UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 30, 2015
CELLULAR DYNAMICS INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
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| Wisconsin |
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001-36021 |
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26-1737267 |
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of incorporation) |
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(Commission
File Number) |
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(IRS Employer
Identification No.) |
525 Science Drive
Madison, Wisconsin 53711
(Address of principal executive offices, including zip code)
(608) 310-5100
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Introductory Note
As previously disclosed, on March 30, 2015, Cellular Dynamics International, Inc., a Wisconsin corporation (the “Company”),
entered into an Agreement and Plan of Merger (the “Merger Agreement”) with FUJIFILM Holdings Corporation, a corporation organized under the laws of Japan (“Parent”), and Badger Acquisition Corporation,
a Wisconsin corporation and a wholly owned indirect subsidiary of Parent (“Purchaser”), pursuant to which Purchaser will merge with and into the Company (the “Merger”) with the Company continuing as
the surviving corporation (the “Surviving Corporation”).
Pursuant to the Merger Agreement, and upon the terms and subject to the
conditions thereof, Purchaser commenced a tender offer to acquire all of the issued and outstanding shares of the Company’s common stock, par value $0.0001 per share (each, a “Share”), at a price of $16.50 per Share, net
to the seller thereof in cash, without interest (the “Offer Price”), upon the terms and subject to the conditions and limitations set forth in the Offer to Purchase, dated April 3, 2015 (the “Offer to
Purchase”), and in the related Letter of Transmittal (the “Letter of Transmittal” which, together with the Offer to Purchase, as each may be amended and supplemented from time to time in accordance with the
Merger Agreement, collectively constitute the “Offer”).
The Offer and withdrawal rights expired at 11:59 PM, New York City time,
on April 30, 2015. American Stock Transfer & Trust Company, LLC, the depositary for the Offer (the “Depositary”), has advised Parent and Purchaser that, as of the expiration of the Offer, a total of 14,315,190
Shares had been validly tendered and not validly withdrawn pursuant to the Offer (excluding Shares subject to guaranteed delivery procedures that were not validly tendered prior to the expiration date of the Offer) as of the expiration date,
representing approximately 90.3235% of the Shares outstanding as of such time. The number of Shares validly tendered and not validly withdrawn pursuant to the Offer, when added to the Shares directly or indirectly owned by Parent and its
wholly-owned subsidiaries, constitutes at least the greatest of (i) 54% of the number of Shares issued and outstanding as of the close of business on March 27, 2015, (ii) the number of Shares which, together with the number of Shares
issuable immediately after the exercise of the Top-Up Option (as defined in the Merger Agreement) and the issuance of Top-Up Option Shares (as defined in the Merger Agreement) and not before, would result in Parent, Purchaser and their respective
subsidiaries collectively owning the minimum number of Shares necessary for Purchaser to be merged into the Company pursuant to Section 180.1104 of the Wisconsin Business Corporation Law (the “WBCL”) (assuming the
issuance of the Top-Up Option Shares) and (iii) a majority of the Shares then issued and outstanding, and therefore, satisfies the Minimum Tender Condition (as defined in the Merger Agreement). As of the date of this report, all conditions to
the Offer have been satisfied, and Purchaser has accepted for payment and is promptly paying the Offer Price for all Shares validly tendered and not validly withdrawn prior to the expiration date of the Offer. Payment for such Shares has been made
to the Depositary, which will act as agent to receive payments for Shares tendered by Company shareholders and transmit such payments to tendering Company shareholders whose Shares have been accepted for payment, in accordance with the terms of the
Offer.
Following consummation of the Offer, all conditions to the Merger set forth in the Merger Agreement were
satisfied, and, on May 1, 2015, Parent completed its acquisition of the Company by consummating the Merger without a meeting of shareholders of the Company in accordance with Section 180.1104 of the WBCL. Pursuant to the Merger Agreement,
at the effective time of the Merger (the “Effective Time”), each Share issued and outstanding immediately prior to the Effective Time (other than Shares owned by the Company, Parent, Purchaser and any of their respective
subsidiaries, which Shares have been canceled and extinguished) was converted automatically into the right to receive the Offer Price. As a result, upon the Effective Time, the Company became a wholly owned indirect subsidiary of Parent.
In addition, effective as of immediately prior to the Effective Time, the vesting of each outstanding Company stock option (each, a “Company
Option”) was accelerated in full and was automatically canceled and terminated as of the Effective Time. The holder each Company Stock Option became entitled to receive an amount in cash equal to the product of (i) the total number
of Shares subject to such cancelled Company Option as of immediately prior to the Effective Time and (ii) the excess, if any, of (A) the Offer Price over (B) the exercise price per Share subject to such cancelled Company Option,
without interest (such amounts payable, the “Option Payments”); provided, however, that such Option Payments were reduced by the amount of any required tax withholdings, if applicable, pursuant to the Merger Agreement.
All outstanding warrants to purchase Shares expired upon the Effective Time. Pursuant to the terms of the warrants issued by the Company, holders of the
warrants had the option to choose to exercise their warrants in accordance with the terms thereof and tender the Shares received upon such exercise in accordance with the Offer. If the holder of a warrant (a) failed to properly or timely
exercise such warrant or (b) failed to pay the applicable exercise price, in either case, before the Effective Time, such warrant expired unexercised, and no Shares were issued in respect thereof.
The foregoing description of the Offer, the Merger and the Merger Agreement and the transactions contemplated thereby does not purport to be complete and is
qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which was filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K, filed with the U.S. Securities and Exchange Commission (the
“SEC”) on March 30, 2015 and incorporated herein by reference.
Item 3.01. Notice of Delisting or Failure to Satisfy
a Continued Listing Rule or Standard; Transfer of Listing.
On May 1, 2015, the Company (i) notified the Nasdaq Global Market
(“Nasdaq”) of the consummation of the Merger and (ii) requested that Nasdaq (x) suspend trading of the Shares effective May 1, 2015 and (y) file with the SEC a Form 25 Notification of Removal from Listing
and/or Registration to delist and deregister the Shares under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Form 25 is expected to become effective 10 days after the filing
date of the Form 25. Following delisting, the Company intends to file with the SEC a certification on Form 15 under the Exchange Act, requesting the deregistration of the Shares and the suspension of the Company’s reporting obligations under
Sections 13 and 15(d) of the Exchange Act.
Item 3.03. Material Modification to Rights of Security Holders.
The disclosure in the Introductory Note and Item 3.01 is incorporated herein by reference.
Item 5.01. Changes in Control of Registrant.
The
disclosure in the Introductory Note and Item 3.01 is incorporated herein by reference.
Item 5.02. Departure of Directors or Certain
Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
In accordance with the terms of the
Merger Agreement, Yuzo Toda, the sole director of Purchaser at the Effective Time, became the sole director of the Surviving Corporation until his successor is duly elected or appointed and qualified, and each of Robert J. Palay, Thomas M. Palay,
Ph.D., Kenneth C. Hunt, Craig T. January, MD, Ph.D., Stanley D. Rose, Ph.D., Sheli Z. Rosenberg, James A. Thomson, VMD, Ph.D., Michael J. Van Handel and Susan A. Willetts ceased serving as directors of the Company.
