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EXHIBIT 3.58
AMENDED AND RESTATED BYLAWS
OF
AMERIPATH, WISCONSIN, INC.
(A WISCONSIN CORPORATION)
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AMENDED AND RESTATED BYLAWS
OF
AMERIPATH, WISCONSIN, INC.
(A WISCONSIN CORPORATION)
Introduction - Variable References
0.01. Date of annual shareholders' meeting (See Section 2.01):
The first Saturday in May at 9:00 A.M.
0.02. Required notice of shareholders' meeting (See Section 2.04): not less
than 7 days.
0.03. Authorized number of Directors (See Section 3.01): 3
0.04. Required notice of Directors' meeting (See Section 3.05): not less
than 3 days.
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TABLE OF CONTENTS
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ARTICLE I. OFFICES
1.01 Principal and Business Offices........................................................ 1
1.02 Registered Office..................................................................... 1
ARTICLE II. SHAREHOLDERS
2.01 Annual Meeting........................................................................ 1
2.02 Special Meeting....................................................................... 1
2.03 Place of Meeting...................................................................... 1
2.04 Notice of Meeting..................................................................... 2
2.05 Fixing of Record Date................................................................. 2
2.06 Voting Record......................................................................... 3
2.07 Quorum and Voting Requirements Postponements, Adjournments............................ 3
2.08 Conduct of Meeting.................................................................... 4
2.09 Proxies............................................................................... 4
2.10 Voting of Shares...................................................................... 5
2.11 Voting of Shares by Certain Holders................................................... 6
2.12 Waiver of Notice by Shareholders...................................................... 6
2.13 Unanimous Consent Without Meeting..................................................... 7
ARTICLE III. BOARD OF DIRECTORS
3.01 General Powers and Number............................................................. 7
3.02 Tenure and Qualifications............................................................. 7
3.03 Regular Meetings...................................................................... 7
3.04 Special Meetings...................................................................... 8
3.05 Notice; Waiver........................................................................ 8
3.06 Quorum................................................................................ 9
3.07 Manner of Acting...................................................................... 9
3.08 Conduct of Meetings................................................................... 9
3.09 Vacancies............................................................................. 9
3.10 Compensation.......................................................................... 9
3.11 Presumption of Assent................................................................. 10
3.12 Committees............................................................................ 10
3.13 Unanimous Consent Without Meeting..................................................... 10
3.14 Meetings by Telephone or by Other Communication Technology............................ 11
ARTICLE IV. OFFICERS
4.01 Number................................................................................ 11
4.02 Election and Term of Office........................................................... 11
4.03 Removal............................................................................... 11
4.04 Vacancies............................................................................. 11
4.05 Chairman of the Board................................................................. 11
4.06 President............................................................................. 12
4.07 the Executive Vice President.......................................................... 12
4.08 the Vice President.................................................................... 12
4.09 the Secretary......................................................................... 12
4.10 the Treasurer......................................................................... 13
4.11 Assistant Secretaries and Assistant Treasurers........................................ 13
4.12 Other Assistants and Acting Officers.................................................. 13
4.13 Salaries.............................................................................. 13
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ARTICLE V. CONFLICT OF INTEREST TRANSACTIONS,
CONTRACTS, LOANS, CHECKS AND DEPOSITS:
SPECIAL CORPORATE ACTS
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5.01 Conflict of Interest Transactions..................................................... 14
5.02 Contract.............................................................................. 14
5.03 Loans................................................................................. 14
5.04 Checks, Drafts, Etc................................................................... 14
5.05 Deposits.............................................................................. 14
5.06 Voting of Securities Owned by This Corporation........................................ 14
ARTICLE VI. CERTIFICATES FOR
SHARES AND THEIR TRANSFERS
6.01 Certificates for Shares............................................................... 15
6.02 Facsimile Signatures.................................................................. 15
6.03 Signature by Former Officers.......................................................... 15
6.04 Transfer of Shares.................................................................... 15
6.05 Restrictions On Transfer.............................................................. 16
6.06 Lost, Destroyed, or Stolen Certificates............................................... 16
6.07 Consideration for Shares.............................................................. 16
6.08 Stock Regulations..................................................................... 16
ARTICLE VII. INDEMNIFICATION
7.01 Indemnification for Successful Defense................................................ 17
7.02 Other Indemnification................................................................. 17
7.03 Allowance of Expenses................................................................. 17
ARTICLE VIII. SEAL
ARTICLE IX. AMENDMENTS
9.01 By Shareholders....................................................................... 18
9.02 By Directors.......................................................................... 18
9.03 Implied Amendments.................................................................... 18
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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
registered office.
