors cannot be obtained, by majority
vote of a committee duly appointed by the Board of
Directors and consisting solely of two or more Directors
not at the time parties to the same or related proceedings.
Directors who are parties to the same or related
proceedings may participate in the designation of members
of the committee.
(2) By independent legal counsel selected by a quorum
of the Board of Directors or its committee in the manner
prescribed in sub. (1) or, if unable to obtain such a
quorum or committed, by a majority vote of the full Board
of Directors, including Directors who are parties to the
same or related proceedings.
(3) By a panel of three arbitrators consisting of one
arbitrator selected by those Directors entitled under sub.
(2) to select independent legal counsel, one arbitrator
selected by the Director or Officer seeking indemnification
and one arbitrator selected by the two arbitrators
previously selected.
(4) By an affirmative vote of the majority of shares
represented at a meeting of shareholders at which a quorum
is present. Shares owned by, or voted under the control
of, persons who are at the time parties to the same or
related proceedings, whether as plaintiffs or defendants or
in any other capacity, may not be voted in making the
determination.
(5) By a court under Section 9.08.
(6) By any other method provided for in any
additional right to indemnification permitted under Section
9.07.
(b) In any determination under (a), the burden of proof is
on the Corporation to prove by clear and convincing evidence that
indemnification under Section 9.02 should not be allowed.
(c) A written determination as to a Director, Officer,
Employee or Agent's indemnification under Section 9.02 shall be
submitted to both the Corporation and the Director, Officer, Employee
or Agent within 60 days of the selection made under (a).
(d) If it is determined that indemnification is required
under Section 9.02, the Corporation shall pay all liabilities and
expenses not prohibited by Section 9.04 within 10 days after receipt
of the written determination under (c). The Corporation shall also
pay all expenses incurred by the Director, Officer, Employee or Agent,
in the determination process under (a).
9.06 Advance Expenses. Within 10 days after receipt of a
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:
(1) A written affirmation of his or her good faith
belief that he or she has not breached or failed to perform
his or her duties to the Corporation.
(2) A written undertaking, executed personally or on
his or her behalf, to repay the allowance (together with
reasonable interest thereon) to the extent that it is
ultimately determined under Section 9.05 that
indemnification under Section 9.02 is not required and that
indemnification is not ordered by a court under Section
9.08(b)(2). The undertaking under this subsection shall be
an unlimited general obligation of the Director, Officer,
Employee or Agent, and may be accepted without reference to
his or her ability to repay the allowance. The undertaking
may be secured or unsecured.
9.07 Nonexclusivity. (a) Except as provided in (b),
Sections 9.01, 9.02 and 9.06 do not preclude any additional right to
indemnification or allowance of expenses that a Director, Officer,
Employee or Agent may have under any of the following:
(1) The articles of incorporation.
(2) A written agreement between the Director,
Officer, Employee or Agent, and the Corporation.
(3) A resolution of the Board of Directors.
(4) A resolution, after notice, adopted by a majority
vote of all of the Corporation's voting shares then issued
and outstanding.
(b) Regardless of the existence of an additional right
under (a), the Corporation shall not indemnify a Director, Officer,
Employee or Agent, or permit a Director, Officer, Employee or Agent
to retain any allowance of expenses, unless it is determined by or on
behalf of the Corporation that the Director, Officer, Employee or
Agent did not breach or fail to perform a duty he or she owes to the
Corporation which constitutes conduct under Section 9.02(a)(1), (2),
(3) or (4). A Director, Officer, Employee or Agent who is a party to
the same or related proceeding for which indemnification or an
allowance of expenses is sought may not participate in a determination
under this subsection.
(c) Sections 9.01 to 9.12 do not affect the Corporation's
power to pay or reimburse expenses incurred by a Director, Officer,
Employee or Agent in any of the following circumstances.
(1) As a witness in a proceeding to which he or she
is not a party.
(2) As a plaintiff or petitioner in a proceeding
because he or she is or was a Director, Officer, Employee
or Agent of the Corporation.
9.08 Court-Ordered Indemnification. (a) Except as provided
otherwise by written agreement between the Director, Officer, Employee
or Agent, and the Corporation, a Director, Officer, Employee or Agent
who is a party to a proceeding may apply for indemnification to the
court conducting the proceeding or to another court of competent
jurisdiction. Application may be made for an initial determination
by the court under Section 9.05(a)(5) or for review by the court of
an adverse determination under Section 9.05(a)(1), (2), (3), (4) or
(6). After receipt of an application, the court shall give any notice
it considers necessary.
(b) The court shall order indemnification if it determines
any of the following:
(1) That the Director, Officer, Employee or Agent is
entitled to indemnification under Section 9.01 or 9.02.
(2) That the Director, Officer, Employee or Agent is
fairly and reasonably entitled to indemnification in view
of all the relevant circumstances, regardless of whether
indemnification is required under Section 9.02.
(c) If the court determines under (b) that the Director,
Officer, Employee or Agent is entitled to indemnification, the
Corporation shall pay the Director, Officer, Employee or Agent's
expenses incurred to obtain the court-ordered indemnification.