Information about Mr. Toda is contained in the Offer to Purchase dated April 3, 2015 and filed on behalf of Parent and Purchaser as Exhibit
(a)(1)(A) to the Tender Offer Statement on Schedule TO, originally filed with the SEC on April 3, 2015, as subsequently amended, which information is incorporated herein by reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change of Fiscal Year.
Pursuant to the terms of the Merger Agreement, at the Effective Time, the Company’s articles of incorporation, as in effect immediately prior to the
Effective Time, became the articles of incorporation of the Surviving Corporation. Immediately after the Effective Time, Parent, as the sole shareholder of the Surviving Corporation, and Mr. Toda, as the sole director of the Surviving
Corporation, approved and adopted the Seventh Amended and Restated Articles of Incorporation of the Company (the “Amended Articles”). A copy of the Amended Articles is included as Exhibit 3.1 to this Current Report on Form
8-K and is incorporated herein by reference.
Pursuant to the terms of the Merger Agreement, at the Effective Time, the Company’s bylaws were amended
and restated in their entirety to read as the bylaws of Purchaser, as in effect immediately prior to the Effective Time, and, as so amended and restated, became the bylaws of the Surviving Corporation (except that references to the name of Purchaser
was replaced by references to the name of the Surviving Corporation) (the “Bylaws”). A copy of the Bylaws is included as Exhibit 3.2 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 8.01. Other Events.
On May 1, 2015,
Parent filed a Japanese-language press release with the Tokyo Stock Exchange announcing the expiration and results of the Offer and the consummation of the Merger at the Effective Time. A copy of the English translation of the press release was
filed as Exhibit (a)(1)(I) to Amendment No. 3 to the Schedule TO, which was filed with the SEC on May 1, 2015 and is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
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| Exhibit
No. |
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Description |
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| 2.1 |
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Agreement and Plan of Merger, dated as of March 30, 2015, by and among FUJIFILM Holdings Corporation, Badger Acquisition Corporation and Cellular Dynamics International, Inc. (incorporated herein by reference to Exhibit 2.1 to the
Current Report on Form 8-K filed by the Company with the SEC on March 30, 2015). |
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| 3.1 |
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Seventh Amended and Restated Certificate of Incorporation of Cellular Dynamics International, Inc.* |
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| 3.2 |
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Bylaws of Cellular Dynamics International, Inc.* |
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| 99.1 |
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English translation of the press release filed by Parent with the Tokyo Stock Exchange on May 1, 2015 (incorporated herein by reference to Exhibit (a)(1)(I) to Amendment No. 3 to the Schedule TO filed by Parent with the SEC on May
1, 2015). |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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CELLULAR DYNAMICS INTERNATIONAL, INC. |
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| Date: May 1, 2015 |
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By: |
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/s/ Anna M. Geyso |
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Name: |
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Anna M. Geyso |
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Title: |
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Senior Vice President, General Counsel and Secretary |
EXHIBIT INDEX
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| Exhibit
No. |
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Description |
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| 2.1 |
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Agreement and Plan of Merger, dated as of March 30, 2015, by and among FUJIFILM Holdings Corporation, Badger Acquisition Corporation and Cellular Dynamics International, Inc. (incorporated herein by reference to Exhibit 2.1 to the
Current Report on Form 8-K filed by the Company with the SEC on March 30, 2015). |
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| 3.1 |
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Seventh Amended and Restated Certificate of Incorporation of Cellular Dynamics International, Inc.* |
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| 3.2 |
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Bylaws of Cellular Dynamics International, Inc.* |
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| 99.1 |
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English translation of the press release filed by Parent with the Tokyo Stock Exchange on May 1, 2015 (incorporated herein by reference to Exhibit (a)(1)(I) to Amendment No. 3 to the Schedule TO filed by Parent with the SEC on May
1, 2015). |
Exhibit 3.1
SEVENTH
AMENDED AND
RESTATED
ARTICLES OF INCORPORATION
OF
CELLULAR
DYNAMICS INTERNATIONAL, INC.
Pursuant to Section 180.1007 of the Wisconsin Statutes, these Seventh Amended and Restated
Articles of Incorporation shall supersede and take the place of the heretofore existing Sixth Amended and Restated Articles of Incorporation of Cellular Dynamics International, Inc. (the “Corporation”).
ARTICLE I
The
Corporation is incorporated under the Wisconsin Business Corporation Law, Chapter 180 of the Wisconsin Statutes (the “WBCL”) and any successor provisions thereto.
ARTICLE II
The name of
the Corporation is Cellular Dynamics International, Inc.
ARTICLE III
The purpose for which the Corporation is organized is to engage in any lawful activity within the purposes for which corporations may be
organized under the WBCL and any successor provisions thereto.
ARTICLE IV
The aggregate number of shares which the Corporation shall be authorized to issue is one hundred (100) consisting of one class only,
designated as “Common Stock,” with a par value of $0.0001 per share.
ARTICLE V
The address of the registered office of the Corporation is 8040 Excelsior Drive, Suite 200, Madison, Wisconsin 53717 and the name of its
registered agent at such address is CT Corporation System.
ARTICLE VI
The number of directors constituting the Board of Directors shall be such number as is fixed, from time to time, in the manner prescribed by
the By-Laws.
ARTICLE VII
Any action required to be taken at a meeting of the shareholders of the Corporation, or any other action which may be taken at a meeting of
the shareholders of the Corporation, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed
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by shareholders who would be entitled to vote at a meeting those shares with voting power to cast not less than the minimum number or, in the case of voting by voting groups, numbers of votes
that would be necessary to authorize or take the action at a meeting at which all shares entitled to vote were present and voted.
* * *
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The undersigned, the duly elected and acting Chairman of the Board and Chief Executive Officer of
Cellular Dynamics International, Inc., a Wisconsin corporation, in accordance with Section 180.1007 of the WBCL, DOES HEREBY CERTIFY THAT:
1. The name of the corporation is Cellular Dynamics International, Inc.
2. The foregoing Seventh Amended and Restated Articles of Incorporation contain one or more amendments to the existing Articles of
Incorporation of the Corporation and that such amendments were adopted on May 1, 2015 in accordance with Sections 180.1003 and 180.1004 of the WBCL.
3. These Amended and Restated Articles of Incorporation shall become effective on May 1, 2015 at 3:05 p.m. Central Daylight Time.
[Signature Page Follows]
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Executed on behalf of the Corporation as of this
1st day of May, 2015.
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| CELLULAR DYNAMICS INTERNATIONAL, INC. |
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| /s/ Robert J. Palay |
| Name: |
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Robert J. Palay |
| Title: |
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Chairman of the Board and Chief Executive Officer |
This document was drafted by: Benjamin G. Lombard, Esq.
Please return this document to:
Tanya R. Braga, Paralegal
Reinhart Boerner Van Deuren s.c.
1000 North Water Street, Suite
1700
Milwaukee, WI 53202
414-298-8354
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Exhibit 3.2
BY-LAWS
OF
CELLULAR DYNAMICS INTERNATIONAL, INC.