ARTICLE II. SHAREHOLDERS
2.01 ANNUAL MEETING. The annual meeting of the shareholders shall be
held at the date and hour in each year set forth in Section 0.01, or at such
other time and date within 30 days before or after said date as may be fixed by
or under the authority of the Board of Directors, for the purpose of electing
Directors and for the transaction of such other business as may come before the
meeting. If the day fixed for the annual meeting shall be a legal holiday in the
Stare of Wisconsin, such meeting shall be held on the next succeeding business
day. If the election of Directors shall not be held on the day designated
herein, or fixed as herein provided, for any annual meeting of the shareholders,
or at any adjournment thereof the Board of Directors shall cause the election to
be held at a special meeting of the shareholders as soon thereafter as
conveniently may be.
2.02 SPECIAL MEETING. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by the Wisconsin Business
Corporation Law, may be called by the Chairman of the Board of Directors, the
President, the Board of Directors, or the holders of at least ten percent of all
the votes entitled to be cast on any issue proposed to be considered at the
proposed special meeting who sign, date and deliver to the Corporation one or
more written demands for the meeting describing one or more purposes for which
it is to be held. The record date for determining shareholders entitled to
demand a special meeting shall be the date that the first shareholder signs the
demand. if duly called, the Corporation shall communicate notice of a special
meeting as set forth in Section 3.04.
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. If no designation is made, 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.
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2.04 NOTICE OF 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, and, if these forms of personal
notice 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. Such notice stating the place, day and hour
of the meeting and, in case of a special meeting, a description of each purpose
for which the meeting is called, shall be communicated or sent not less than the
number of days set forth in section 0.02 (unless a longer period is required by
the Wisconsin Business Corporation, Law or the Articles of Incorporation) nor
more than 60 days before the date of the meeting, by or at the direction of the
Chairman of the Board, the Secretary, or other Officer or persons calling the
meeting, to each shareholder of record entitled to vote at such meeting. Written
notice is effective at the earliest of the following:
(i) when received;
(ii) on deposit in the U.S. mail, if mailed postpaid and correctly
addressed; or
(iii) 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.
Written notice to a shareholder shall be deemed correctly Addressed if it is
addressed to the shareholder's address shown in the Corporation's current record
of shareholders. Oral notice is effective when communicated and the Corporation
shall maintain a record setting forth the date, time, manner and recipient of
the notice.
2.05 FIXING OF RECORD DATE. A "shareholder" of the Corporation shall
mean the person in whose name shares are registered in the stock, transfer books
of the Corporation or the beneficial owner of shares to the extent of the rights
granted by a nominee certificate on file with the Corporation. Such nominee
certificates, if any, shall be reflected in the stock transfer books of the
Corporation. For the purpose of determining shareholders entitled to notice of
or to vote at any meeting of shareholders or any adjournment thereof, the Board
of Directors shall fix a future date not less than ten days and not more than 70
days prior to the date of any meeting of shareholders for the determination of
the shareholders entitled to notice of, or to vote at, such meeting. If no
record date is fixed for the determination of shareholders entitled to notice of
or to vote at a meeting of shareholders, the close of business on the day before
the notice of the meeting is mailed shall be the record date for such
determination of shareholders. The Board of Directors also may fix a future date
as the record date for the purpose of determining shareholders entitled to take
any other action or determining shareholders for any other purpose, which 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. 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
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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. The record date for determining
shareholders entitled to a distribution or a share dividend shall be the date on
which the Board of Directors authorizes the distribution or share dividend, as
the case may be, unless the Board of Directors fixes a different record date.
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. The Corporation shall make the shareholders' list available
for inspection by any shareholder beginning two business days after the notice
of meeting is given for which the list was prepared and continuing to the date
of the meeting, at the Corporation's principal office. Such record also 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. A shareholder or his or her agent or attorney may,
on written demand, inspect and copy the list subject to the requirements set
forth in Sections 180.1602 and 180.0720 of the Wisconsin Business Corporation
Law. 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; POSTPONEMENTS; ADJOURNMENTS.
