FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
WAUSAU-MOSINEE PAPER CORPORATION
(Exact name of registrant as specified in its charter)
WISCONSIN 39-0690900
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1244 KRONENWETTER DRIVE
MOSINEE, WISCONSIN 54455-9099
(Address of principal executive offices) (Zip Code)
MOSINEE PAPER CORPORATION
1985 EXECUTIVE STOCK OPTION PLAN
(Full title of the plan)
GARY P. PETERSON
SENIOR VICE PRESIDENT-FINANCE, SECRETARY AND TREASURER
WAUSAU-MOSINEE PAPER CORPORATION
1244 KRONENWETTER DRIVE
MOSINEE, WI 54455-9099
(715) 693-4470
Copies to:
ARNOLD J. KIBURZ III
RUDER, WARE & MICHLER,
A LIMITED LIABILITY S.C.
P.O. BOX 8050
WAUSAU, WI 54402-8050
(715) 845-4336
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed maximum
Title of securities Amount to be Maximum offering aggregate offering Amount of
to be registered registered price per unit price registration fee
<S> <C> <C> <C> <C>
Common stock, 200,000 $ (1) $ (1) $1,201(2)
no par value shares
<FN>
(1) Estimated solely for purposes of calculating registration fee pursuant
to Rule 457(h).
(2) Calculated pursuant to Rule 457(c) as of December 11, 1997.
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Wausau-Mosinee Paper Corporation
("Registrant") or the Mosinee Paper Corporation 1985 Executive Stock
Option Plan (the "Plan") are incorporated by reference in and made a
part of this Registration Statement by this reference except to the
extent that any statement or information therein is modified, superseded
or replaced by a statement or by information contained in any other
subsequently filed document incorporated herein by reference:
(1) Registrant's annual report on Form 10-K for the year ended
August 31, 1997.
(2) Descriptions of Registrant's common stock in:
(a) Item 14, Form 10, December 10, 1973;
(b) Item 4, caption "Amendment of Restated Articles of
Incorporation," quarterly report on Form 10-Q for the
period ended February 29, 1992;
(c) Description of common stock set forth in Exhibit (99)(a)
to Registrant's Form S-8, registration number 33-44922, as
filed on August 25, 1995;
(d) Item 5, caption "Common Stock Increase," quarterly report
on Form 10-Q for the period ended November 30, 1995; and
(e) Any amendment or report, including a report on Form 10-K,
Form 8-K or Form 10-Q, filed by the Registrant for the
purpose of updating the descriptions contained in the
documents described in (a), (b), (c) and (d).
(3) From the date of filing of such documents described in (1) and
(2), above, all documents filed by Registrant or the Plan with
the Commission pursuant to Section 13(a), 13(c), 14, or 15(d) of
the Securities Exchange Act of 1934 subsequent to the date of
this Registration Statement and prior to the filing of a post-
effective amendment to the Registration Statement which indicates
that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Registrant is incorporated under the Wisconsin Business Corporation
Law pursuant to sections 180.0850 to 180.0859 of the Wisconsin statutes
and, subject to the limitations stated therein, is required to indemnify
any director or officer against liability and reasonable expenses
(including attorneys' fees) incurred by such person in the defense of any
threatened, pending or completed civil, criminal, administrative or
investigative action, suit or proceeding in which such person is made a
party by reason of being or having been a director or officer of
Registrant, unless liability was incurred because such person breached or
failed to perform a duty owed to the Registrant which constituted (i) a
willful failure to deal fairly with the Registrant or its shareholders in
connection with a matter in which such person has a material conflict of
interest; (ii) a violation of criminal law, unless such person had
reasonable cause to believe his or her conduct was lawful or no reasonable
cause to believe his or her conduct was unlawful; (iii) a transaction from
which such person derived an improper personal profit; or (iv) willful
misconduct. The statute provides that indemnification pursuant to its
provisions is not exclusive of other rights or indemnification to which a
person may be entitled under the Registrant's articles of incorporation or
bylaws, or any written agreement, vote of shareholders or disinterested
directors, or otherwise.
Section 180.0859 of the Wisconsin statutes provides that it is the
public policy of the State of Wisconsin that such indemnification
provisions apply, to the extent applicable to any other proceeding, to,
among other things, the offer, sale or purchase of securities in any
proceeding involving a state or federal statute.
Sections 10.1-10.2 of the Registrant's bylaws are substantially
similar to the provisions of sections 180.0850 to 180.0859 of the
Wisconsin statutes. The Registrant's bylaws extend coverage to directors
or officers serving in a fiduciary or administrative capacity and also set
forth procedures to be followed in obtaining indemnification. Officers
and directors of the Registrant are also insured, subject to certain
specified exclusions and deductible and maximum amounts, against loss from
claims arising in connection with their acting in their respective
offices, which include claims under the Securities Act of 1933, as
amended.
The Registrant has in effect insurance policies which, among other
things, insure directors and officers of the Registrant against certain
claims which are not indemnified by the Registrant.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit 4.1 Restated Articles of Incorporation of Wausau-Mosinee
Paper Corporation, as amended effective as of
December 17, 1997.
Exhibit 4.2 Restated Bylaws of Wausau-Mosinee Paper Corporation, as
last amended December 17, 1997.
<PAGE>
Exhibit 4.3 Mosinee Paper Corporation 1985 Executive Stock Option
Plan (incorporated by reference to Item 6(a), Exhibit
10.2 to the Registrant's Quarterly Report on Form 10-Q
for the period ended September 30, 1997).