REFERENCE TABLE
BY-LAWS OF
CELLULAR DYNAMICS
INTERNATIONAL, INC.
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Subject Matter |
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Page |
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| ARTICLE I |
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OFFICES |
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| Section 1.01 |
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Principal and Business Offices |
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1 |
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| Section 1.02 |
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Registered Office |
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1 |
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| ARTICLE II |
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SHAREHOLDERS |
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| Section 2.01 |
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Annual Meeting |
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1 |
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| Section 2.02 |
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Special Meeting |
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1 |
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| Section 2.03 |
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Place of Meeting |
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2 |
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| Section 2.04 |
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Notice of Meeting |
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2 |
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| Section 2.05 |
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Fixing of Record Date |
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3 |
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| Section 2.06 |
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Voting Lists |
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4 |
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| Section 2.07 |
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Quorum |
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4 |
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| Section 2.08 |
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Conduct of Meetings |
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5 |
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| Section 2.09 |
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Proxies |
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5 |
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| Section 2.10 |
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Voting of Shares |
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6 |
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| Section 2.11 |
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Voting of Shares by Certain Holders |
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6 |
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| Section 2.12 |
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Waiver of Notice by Shareholders |
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7 |
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| Section 2.13 |
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Action Without Meeting |
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7 |
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| ARTICLE III |
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BOARD OF DIRECTORS |
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| Section 3.01 |
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General Powers and Number |
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8 |
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| Section 3.02 |
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Tenure and Qualifications |
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9 |
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| Section 3.03 |
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Regular Meetings |
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9 |
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| Section 3.04 |
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Special Meetings |
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| Section 3.05 |
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Notice; Waiver |
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| Section 3.06 |
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Quorum |
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10 |
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| Section 3.07 |
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Manner of Acting |
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10 |
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| Section 3.08 |
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Conduct of Meetings |
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10 |
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| Section 3.09 |
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Vacancies |
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11 |
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| Section 3.10 |
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Compensation |
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11 |
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| Section 3.11 |
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Presumption of Assent |
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11 |
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| Section 3.12 |
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Committees |
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12 |
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| Section 3.13 |
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Unanimous Consent Without Meeting |
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| Section 3.14 |
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Conduct of Meetings By or Through the Use of Communications Equipment |
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(a) Participation |
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13 |
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(b) Nature of the Meeting |
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13 |
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(c) Minutes of the Meeting |
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13 |
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| ARTICLE IV |
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OFFICERS |
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| Section 4.01 |
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Number |
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13 |
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| Section 4.02 |
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Election and Term of Office |
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14 |
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| Section 4.03 |
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Removal |
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14 |
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| Section 4.04 |
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Vacancies |
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14 |
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| Section 4.05 |
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Chairman of the Board |
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14 |
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| Section 4.06 |
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Chief Executive Officer |
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15 |
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| Section 4.07 |
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President |
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15 |
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| Section 4.08 |
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The Chief Financial Officer |
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15 |
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| Section 4.09 |
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The Executive Vice President |
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16 |
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| Section 4.10 |
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The Senior Vice President |
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16 |
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| Section 4.11 |
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The Vice Presidents |
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| Section 4.12 |
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The Secretary |
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| Section 4.13 |
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The Treasurer |
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| Section 4.14 |
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Assistant Secretaries and Assistant Treasurers |
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| ARTICLE V |
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CONTRACTS BETWEEN CORPORATION AND RELATED PERSONS |
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| ARTICLE VI |
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CONTRACTS, LOANS, CHECKS AND DEPOSITS; SPECIAL CORPORATE ACTS |
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| Section 6.01 |
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Contracts |
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19 |
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| Section 6.02 |
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Loans |
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19 |
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| Section 6.03 |
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Checks, Drafts, Etc. |
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20 |
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| Section 6.04 |
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Deposits |
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20 |
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| Section 6.05 |
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Voting of Securities Owned by this Corporation |
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20 |
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| ARTICLE VII |
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CERTIFICATES FOR SHARES AND THEIR TRANSFER |
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| Section 7.01 |
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Certificates for Shares |
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21 |
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| Section 7.02 |
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Facsimile Signatures and Seal |
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21 |
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| Section 7.03 |
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Signature by Former Officers |
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21 |
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| Section 7.04 |
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Transfer of Shares |
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21 |
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| Section 7.05 |
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Lost, Destroyed or Stolen Certificates |
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22 |
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| Section 7.06 |
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Consideration for Shares |
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22 |
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| Section 7.07 |
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Restrictions on Transfer |
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22 |
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| Section 7.08 |
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Stock Regulations |
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23 |
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| ARTICLE VIII |
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INDEMNIFICATION |
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23 |
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| ARTICLE IX |
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SEAL |
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24 |
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| ARTICLE X |
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AMENDMENTS |
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24 |
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| Section 10.01 |
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By Shareholders |
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24 |
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| Section 10.02 |
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By-Law Fixing Quorum or Voting Requirements for Shareholders |
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24 |
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| Section 10.03 |
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By-Law Fixing Quorum or Voting Requirements for Directors |
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25 |
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| Section 10.04 |
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By Directors |
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25 |
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| Section 10.05 |
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Implied Amendments |
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25 |
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| ARTICLE XI |
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GENDER |
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26 |
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iii
BY-LAWS
OF
CELLULAR DYNAMICS
INTERNATIONAL, INC.
ARTICLE I
OFFICES
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SECTION 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.
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SECTION 1.02. |
Registered Office. |
The registered office of the Corporation required by the Wisconsin
Business Corporation Law to be maintained in the State of Wisconsin may be, but need not be, identical with the principal office in the State of Wisconsin. The address of the registered office may be changed from time to time by the Board of
Directors. The business office of the registered agent of the Corporation shall be identical to such registered office.
ARTICLE II
SHAREHOLDERS
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SECTION 2.01. |
Annual Meeting. |
The annual meeting of the shareholders shall be held at such time and
date as may be fixed by or under the authority of the Board of Directors and set forth in the notice of meeting, for the purpose of electing directors and for the transaction of such other business as may come before the meeting. If the election of
directors shall not be held on the day designated herein 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 convenient.
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SECTION 2.02. |
Special Meeting. |
Special meetings of the shareholders, for any purpose or purposes,
unless otherwise prescribed by applicable law, may be called by the Chairman of the
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Board (if one is designated), the Chief Executive Officer, the President or the Board of Directors, and shall be called by the President at the written request of (a) the holders of not less
than one-tenth of all votes entitled to be cast on any issue proposed to be considered at the special meeting, if such holders sign, date and deliver to the Corporation a written request stating the purpose or
purposes for such meeting, or (b) one-third of the directors then in office. Only business within the purpose described in the notice of a special meeting may be conducted at such meeting.