Shares entitled to vote as a separate voting group as defined in the Wisconsin
Business Corporation Law 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 or the Wisconsin Business Corporation Law provides 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.
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 data is or must be set for that adjourned meeting.
If a quorum exists, action on a matter, other than the election of
directors, 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 or the Wisconsin Business Corporation Law requires a
greater number of affirmative votes. Unless otherwise provided in the Articles
of Incorporation of the Corporation, 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. "Plurality" means that the
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individuals with the largest number of votes are elected as directors up to the
maximum number of directors to be chosen at the election.
"Voting group" means any of the following:
(i) All shares of one or more classes or series that under the
Articles of incorporation or the Wisconsin Business Corporation Law are
entitled to vote and be counted together collectively on a matter at a
meeting of shareholders.
(ii) All shares that under the Articles of Incorporation or the
Wisconsin Business Corporation Law are entitled to vote generally on a
matter.
The Board of Directors acting by resolution may postpone reschedule
any previously scheduled meeting, provided, however that a special meeting
called by at least 10% of the shareholders may not be postponed beyond the 30th
day following the originally scheduled meeting. Any meeting may be adjourned
from time to time, whether or not there is a quorum:
(i) at any time, upon a resolution of shareholders if the votes
cast in favor or such resolution by the holders of shares of
each voting group entitled to vote on any matter theretofore
properly brought before the meeting exceed the number of
votes cast against such resolution by the holders of shares
of each such voting group; or
(ii) at any time prior to the transaction of any business at a
meeting which was not called by at least 10% of the
shareholders, by the Chairman of the Board or pursuant to a
resolution of the Board of Directors.
No notice of the time and place of adjourned meetings need be given except as
required, by the Wisconsin Business Corporation Law. At any 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 noticed.
2.08 CONDUCT OF MEETINGS. The Chairman of the Board, or in the
Chairman's absence, the President, or in the President's absence, the Executive
Vice President (if one is 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. A shareholder may
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appoint a proxy to vote or otherwise act for the shareholder by signing an
appointment form, either personally or by his or her attorney-in-fact. Such
proxy appointment is effective when received by the Secretary of the Corporation
before or at the time of the meeting. Unless otherwise provided in the
appointment form of proxy, a proxy appointment 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 appointment shall not of itself constitute a revocation.
no proxy appointment shall be valid after eleven months from the date of its
execution, unless otherwise provided in the appointment form of proxy. In
addition to the presumptions set forth in Section 2.11 below, the Board of
Directors shall have the power and authority tO make rules establishing
presumptions as to the validity and sufficiency of proxy appointments.
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 voting group or groups
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. An
appointment form of 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 either in person or
by proxy, without a transfer of such shares into his or her name, provided
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. An appointment form of 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;
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provided, however, a pledgee shall be entitled to vote shares held of
record by the pledgor if the Corporation receives acceptable evidence of
the pledgee's authority to sign.
(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. Shares held by a minor may be voted by a personal representative,
administrator, executor, guardian or conservator representing the minor if
evidence of such fiduciary status is presented and acceptable to the
Corporation.
(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. Shares held by an incompetent or spendthrift may
be voted by a personal representative, administrator, executor, guardian or
conservator representing the minor if evidence of such fiduciary status is
presented and acceptable to the Corporation.
(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 appointment form of 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
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be deemed equivalent to the giving of such notice and the Corporation shall
include copies of such waivers in its corporate records; 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. A shareholder's attendance at a meeting, in person or by
proxy, waives objection to the following:
(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 holding 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.
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. 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, the Board of Directors, subject to
any limitation set forth in the Articles of incorporation. The number of
Directors of the Corporation shall be as provided in Section 0.03. The number of
Directors may be increased or decreased from time to time by amendment to this
section adopted by the shareholders or the Board of Directors but no decrease
shall have the effect of shortening the term of an incumbent director.
3.02 TENURE AND QUALIFICATIONS. Each Director shall hold office until
the next annual meeting of shareholders and until his or her successor shall
have been elected, or until his or her prior death, resignation or removal. A
Director may be removed from office by the shareholders if, at a meeting of
shareholders called for that purpose, the number of votes cast to remove the
Director exceeds the number of votes cast not to remove him or her; provided,
however, if a Director is elected by a voting group of shareholders, only the
shareholders of that voting group may participate in the vote to remove that
Director. A Director may resign at any time by filing his or her 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
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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 Director 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 Chairman, Secretary or any two Directors.