9.09 Insurance. The Corporation may purchase and maintain
insurance on behalf of an individual who is a Director, Officer,
Employee or Agent of the Corporation against liability asserted
against or incurred by the individual in his or her capacity as a
Director, Officer, Employee or Agent, regardless of whether the
Corporation is required or authorized to indemnify or allow expenses
to the individual against the same liability under Section 9.01, 9.02,
or 9.06.
9.10 Securities Law Claims. (a) Pursuant to the public
policy of the State of Wisconsin, the Corporation shall provide
indemnification, allowance of expenses and insurance for any liability
incurred in connection with a proceeding involving securities
regulation described under (b) to the extent required or permitted
under Sections 9.01 to 9.09.
(b) Sections 9.01 to 9.09 apply, to the extent applicable
to any other proceeding, to any proceeding involving a federal or
state statute, rule or regulation regulating the offer, sale or
purchase of securities, securities brokers or dealers, or investment
companies or investment advisers.
9.11 Liberal Construction. In order for the corporation to
obtain and retain qualified Directors, Officers, Employees and Agents,
the foregoing provisions shall be liberally administered in order to
afford maximum indemnification of Directors, Officers, Employees or
Agents and, accordingly, the indemnification above provided for shall
be granted in all cases unless to do so would clearly contravene
applicable law, controlling precedent or public policy.
9.12 Definitions Applicable to This Article.
(a) "Affiliate" shall include, without limitation, any
corporation, partnership, joint venture, employee benefit plan, trust
or other enterprise that directly or indirectly through one or more
intermediaries, controls or is controlled by, or is under common
control with, the Corporation.
(b) "Corporation" means this Corporation and any domestic
or foreign predecessor of this Corporation where the predecessor
corporation's existence ceased upon the consummation of a merger or
other transaction.
(c) "Director, Officer, Employee or Agent" means any of the
following:
(1) A natural person who is or was a director,
officer, employee or agent (including attorneys) of this
Corporation; provided, however, that no attorney of the
Corporation shall be considered an agent with respect to
those actions taken by such attorney solely in his capacity
as an independent contractor to the Corporation.
(2) A natural person who, while a director, officer,
employee or agent, of this Corporation, is or was serving
at the Corporation's request as a director, officer,
employee, agent, partner, trustee, member of any governing
or decision making committee, of another Corporation or
foreign corporation, partnership, joint venture, trust or
other enterprise.
(3) A natural person who, while a director, officer,
employee or agent of this Corporation, is or was serving an
employee benefit plan because his or her duties to the
Corporation also impose duties on, or otherwise involve
services by, the person to the plan or to participants or
beneficiaries of the plan.
(4) Unless the context requires otherwise, the estate
or personal representative of a Director, Officer, Employee
or Agent.
For purposes of this Article, it shall be conclusively presumed that
any Director, Officer, Employee or Agent serving as a director,
officer employee, agent, partner, trustee, member of any governing or
decision making committee of an Affiliate shall be so serving at the
request of the Corporation.
(d) "Expenses" include fees, costs, charges, disbursements,
attorney fees and other expenses incurred in connection with a
proceeding.
(e) "Liability" includes the obligation to pay a judgment,
settlement, penalty, assessment, forfeiture or fine, including an
excise tax assessed with respect to an employee benefit plan, and
reasonable expenses.
(f) "Party" includes a natural person who was or is, or who
is threatened to be made, a named defendant or respondent in a
proceeding.
(g) "Proceeding" means any threatened, pending or completed
civil, criminal, administrative or investigative action, suit,
arbitration or other proceeding, whether formal or informal, which
involves foreign, federal, state or local law and which is brought by
or in the right of the Corporation or by any other person.
ARTICLE X. SEAL
There shall be no corporate seal.
ARTICLE XI. AMENDMENTS
11.01 By Shareholders. These by-laws may be altered,
amended or repealed and new by-laws may be adopted by the shareholders
by affirmative vote of not less than a majority of the shares preset
or represented at an annual or special meeting of the shareholders at
which a quorum is in attendance.
11.02 By Directors. These by-laws may be also be altered,
amended or repealed and new by-laws may be adopted by the Board of
Directors by affirmative vote of a majority of the number of directors
present at any meeting at which a quorum is in attendance; provided,
however, that no by-law adopted by the shareholders or subscribers
shall be amended or repealed by the Board of Directors if the by-law
so adopted so provides; and, provided further, that Section 5.06
hereof shall not be altered, amended or repealed by the Board of
Directors.
11.03 Implied Amendments. Any action taken or authorized
by the shareholders or by the Board of Directors, which would be
inconsistent with the by-laws then in effect but is taken or
authorized by affirmative vote of not less than the number of shares
or the number of Directors required to amend the by-laws so that the
by-laws would be consistent with such action, shall be given the same
effect as though the by-laws had been temporarily amended or suspended
so far, but only so far, as is necessary to permit the specific action
so taken or authorized.