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SECTION 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(s) 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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SECTION 2.04. |
Notice of Meeting. |
(a) Notice stating the place, day and hour of the meeting and, in
case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten nor more than 60 days before the date of such meeting to each shareholder of record entitled to vote at such meeting and to
any other shareholder entitled by the Wisconsin Business Corporation Law or the Articles of Incorporation to receive notice of the meeting. Such notice may be oral or written and may be communicated in person, by e-mail, telephone, facsimile or
other form of wire or wireless communication, or by mail or private carrier. If mailed or delivered by private carrier, such notice shall be deemed to be delivered when deposited in the United States mail, with postage thereon prepaid, or when
deposited with the private carrier, as appropriate, addressed to the shareholder at his address as it appears on the stock record books of the Corporation. Oral notice shall be deemed to be delivered when communicated. If notice is given by e-mail,
facsimile or other form of wire or wireless communication, such notice shall be deemed to be delivered when transmitted.
(b) If any
shareholder meeting is adjourned to a different date, time or place, notice need not be given of the new date, time and place, if the new date, time and place is announced at the meeting before adjournment. If a new record
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date for the adjourned meeting is, or must be fixed, then notice must be given pursuant to the requirements of paragraph (a) of this section 2.04 to those persons who are shareholders
as of the new record date.
(c) If the purpose of any shareholder meeting is to consider a proposed amendment to the Articles of
Incorporation, a plan of merger or share exchange, the sale, lease, exchange or other disposition of all, or substantially all, of the Corporation’s property, the dissolution of the Corporation or the removal of a director, the notice must so
state and be accompanied by, respectively, a copy or summary of the:
(i) Articles of Amendment;
(ii) plan of merger or share exchange; or
(iii) agreements regarding the disposition of all of the Corporation’s property.
If the proposed corporate action creates dissenters’ rights, the notice must state that shareholders are or may be entitled to assert dissenters’
rights, and must be accompanied by a copy of sections 180.1301 to 180.1331 of the Wisconsin Business Corporation Law.
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SECTION 2.05. |
Fixing of Record Date. |
For the purpose of determining (a) shareholders entitled to
notice of any meeting of shareholders or any adjournment thereof; (b) shareholders entitled to demand a special meeting; (c) shareholders entitled to vote or take any other action; or (d) a listing of shareholders for any other
purpose, 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 70 days and, in case of a meeting of shareholders, not less than 10 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 adjournment thereof, except where 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. If
no record date is fixed by the Board of Directors for the determination of shareholders entitled to notice of, or to vote at, a meeting of shareholders, or shareholders entitled to receive a share dividend or distribution, the record date for
determination of such shareholders shall be at the close of business on:
(a) With respect to an annual shareholder meeting or any special
meeting called by the Board of Directors or any person specifically authorized by the Board of Directors or these By-Laws to call a meeting, the day before the first notice is delivered to shareholders;
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(b) With respect to the payment of a share dividend, the date the Board of Directors authorizes
the share dividend; and
(c) With respect to a distribution to shareholders, other than a distribution involving a purchase, redemption or
other acquisition of the Corporation’s shares, the date on which the Board of Directors authorizes the distribution.
The record date for determining
shareholders entitled to demand a special meeting is the date that the first shareholder signs the demand.
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SECTION 2.06. |
Voting Lists. |
After fixing a record date for a shareholder meeting, the Corporation
shall prepare a list of the names of all of its shareholders who are entitled to notice of such meeting. The list shall be arranged by class or series of shares and shall show the address of and number of shares held by each shareholder. The
Corporation shall make the shareholder list available for inspection by any shareholder at the Corporation’s principal office, or at a place identified in the meeting notice in the city where the meeting will be held, for a period beginning two
business days after notice of the meeting is given and continuing until the date of the meeting. During the period that the shareholder list is available for inspection, a shareholder or his agent or attorney may, on written demand, inspect and,
subject to the requirements of the Wisconsin Business Corporation Law, copy the list, at his expense, during regular business hours. The Corporation shall also make the shareholder list available at the meeting, and any shareholder or his agent or
attorney may inspect the list at any time during the meeting or any adjournment thereof. Failure to comply with the requirements of this section shall not affect the validity of any action taken at such meeting.
If the Articles of Incorporation or the Wisconsin Business Corporation Law
provides for voting by a single voting group on a matter, action on that matter is taken when voted upon by that voting group. Shares entitled to vote as a separate voting group may take action on a matter at a meeting only if a quorum of those
shares exists with respect to that matter. Unless the Articles of Incorporation, these By-Laws or the Wisconsin Business Corporation Law provide otherwise, a majority of the votes entitled to be cast on a
matter by the voting group constitutes
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a quorum of that voting group for action on that matter. If a quorum exists, action on a matter by the voting group, other than the election of directors, 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, these By-Laws or the Wisconsin Business Corporation Law requires a greater number of
affirmative votes. If the Articles of Incorporation or the Wisconsin Business Corporation Law provide for voting by two or more voting groups on a matter, action on that matter is taken only when voted upon by each of those voting groups counted
separately. Except as provided in the Articles of Incorporation, each director shall be elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting in which a quorum is present. 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. 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.
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SECTION 2.08. |
Conduct of Meetings. |
The Chairman of the Board, if one be designated, and in his
absence, the Chief Executive Officer, the President or a Vice President, in the order provided under sections 4.09, 4.10 and 4.11, 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. The Secretary of the Corporation shall act as secretary of all meetings of the shareholders. In the absence of the Secretary, the presiding officer may appoint any other person to act
as secretary of the meeting.
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 duly authorized attorney-in-fact. An appointment of a proxy is effective when received by the
Secretary or other officer or agent of the Corporation authorized to tabulate votes. Except as provided in the Wisconsin Business Corporation Law, a proxy may be revoked at any time before it is voted, unless the proxy conspicuously states that it
is irrevocable and the appointment is coupled with an interest. A proxy may be revoked 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 proxy shall not of itself constitute a revocation. No proxy shall be valid after 11 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.
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SECTION 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 this section 2.10, the Articles of Incorporation or the Wisconsin Business
Corporation Law. Shares of this Corporation are not entitled to a vote if they are owned, directly or indirectly, by a second domestic corporation or a foreign corporation and this Corporation owns, directly or indirectly, a sufficient number of
shares entitled to elect a majority of the directors of the second domestic corporation or foreign corporation. The foregoing sentence does not limit the power of a corporation to vote shares held by it in a fiduciary capacity.
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SECTION 2.11. |
Voting of Shares by Certain Holders. |
(a) If the name signed on a vote, consent, waiver
or proxy appointment corresponds to the name of its shareholder, the Corporation, if acting in good faith, may accept the vote, consent, waiver or proxy appointment and give it effect as the act of the shareholder.
(b) If the name signed on a vote, consent, waiver or proxy appointment does not correspond to the name of its shareholder, the Corporation, if
acting in good faith, may accept the vote, consent, waiver or proxy appointment and give it effect as the act of the shareholder if any of the following apply:
(i) The shareholder is an entity and the name signed purports to be that of an officer or agent of the entity.
(ii) The name signed purports to be that of a personal representative, administrator, executor, guardian or conservator
representing the shareholder and, if the Corporation requests, evidence of fiduciary status acceptable to the Corporation is presented with respect to the vote, consent, waiver or proxy appointment.