The Chairman, Secretary or Directors 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 Directorys 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 may be communicated in person, by
telephone, telegraph, teletype, facsimile or other form of wire or wireless
communication, or by mail or private carrier, and, if these forms of personal
notice 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. Notice of each meeting of the Board of
Directors (unless otherwise provided in or pursuant to Section 3.03) shall be
communicated to each Director at his or her business address or telephone number
or at such other address or telephone number as such Director shall have
designated is writing filed with the Secretary, in each case not less than that
number of hours prior thereto as set forth, in Section 0.04. Written notice is
effective at the earliest of the following:
(i) when received;
(ii) on deposit in the U.S. Mail, if mailed postpaid and correctly
addressed, or
(iii) On the date shown on the return receipt, if sent by registered
or certified mail, return receipt and the receipt is signed by or
on behalf of the addressee.
Oral notice is effective when communicated and the Corporation shall maintain a
record setting forth the date, time, manner and recipient of the notice.
Whenever any notice whatsoever 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 or 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, and the Corporation
shall retain copies of such waivers in its corporate records. A Director's
attendance at or participation in a meeting waives any required notice to him or
her of the meeting unless the Director at the beginning of the meeting or
promptly upon his or her
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arrival objects to holding the meeting or transacting business at the meeting
and does not thereafter vote for or assert to action taken at the meeting.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the Board of Directors need be specified in the notice or
waiver of notice of such meeting.
3.06 QUORUM. Except as otherwise provided by the Wisconsin Business
Corporation Law or by the Articles of Incorporation or the 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 or participating (though lees than such
quorum) may adjourn the meeting from time to time without further notice.
3.07 MANNER OF ACTING. If a quorum is present or participating when a
vote is taken, the affirmative vote of a majority of Directors present or
participating is the act of the Board of Directors or a committee of the Board
of Directors, unless the Wisconsin Business Corporation Law or the Articles of
Incorporation or the By-laws require the vote of a greater number of Directors.
3.08 CONDUCT OF MEETINGS. The Chairman of the Board, 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 Director choosen 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 or by the shareholders; 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.
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.
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3.11 PRESUMPTION OF ASSENT. A Director of the Corporation who is
present at or participate in a meeting of the Board of Directors or a committee
thereof of which he of 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 that a committee may not do any of the following: (i) authorize
distributions; (ii) approve or propose to shareholders action that the Wisconsin
Business Corporation Law requires be approved by shareholders; (iii) fill
vacancies on the Board of Directors or on any of its committees, unless the
Board of Directors provides by resolution that any vacancies on a committee
shall be filled by the affirmative vote of a majority of the remaining committee
members; (iv) amend the Articles of Incorporation under section 180.1002 of the
Wisconsin Business Corporation Law; (v) adopt, amend or repeal the By-laws; (vi)
approve a plan of merger not requiring shareholder approval; (vii) authorize or
approve reacquisition of shares, except according to a formula or method
prescribed by the board of Directors; or (viii) 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 to do so within limits prescribed by the
Board of Directors. The Board of Directors may elect one or more of its members
as alternate members of any such committee who may take the place of any absent
member or members at any meeting of such committee, upon request by the
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 the 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.
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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 Section 180.0820 of the
Wisconsin Business Corporation Law (or any successor statutory provision).
ARTICLE IV OFFICERS
4.01 NUMBER. The principal officers of the Corporation shall be a
Chairman, a President, the number of Vice Presidents as may be determined by the
Board of Directors, a secretary, and a Treasurer, each of whom the Board of
Directors shall from time to time determine. Such other Officers and assistant
officers as may be deemed necessary may be elected or appointed by the Board of
Directors. The Board of Directors may authorize a duly appointed Officer to
appoint one or more officers or Assistant Officers. The same natural person may
simultaneously hold more than one office in the Corporation.