(iii) The name signed purports to be that of a receiver or trustee in bankruptcy of the shareholder and, if the Corporation
requests, evidence of this status acceptable to the Corporation is presented with respect to the vote, consent, waiver or proxy appointment.
(iv) The name signed purports to be that of a pledgee, beneficial owner or attorney-in-fact of the shareholder and, if the Corporation requests, evidence acceptable to the Corporation of the signatory’s authority to sign for the shareholder is presented with respect to the
vote, consent, waiver or proxy appointment.
(v) Two or more persons are the shareholder as
co-owners or fiduciaries and the name signed purports to be the name of at least one of the co-owners or fiduciaries and the person signing appears to be acting on
behalf of all co-owners or fiduciaries.
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(c) The Corporation may reject a vote, consent, waiver or proxy appointment if the Secretary or
other officer or agent of the Corporation who is authorized to tabulate votes, acting in good faith, has reasonable basis for doubt about the validity of the signature on it or about the signatory’s authority to sign for the shareholder.
(d) The Corporation and its officer or agent who accepts or rejects a vote, consent, waiver or proxy appointment in good faith and in
accordance with this section 2.11 are not liable in damages to the shareholder for the consequences of the acceptance or rejection.
(e) Corporate action based on the acceptance or rejection of a vote, consent, waiver or proxy appointment under this section 2.11 is
valid unless a court of competent jurisdiction determines otherwise.
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SECTION 2.12. |
Waiver of Notice by Shareholders. |
Whenever any notice 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 stated in the notice, by
the shareholder entitled to such notice, shall be deemed equivalent to the giving of such notice. The waiver shall contain the same information as would have been required to be included in such notice, except the time and place of meeting, and
shall be delivered to the Corporation for inclusion in the corporate records. A shareholder’s attendance at a meeting, in person or by proxy, waives objection to all of the following: (a) lack of notice or defective notice of the meeting,
unless the shareholder at the beginning of the meeting or promptly upon arrival objects to holding the meeting or transacting business at the meeting; and (b) consideration of a particular matter at a meeting that is not within the purpose
described in the meeting notice, unless the shareholder objects to consideration of the matter when it is presented.
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SECTION 2.13. |
Action Without Meeting. |
Action required or permitted to be taken at a shareholders
meeting may be taken without a meeting in any of the following ways: (a) without action by the
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Board of Directors, by all shareholders entitled to vote on the action; and (b) if the Articles of Incorporation so provide, by shareholders who would be entitled to vote at a meeting those
shares with voting power to cast not less than the minimum number or, in the case of voting by groups, numbers of votes that would be necessary to authorize or take the action at a meeting at which all shares entitled to vote were present and voted,
except action may not be taken under this item (b) with respect to an election of directors for which shareholders may vote cumulatively. Action under this section 2.13 must be evidenced by one or more written consents describing the
action taken, signed by the number of shareholders necessary to take the action as provided in this section 2.13 and delivered to the Corporation for inclusion in the corporate records. Action taken under this section 2.13 is effective
when consents representing the required number of shares are delivered to the Corporation, unless the consent specifies a different effective date. Within ten days after action taken under (b) of the first sentence of this section 2.13 is
effective, the Corporation shall give notice of the action to shareholders who, on the record date determined in accordance with the following sentence, were entitled to vote on the action but whose shares were not represented on the written
consent. If not otherwise fixed under the terms of these By-Laws or in accordance with the Wisconsin Business Corporation Law, the record date for determining shareholders entitled to take action without a
meeting is the date that the first shareholder signs the consent. A consent signed under this section 2.13 has the effect of a meeting vote and may be described as such in any document. If the Wisconsin Business Corporation Law requires that
notice of proposed action be given to shareholders who are not entitled to vote on the action and the action is to be taken by consent under this section 2.13, the Corporation shall give those nonvoting shareholders written notice of the
proposed action at least ten days before the action becomes effective. The notice shall comply with the requirements of the Wisconsin Business Corporation Law and shall contain or be accompanied by the same material that would have been required to
be sent to nonvoting shareholders in a notice of meeting at which the proposed action would have been submitted to the shareholders for action.
ARTICLE III
BOARD OF DIRECTORS
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SECTION 3.01. |
General Powers and Number. |
The business and affairs of the Corporation shall be managed
under the direction of its Board of Directors. Unless otherwise provided in the Articles of Incorporation, the authorized number of Directors shall be such number as determined (or as amended from time to time) by resolution adopted by either the
shareholders or the Directors.
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SECTION 3.02. |
Tenure and Qualifications. |
Each director shall hold office until the next annual
meeting of shareholders and until his successor shall have been elected (unless there is a decrease in the number of directors), or until his prior death, resignation or removal. Except as provided in the Articles of Incorporation, a director may be
removed from office only if the number of votes cast to remove the director exceeds the number of votes cast not to remove him. 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 be removed by the shareholders only at a meeting called for the purpose of removing a director, and the meeting notice shall state that the purpose, or one of the purposes, of the meeting is removal
of the director.
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SECTION 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.
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SECTION 3.04. |
Special Meetings. |
Special meetings of the Board of Directors may be called by or at the
request of the Chairman of the Board, the Chief Executive Officer, the President, Secretary or any two directors. The person or persons authorized to call special meetings 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.
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SECTION 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 delivered not less than 24 hours prior to the time of the meeting. Such notice may be oral or written and may be communicated in person, by e-mail, telephone, facsimile or other form of
wire or wireless communication or by mail or private carrier. If mailed or delivered by private carrier, such notice shall be deemed to be delivered when deposited in the United States mail, with postage thereon prepaid, or when deposited with the
9
private carrier, as appropriate, addressed to the director at his business address or at such other address as such director shall have designated in writing and filed with the Secretary. Oral
notice shall be deemed to be delivered when communicated. If notice is given by e-mail, facsimile or other form of wire or wireless communication, such notice shall be deemed to be delivered when transmitted. Whenever any notice whatever is required
to be given to any director of the Corporation under the Articles of Incorporation, these By-Laws or any provision of law, a waiver thereof in writing, signed at any time, whether before or after the time
stated in the notice, 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, unless the director at the
beginning of the meeting or promptly upon his arrival objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting. 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.
Except as otherwise provided by law or by the Articles of Incorporation or
these By-Laws, a majority of the number of directors set forth in section 3.01 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. Any amendment to this section 3.06 is subject to the requirements set forth in section 10.03.
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SECTION 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. Any amendment to this
section 3.07 is subject to the requirements of section 10.03.
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SECTION 3.08. |
Conduct of Meetings. |
The Chairman of the Board, and in his absence, the Chief Executive
Officer, the President or a Vice President who is a director, in the order provided under sections 4.09, 4.10 and 4.11, 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.
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Except as provided in the Articles of Incorporation, 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 (a) the Board of Directors; (b) the affirmative vote of a majority of the
directors then in office, if the directors remaining in office constitute less than a quorum of the Board of Directors; or (c) by vote of the shareholders as provided in section 2.07. 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. If the vacant office was held by a director elected by a voting group of shareholders, only
the holders of shares of the voting group may vote to fill the vacancy if it is filled by the shareholders, and only the remaining directors elected by that voting group may vote to fill the vacancy if it is filled by the directors. A vacancy that
will occur at a specific later date (by reason of resignation effective at a later date) may be filled before the vacancy occurs, but the new director may not take office until the vacancy occurs. The term of a director elected to fill a vacancy
expires at the next shareholders meeting at which directors are elected. However, if his term expires, he shall continue to serve until his successor is elected and qualified or until there is a decrease in the number of directors.
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SECTION 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. Members of the Board of Directors shall be paid their expenses, if any, of attendance at each meeting of the Board of Directors. 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 or 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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SECTION 3.11. |
Presumption of Assent. |
A director of the Corporation who is present and is announced as
present at a meeting of the Board of Directors or a committee thereof of which he is a member at which action on any corporate matter is taken shall be presumed to
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have assented to the action taken unless (a) he dissented or abstained and his dissent or abstention is entered in the minutes of the meeting; (b) he objects at the beginning of the
meeting (or promptly upon his arrival) to the holding of the meeting or transacting business at the meeting; (c) he shall deliver written notice, in accordance with the applicable requirements of law, of his dissent or abstention to the
presiding officer of the meeting before its adjournment or to the Corporation immediately after adjournment of the meeting; or (d) he dissented or abstained and the minutes of the meeting fail to show his dissent or abstention and he delivers
to the Corporation written notice of that failure; in accordance with the applicable requirements of law, promptly after receiving the minutes. Such right to dissent or abstain shall not apply to a director who voted in favor of such action.
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SECTION 3.12. |
Committees. |
Except as provided in the Articles of Incorporation, the Board of Directors
by resolution adopted by the affirmative vote of a majority of the number of directors set forth in section 3.01 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: (a) authorize dividends or other distributions to shareholders; (b) elect any of the principal
officers of the Corporation; (c) fill vacancies in the Board of Directors or committees created pursuant to this section 3.12; (d) approve or propose to shareholders action that the Wisconsin Business Corporation Law requires to be
approved by shareholders; (e) amend the Articles of Incorporation; (f) adopt, amend or repeal By-Laws; (g) approve a plan of merger not requiring shareholder approval; (h) authorize or
approve reacquisition of shares, except according to a formula or method prescribed by the Board of Directors; or (i) authorize or approve the issuance or sale or contract for sale of shares, or determine the designation of 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 described by the Board of Directors. Sections 3.03
to 3.11 of this ARTICLE III which govern meetings, action without meetings, notice and waiver of notice, quorum and voting requirements of the Board of Directors apply to committees and their members. 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 Chief Executive Officer or the President or upon request by the chairman
of such meeting.
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SECTION 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 (or a committee of 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 the directors then in office. Action taken under this section 3.13 is effective when the last director signs the consent, unless the consent specifies a different effective
date. A consent signed under this section 3.13 has the effect of a unanimous vote taken at a meeting in which all directors were present, and may be described as such in any document.
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SECTION 3.14. |
Conduct of Meetings By or Through the Use of Communications Equipment. |
(a)
Participation. Any or all directors may participate in a regular or special meeting of the Board of Directors or in a committee meeting of the Board of Directors by, or may conduct the meeting through the use of, any means of communication by
which any of the following occurs: (i) all participating directors may simultaneously hear each other during the meeting; or (ii) all communication during the meeting is immediately transmitted to each participating director, and each
participating director is able to immediately send messages to all other participating directors. A director participating in such a meeting is deemed to be present in person at the meeting.
(b) Nature of the Meeting. If a meeting is conducted pursuant to this section 3.14, the presiding officer at the meeting shall
inform each participating director that a meeting is taking place at which official business may be transacted.
(c) Minutes of the
Meeting. If requested by a director, the Secretary of the Corporation shall prepare minutes of a meeting pursuant to this section and distribute such minutes to each director.
ARTICLE IV
OFFICERS
The principal officers of the Corporation shall consist of the Chairman of the
Board, if one is designated, a Chief Executive Officer, a President, a Chief Financial Officer, one or more Vice Presidents (if one is designated, the number, precedence and duties thereof to be determined by the Board of Directors), a Secretary and
a Treasurer, if one is designated. The Board of Directors, in its
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discretion, may elect or appoint any or all of such principal officers. The Board of Directors may also designate and elect a Vice President as Executive Vice President and may designate and
elect any other Vice President as Senior Vice President. The officers may include such other officers, including, without limitation, assistant officers who may be appointed and have such designations as are determined by or under the direction of
the Board of Directors. Any two or more offices may be held by the same person.
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SECTION 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 successor shall have been duly elected or until his prior death, resignation or removal.
Any officer may be removed by the Board of Directors at any time, without or
without cause, 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.
A vacancy in any office because of death, resignation, removal,
disqualification or otherwise, may be filled by the Board of Directors for the unexpired portion of the term.
SECTION 4.05. Chairman
of the Board. The Chairman of the Board, if one is designated, (a) shall, when present, preside at all meetings of the shareholders and of the Board of Directors; (b) may call a meeting of the Board of Directors; and (c) may sign
with the Secretary, or other proper officer thereunto authorized by the Board of Directors, deeds, mortgages, bonds, contracts, certificates for shares of the Corporation, the issuance of which shall have been authorized by the Board of Directors or
other instrument which the Board of Directors has authorized to be executed except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these By-Laws to
some other agent of the Corporation or shall be required by law to be otherwise signed and executed. The Chairman of the Board shall have such other powers and duties as he may be called upon to perform by the Board of Directors.
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SECTION 4.06. Chief Executive Officer. The Chief Executive Officer shall be the principal
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 shall, in the absence of the Chairman of the Board if one be
designated, preside at all meetings of the shareholders and of the Board of Directors. He 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 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 Chief Executive Officer. He 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 may authorize the President, the Chief Financial Officer, any Vice President or other officer or
agent of the Corporation to sign, execute and acknowledge such document or instruments in his place and stead. In general he 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.
SECTION 4.07. President. The President shall have responsibility for the general and active
management of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect, and in the absence of the Chairman of the Board and the Chief Executive Officer or in the event of their
inability or refusal to act shall preside at all meetings of the stockholders and the Board of Directors. The President shall have the authority to sign, execute and acknowledge, on behalf of the Corporation, all contracts, deeds, mortgages, bonds,
stock certificates, 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. The
President shall be subject to the control of the Board of Directors and the Chief Executive Officer. In the absence of the Chief Executive Officer or in the event of his death, inability or refusal to act, the President shall perform the duties of
the Chief Executive Officer and when so acting shall have all the powers and duties of the Chief Executive Officer. In general, he shall perform all duties incident to the office of the President and such other duties as may be assigned to him from
time to time by the Board of Directors or the Chief Executive Officer.