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 Chairman 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, preside at all meetings of the
shareholders and of the Board of Directors. The Chairman 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
Chairman. The Chairman 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, the Chairman may
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authorize the President or 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, the Chairman 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.O6 PRESIDENT. The President shall be the chief operating officer of
the Corporation and, subject to the control of the Chairman, shall supervise and
control the operations of the Corporation. He or she shall, 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 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
operating officer and such other duties as may be prescribed by the Board of
Directors or Chairman from time to time.
4.07 THE EXECUTIVE VICE PRESIDENT. The Executive Vice president, if
one be designated, shall assist the or 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 the Chairman or the President.
4.08 THE VICE PRESIDENTS. In the absence of the Chairman, 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 Chairman, 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 Chairman or the
President.
4.09 THE SECRETARY. The Secretary shall: (i) keep the minutes of the
meetings of the shareholders and of the Board of
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Directors in one or more books provided for that purpose; (ii) see that all
notice are duly given in accordance with the provisions of the By-laws or as
required by law; (iii) be custodian of the corporate records; (iv) keep or
arrange for the keeping of a register of the postoffice address of each
shareholder which shall be furnished to the Secretary by such shareholder; (v)
have general charge of the stock transfer books of the Corporation; and (vi) 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: (i) have charge and custody
of and be responsible for all funds and securities of the Corporation; (ii)
receive and give receipts for monies due and payable to the Corporation from any
source whatsoever, and deposit all such monies in the name of the Corporation in
such banks, trust companies or other depositories as shall be selected in
accordance with the provisions of Section 5.05 there hereof; 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 to him or her by the chairman, 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 shell be
such number of Assistant Secretaries and Assistant Treasurers as the Board of
Directors may from time to time authorize. The Assistant Treasurers shall, if
required by the Board of Directors, give bonds for the faithful discharge of
their duties in such sums and with such sureties as the Board of Directors shall
determine. The Assistant secretaries and Assistant Treasurers in general, shall
perform such duties and have such authority as shall from time co 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 her is so appointed to be assistant, or as to which he or
her 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.
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ARTICLE V. CONFLICT OF INTEREST TRANSACTIONS,
CONTRACTS LOANS, CHECKS AND DEPOSITS:
SPECIAL CORPORATE ACTS
5.01 CONFLICT OF INTEREST TRANSACTIONS. A "conflict Of interest
"transaction" means a transaction with the Corporation in which a Director of
the Corporation has a direct or indirect interest. The circumstances in which a
Director of the Corporation has an indirect interest in a transaction Include
but are not limited to a transaction under any of this following circumstances:
(i) another entity in which the Director has a material financial internet or in
which the Director is a, general partner is a party to the transaction, or (ii)
another entity of which the Director is a, director, officer or trustee is a
party to the transaction and the transaction is or, because of its significance
to the corporation should be, considered by the Board of Directors of the
Corporation. A conflict of interest transaction is not voidable by the
Corporation solely because of the Director's interest in the transaction if any
of the circumstances set forth in section 180.0831 of the Wisconsin Business
Corporation Law (or any successor statutory provision) are true or occur.
5.02 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 instances.
5.03 LOANS. Indebtedness for borrowed money shall be no 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.
5.04 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 a
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.
5.05 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 Director.
5.06 VOTING OF SECURITIES OWNED BY THIS CORPORATION. Subject always to
the specific directions of the Board of Directors, (i) any shares or other
securities issued by any other corporation and owned or controlled by this
Corporation may be voted at any meeting or security holders of such other
corporation by the Chairman of this Corporation if he or she be present, or in
the chairman's absence, by the President, 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 this Corporation who may be
present, and (ii) whenever, in
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the judgment of the chairman, or in the Chairmen's absence, of the President,
or in the President's absence, of the Executive Vice President, or, in the
Executive Vice President's absence, of any Vice President, it is desirable for
this corporation to execute an appointment of proxy or written consent in
respect to any shares or other securities issued by any other corporation and
owned by this corporation such proxy appointment or consent shall be executed in
the name of this corporation, by the Chairman, the President, the Executive Vice
President, or one of the Vice Presidents of Corporation in the order as provided
in clause (i) of this Section, without necessity of any authorization by the
Board of Directors or counter signature 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.
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 Chairman or
by another Officer designated by the Chairman or the Board of Directors. 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 cancelled, except as provided in Section. 6.06 hereof.