SECTION 4.08. The Chief Financial Officer. The Chief
Financial Officer shall be the principal financial officer of the Corporation and, subject to the control of the Chief Executive Officer, the President and the Board of Directors,
15
shall in general supervise and control all of the financial affairs of the Corporation. In the absence of the Chief Executive Officer or the President or in the event of his death, inability or
refusal to act, subject to authorization by the Board of Directors, the Chief Financial Officer may perform the duties of the Chief Executive Officer or the President and when so acting shall have all the powers and duties of the Chief Executive
Officer or the President. The Chief Financial Officer shall perform such other duties and shall have such authority as from time to time may be assigned to him by the Board of Directorsthe, the Chief Executive Officer or the President.
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SECTION 4.09. |
The Executive Vice President. |
The Executive Vice President, if one is designated, shall
assist the Chief Executive Officer and the President in the discharge of supervisory, managerial and executive duties and functions. In the absence of the Chief Executive Officer or the President or in the event of his death, inability or refusal to
act, the Executive Vice President shall perform the duties of the Chief Executive Officer or the President and when so acting shall have all the powers and duties of the Chief Executive Officer or the President. He shall perform such other duties
and shall have such authority as from time to time may be assigned to him by the Board of Directors, the Chief Executive Officer or the President.
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SECTION 4.10 |
The Senior Vice President. |
The Senior Vice President, if one is designated, in the
absence of the Executive Vice President or in the event of his death, inability or refusal to act, or in the event for any reason it shall be impracticable for the Executive Vice President to act personally, shall perform the duties of the Executive
Vice President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Executive Vice President. The Senior Vice President shall perform such other duties and have such authority as from time to time may be
delegated or assigned to him by the Chief Executive Officer, by the President or by the Board of Directors.
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SECTION 4.11. |
The Vice Presidents. |
In the absence of the Chief Executive Officer, the President or,
if designated, the Executive Vice President or the Senior Vice President, or in the event of his or their death, inability or refusal to act, or in the event for any reason it shall be impracticable for the Chief Executive Officer, the President or,
if designated, the Executive Vice President or the Senior Vice President 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
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the duties of the Chief Executive Officer, the President, the Executive Vice President or the Senior Vice President, as applicable, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the Chief Executive Officer, the President, the Executive Vice President or the Senior Vice President, as applicable. A Vice President shall perform such other duties and have such authority as from time to time may be
delegated or assigned to him by the Chief Executive Officer, by the 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 authority
to act in the stead of the Chief Executive Officer, the President, the Executive Vice President or the Senior Vice President.
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SECTION 4.12. |
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, if any; (d) keep or arrange for the keeping of a register of the post office address of each shareholder, officer and director, as furnished to the Secretary;
(e) have general charge of the stock transfer books of the Corporation; and (f) in general perform all duties and exercise such authority as from time to time may be delegated or assigned to him by the Chief Executive Officer, by the
President or by the Board of Directors.
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SECTION 4.13. |
The Treasurer. |
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. He shall: (a) have charge and custody of and be responsible for all funds and securities of the Corporation;
(b) 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 depositaries as shall be selected in
accordance with the provisions of section 6.04; 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 by the Chief Executive Officer, by the President or by the Board of Directors.
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SECTION 4.14. |
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 Chief Executive Officer, the President or a
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Vice President certificates for shares of the Corporation the issuance of which shall have been authorized by a resolution of the Board of Directors. An Assistant Treasurer 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 to time be delegated or assigned to them by the Secretary or the Treasurer, respectively, or by the Chief Executive Officer, the President or the Board of Directors.
ARTICLE V
CONTRACTS BETWEEN
CORPORATION AND RELATED PERSONS
Any contract or other transaction between the Corporation and one or more of its directors, or between the Corporation and any firm of which
one or more of its directors are members or employees, or in which he or they are interested, or between the Corporation and any corporation or association of which one or more of its directors are shareholders, members, directors, officers or
employees, or in which he or they are interested, shall be valid for all purposes, notwithstanding his or their interest in such contract or transaction, if any of the following is true:
(a) the material facts of the transaction and the director’s interest were disclosed or known to the Board of Directors or a committee of
the Board of Directors and the Board of Directors or committee authorized, approved or specifically ratified the transaction in the manner provided below;
(b) the material facts of the transaction and the director’s interest were disclosed or known to the shareholders entitled to vote and
they authorized, approved or specifically ratified the transaction by the affirmative vote of a majority of the shares entitled to be counted in the manner provided below; or
(c) the transaction was fair to the Corporation.
For purposes of (a) above, a contract or a transaction is authorized, approved or specifically ratified if it received the affirmative
vote of a majority of the directors on the Board of Directors or on the committee acting on the transaction who have no direct or indirect interest in the transaction. If a majority of the directors who have no direct or indirect interest in the
transaction vote to authorize, approve or ratify the transaction, a quorum is present for purposes of taking the action under this ARTICLE V. The presence of, or a vote cast by, a director with a direct or indirect interest in the transaction
does not affect the validity of any action taken under this ARTICLE V if the transaction is otherwise authorized, approved or ratified as provided in this ARTICLE V.
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For purposes of (b) above, a contract or transaction is authorized, approved or specifically
ratified if it receives the vote of a majority of the shares entitled to be counted under this ARTICLE V. Shares owned by or voted under the control of a director who has a direct or indirect interest in the contract or transaction, and shares
owned by or voted under the control of an entity in which the director has a material financial interest or in which the director is a general partner, may not be counted in a vote of shareholders to determine whether to authorize, approve or ratify
a contract or transaction. The vote of those shares shall be counted in determining whether the transaction is approved under other sections of these By-Laws. A majority of the shares, whether or not present,
that are entitled to be counted in a vote on the transaction under this ARTICLE V constitutes a quorum for purposes of taking action under this ARTICLE V.
ARTICLE VI
CONTRACTS, LOANS,
CHECKS
AND DEPOSITS; SPECIAL CORPORATE ACTS
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. In the absence of other designation, all deeds,
mortgages and instruments of assignment or pledge made by the Corporation shall be executed in the name of the Corporation by the Chief Executive Officer, the President or one of the Vice Presidents and by the Secretary, an Assistant Secretary, the
Treasurer or an Assistant Treasurer. The Secretary or an Assistant Secretary, when necessary or required, shall affix the corporate seal, if any, thereto. When so executed, no other party to such instrument or any third party shall be required to
make any inquiry into the authority of the signing officer or officers.
No loans shall be contracted on behalf of the Corporation 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.
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SECTION 6.03. |
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.
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 depositaries as may be selected by or under the authority of a resolution of the Board of Directors.
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SECTION 6.05. |
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 owned or controlled by this Corporation may be voted at any meeting of security holders of such other corporation by the Chairman of the
Board of this Corporation if he be present, or in his absence by the Chief Executive Officer, the President or any Vice President of this Corporation who may be present, and (b) whenever, in the judgment of the Chairman of the Board, or in his
absence, of the Chief Executive Officer, the President or 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 Chief Executive Officer, the President or one of the Vice Presidents of this Corporation, 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.
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ARTICLE VII
CERTIFICATES FOR SHARES
AND THEIR
TRANSFER
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SECTION 7.01. |
Certificates for Shares. |
Certificates representing shares of the Corporation shall be
in such form as shall be determined by the Board of Directors. Each certificate shall state on its face the name of the Corporation and that the Corporation is organized under the laws of the State of Wisconsin and shall include the name of the
person to whom issued and the number and class of shares and the designation of series, if any, that the certificate represents. Such certificates shall be signed by either the Chairman of the Board, the Chief Executive Officer, the President or a
Vice President, alone or together with 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 canceled and no new certificate shall be issued until the
former certificate for a like number of shares shall have been surrendered and canceled, except as provided in section 7.05.
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SECTION 7.02. |
Facsimile Signatures and Seal. |
The seal, if any, of the Corporation on any certificates
for shares may be a facsimile. The signatures of the Chairman of the Board, the Chief Executive Officer, the President, a Vice President, the Secretary or an Assistant Secretary upon a certificate may be facsimiles.
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SECTION 7.03. |
Signature by Former Officers. |
If 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, the certificate may be issued by the Corporation with the same effect as if he were such officer at the date of its
issue.
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SECTION 7.04. |
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 exercise all the rights and powers of an owner. Where a certificate for
shares is presented to the Corporation with a request for registration of transfer, the
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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 had discharged any such duty. The Corporation may require reasonable assurance that said endorsements are genuine and effective and may require compliance with
such other regulations as may be prescribed by or under the authority of the Board of Directors.
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SECTION 7.05. |
Lost, Destroyed or Stolen Certificates. |
Where the owner claims that his certificate for
shares has been lost, destroyed or wrongfully taken, then 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) satisfies such other reasonable requirements as the Board of Directors or the Chief Executive Officer, the President or Secretary may prescribe, including, if requested, delivery to the Corporation of an indemnity bond or other agreement of
indemnity.
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SECTION 7.06. |
Consideration for Shares. |
The Board of Directors may authorize shares to be issued for
consideration consisting of any tangible or intangible property or benefit to the Corporation, including cash, promissory notes, services performed, contracts for services to be performed or other securities of the Corporation. Before the
Corporation issues shares, the Board of Directors shall determine that the consideration received or to be received for the shares to be issued is adequate. The Board of Directors determination is conclusive insofar as the adequacy of consideration
for the issuance of shares relates to whether the shares are validly issued, fully paid and nonassessable. 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. 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 is paid. If the services are not performed, the benefits are not received or the note is not paid, the
Corporation may cancel, in whole or in part, the shares escrowed or restricted and the distributions credited.
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SECTION 7.07. |
Restrictions on Transfer. |
The face or reverse side of each certificate representing
shares shall bear a conspicuous notation of any restriction imposed upon the transfer of such shares.
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SECTION 7.08. |
Stock Regulations. |
The Board of Directors shall have the power and authority to make
all such further rules and regulations not inconsistent with applicable law as it may deem expedient concerning the issue, transfer and registration of certificates representing shares of the Corporation.
ARTICLE VIII
INDEMNIFICATION
The Corporation shall, to the fullest extent permitted or required by Sections 180.0850 to 180.0859, inclusive, of the Wisconsin
Business Corporation Law, including any amendments thereto (but in the case of any such amendment only to the extent such amendment permits or requires the Corporation to provide broader indemnification rights than prior to such amendment),
indemnify its Directors and Officers against any and all Liabilities, and advance any and all reasonable Expenses, incurred thereby in any Proceeding to which any such Director or Officer is a Party because he or she is or was a Director or Officer
of the Corporation. The Corporation shall also indemnify an employee who is not a Director or Officer, to the extent that the employee has been successful on the merits or otherwise in defense of a Proceeding, for all Expenses incurred in the
Proceeding if the employee was a Party because he or she is or was an employee of the Corporation. The rights to indemnification granted hereunder shall not be deemed exclusive of any other rights to indemnification against Liabilities or the
advancement of Expenses which a Director, Officer or employee may be entitled under any written agreement, Board resolution, vote of shareholders, the Wisconsin Business Corporation Law or otherwise. The Corporation may, but shall not be required
to, supplement the foregoing rights to indemnification against Liabilities and advancement of Expenses under this ARTICLE VIII by the purchase of insurance on behalf of any one or more of such Directors, Officers or employees, whether or not the
Corporation would be obligated to indemnify or advance Expenses to such Director, Officer or employee under this ARTICLE VIII. All capitalized terms used in this ARTICLE VIII and not otherwise defined herein shall have the meaning set forth in
Section 180.0850 of the Wisconsin Business Corporation Law.
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ARTICLE IX
SEAL
The Board of Directors may
provide a corporate seal which shall be circular in form and shall have inscribed thereon the name of the Corporation and the state of incorporation and the words “Corporate Seal.”
ARTICLE X
AMENDMENTS
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SECTION 10.01. |
By Shareholders. |
Except as limited by sections 10.02 and 10.03 or by applicable
law, 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
present or represented at any annual or special meeting of the shareholders at which a quorum is in attendance.
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SECTION 10.02. |
By-Law Fixing Quorum or Voting Requirements for Shareholders. |
If authorized by the Articles of Incorporation, the shareholders may adopt or amend a By-Law that fixes
a greater or lower quorum requirement or greater voting requirement for shareholders or voting groups of shareholders than is otherwise provided by these By-Laws or the Wisconsin Business Corporation Law. The
adoption or amendment of a By-Law that adds, changes or deletes a greater or lower quorum requirement or a greater voting requirement for the shareholders must meet the same quorum requirement and be adopted
by the same vote and voting groups required to take action under the quorum and voting requirements then in effect. A By-Law that fixes a greater or lower quorum requirement or greater voting requirement for
shareholders under this section 10.02 may not be adopted, altered, amended or repealed by the Board of Directors.
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SECTION 10.03. |
By-Law Fixing Quorum or Voting Requirements for Directors. |
A By-Law that fixes a greater or lower quorum requirement or a greater voting requirement for the Board
of Directors may be amended or repealed as follows:
(a) If originally adopted by the shareholders, only by the shareholders, unless the By-Law provides otherwise as permitted by this section 10.03; and
(b) if originally adopted by the
Board of Directors, either by the shareholders or by the Board of Directors.
A By-Law adopted or
amended by the shareholders that fixes a greater or lower quorum requirement or a greater voting requirement for the Board of Directors may provide that it may be amended or repealed only by a specified vote of either the shareholders or the Board
of Directors. Action by the Board of Directors to adopt or amend a By-Law that changes the quorum or voting requirement for the Board of Directors must meet the same quorum requirement and be adopted by the
same vote required to take action under the quorum and voting requirements then in effect, unless a different voting requirement is specified in accordance with the prior sentence.
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SECTION 10.04. |
By Directors. |
The Board of Directors may amend or repeal these By-Laws or adopt new By-Laws except to the extent (a) the Articles of Incorporation, section 10.02 or 10.03 of these
By-Laws or any provision of the Wisconsin Business Corporation Law reserve that power exclusively to the shareholders; or (b) the shareholders in adopting, amending or repealing a particular By-Law provide within these By-Laws that the Board of Directors may not amend, repeal or readopt that By-Law.
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SECTION 10.05. |
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.
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ARTICLE XI
GENDER
As used in these By-Laws wherever appropriate, the masculine gender shall also refer to the feminine gender.
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