6.02 FACSIMILE SIGNATURES. The signature of the Chairman or other
authorized Officer 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
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person suffering loss as a result of such registration of transfer if (i) there
were on or with the certificate the necessary endorsements and (ii) 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 (i) so
requests before the corporation has notice that such shares have been acquired
by a bona fide purchaser, and (ii) files with the Corporation a sufficient
indemnity bond, and (iii) 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
received for shares may consist of any tangible or intangible property or
benefit to the corporation, including cash, promissory notes, service performed,
contracts for services to be performed or other services of the corporation.
When the Corporation receives the consideration for which the Board of Directors
authorized the issuance of shares, the shares issued for that consideration are
fully paid and nonassessable, except as provided by Section 180.O622 of the
Wisconsin Business Corporation Law (or any successor statutory provision) which
may require further assessment for unpaid wages to employees under certain
circumstances. The Corporation may place in escrow shares issued for a contract
for future services or benefits or a promissory note, or make other arrangements
to restrict the transfer of the shares, and may credit distributions in respect
of the shares against their purchase price, until the services are performed,
the benefits are received or the note 13 paid. If the services are not
performed, the benefits are not received or the note is not paid, the
Corporation may cancel, in whale or in part, the shares escrowed or restricted
and the distributions credited.
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.
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ARTICLE VII. INDEMNIFICATION
7.01 INDEMNIFICATION FOR SUCCESSFUL DEFENSE. As required by the
Wisconsin Business Corporation Law, the Corporation shall indemnify a Director,
Officer or Employee 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 or Employee was a party because he or
she is a Director, Officer or Employee of the Corporation.
7.02 OTHER INDEMNIFICATION. In cases not included under section 7.01
hereof, and as provided by Section 180.0851(2) of the Wisconsin Business
Corporation Law (or any successor statutory provision), the Corporation shall
indemnify a Director or Officer against liability incurred by the Director or
officer in a proceeding to which the Director or Officer was, a party because he
or she is a Director or officer of the Corporation, unless liability was
incurred because the Director or Officer breached or failed to perform a duty
that he or she owes to the corporation and the breach or failure to perform
constitutes any of the following:
(i) A wilful failure to deal fairly with the Corporation or its
shareholders in connection with a matter in which the Director or
Officer has a material, conflict or interest;
(ii) A violation of the criminal law, unless the Director or
Officer has reasonable cause to believe that his or her conduct was
lawful or no reasonable cause to believe that his or her conduct was
unlawful;
(iii) A transaction from which the Director or Officer derived an
improper personal profit; or
(iv) Wilful misconduct.
7.03 ALLOWANCE OF EXPENSES. Within ten days after receipt of a written
request by a Director or Officer who is a party to a proceeding, the Corporation
shall pay or reimburse his or her reasonable expenses as incurred if the
Director or Officer provides the Corporation with all of the following:
(i) 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; and
(ii) 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 sections
7.01 and 7.02 hereof and pursuant: to Section 180.0855 of the
Wisconsin Business Cooperation Law (or any successor statutory
provision) that indemnification is not required, will not be provided,
or is not so ordered by a court Under Section 180.0854 of the
Wisconsin Business Corporation Law (or any successor statutory
provision). The undertaking under this subsection shall be an
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unlimited general obligation of the Director or Officer, and may be
accepted without: reference to his or her ability to repay the
allowance. The undertaking may be secured or unsecured as determined
by the Board of Directors.
ARTICLE VIII. SEAL
There shall be no corporate seal.
ARTICLE IX. AMENDMENTS
9.01 BY SHAREHOLDERS. The By-laws may be altered, amended or repealed
and new By-laws may be adopted by the shareholders by the affirmative vote
specified in Section 2.07 of these Bylaws.
9.02 BY DIRECTORS. The Bylaws may also be altered, amended or repealed
and new Bylaws nay 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.; but no By-law adopted by the shareholders shall be amended or
repealed by the Board of Directors if the By-law so adopted so provides.
9.03 IMPLIED AMENDMENTS. Any Action taken or authorized by
shareholders or by the Board of Directors, which would be inconsistent with the
By-laws then in effect but is taken or authorized by affirmative vote of not
less than the number of shares or the number of Directors required to amend the
By-laws, so that the By-laws would be consistent with such action, shall be
given the same effect as though the By-laws had been temporarily amended or
suspended so far, but only so far, as is necessary to permit the specific action
so taken or authorized.
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