Exhibit 5.1 Opinion of Ruder, Ware & Michler, A Limited Liability
S.C.
Exhibit 23.1 Consent of Wipfli Ullrich Bertelson LLP.
Exhibit 24.1 Powers of attorney are set forth under "Signatures,"
page 8 of this Form S-8.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end
of the estimated maximum offering range may
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be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii)
do not apply if the information required to be
included in a post-effective amendment by those
paragraphs is contained in the periodic reports filed
by the Registrant pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration
Statement.
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new Registration Statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing
of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is incorporated
by reference in the Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer, or controlling
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person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of
such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Wausau, State of
Wisconsin, on December 17, 1997.
WAUSAU-MOSINEE PAPER CORPORATION
By: GARY P. PETERSON
Gary P. Peterson
Senior Vice President-Finance,
Secretary and Treasurer
(On behalf of Registrant and
as Principal Financial Officer and
Principal Accounting Officer)
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<PAGE>
SIGNATURES
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Daniel R. Olvey and Gary P.
Peterson and each of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration
Statement on Form S-8 and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and any other regulatory authority, granting unto said
attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing required and necessary to be done in and
about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed on December 17, 1997 by
the following persons in the capacities indicated.
SAN W. ORR, JR. DANIEL R. OLVEY
San W. Orr, Jr. Daniel R. Olvey
Chairman of the Board President and Chief Executive
Officer and a Director
(Principal Executive Officer)
DAVID B. SMITH, JR. GARY W. FREELS
David B. Smith, Jr. Gary W. Freels
Director Director
HARRY R. BAKER RICHARD L. RADT
Harry R. Baker Richard L. Radt
Director Director
RICHARD G. JACOBUS WALTER ALEXANDER
Richard G. Jacobus Walter Alexander
Director Director
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<PAGE>
EXHIBIT INDEX
TO
FORM S-8
OF
WAUSAU-MOSINEE PAPER CORPORATION
PURSUANT TO <section>232.102(D) OF REGULATION S-T
(17 C.F.R. <section>232.102(D))
EXHIBIT 4.1 RESTATED ARTICLES OF INCORPORATION OF WAUSAU-MOSINEE
PAPER CORPORATION, AS AMENDED EFFECTIVE AS OF
DECEMBER 17, 1997.
EXHIBIT 4.2 RESTATED BYLAWS OF WAUSAU-MOSINEE PAPER CORPORATION, AS
LAST AMENDED DECEMBER 17, 1997.
EXHIBIT 5.1 OPINION OF RUDER, WARE & MICHLER, A LIMITED LIABILITY
S.C.
EXHIBIT 23.1 CONSENT OF WIPFLI ULLRICH BERTELSON LLP.
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EXHIBIT 4.1
ARTICLES OF INCORPORATION
OF
WAUSAU-MOSINEE PAPER CORPORATION
As last amended December 17, 1997
ARTICLE 1.
The name of the corporation shall be WAUSAU-MOSINEE PAPER CORPORATION.
ARTICLE 2.
The period of its existence shall be perpetual.
ARTICLE 3.
The purpose shall be to engage in any lawful activity within the
purposes for which corporations may be organized under the Wisconsin
Business Corporation Law, Chapter 180 of the Wisconsin Statutes.
ARTICLE IV
The total number of shares of all classes of stock which the Company
shall have authority to issue is 100,500,000. Of these (1) 100,000,000
shares shall be common stock without par value (hereinafter sometimes
referred to as "Common Stock"); and (2) 500,000 shares shall be shares of
preferred stock without par value (hereinafter sometimes referred to as
"Preferred Stock").
The Board of Directors is expressly authorized to adopt, from time to
time, a resolution or resolutions providing for the establishment and
issuance of Preferred Stock without par value in one or more series; to
fix the number of shares in each such series and to fix the designations
and all the powers, preferences and relative, participating, optional or
other special rights, and the qualifications, limitations or restrictions
of each such series; and to determine that shares of each such series
shall have more than one vote, or one vote, or less than one vote, or
shall have no voting rights.
The holder of each outstanding share of Common Stock shall have one
vote per share with respect to all matters submitted to a vote of
shareholders.
ARTICLE 5.
No holder of shares of this corporation shall be entitled to
preemptive rights or to any right to subscribe for, purchase or receive
any part of any new or additional issue of stock of any class, whether now
or hereafter authorized, or of any bonds, debentures, or other securities
convertible into stock of any class, and all such additional shares of
stock, bonds, debentures or other securities convertible into stock may be
issued and disposed of by the Board of Directors to such person or persons
and on such terms and for such consideration (so far as may be permitted
by law) as the Board of Directors, in their absolute discretion, may deem
advisable.
<PAGE>
ARTICLE 6.
The Board of Directors of this Corporation shall consist of such
number of members as the By-laws may provide, but not less than three (3)
members nor more than nine (9) members. Members of the Board of Directors
shall have such qualifications as may from time to time be provided by the
By-laws of this Corporation. Directors shall be divided into three (3)
classes to be as nearly equal as possible. The term of office of
Directors of the first class shall expire at the first annual meeting of
shareholders after their election, the second class shall expire at the
second annual meeting after their election, and the third class shall
expire at the third annual meeting after their election. At each annual
meeting after such classification, the number of Directors equal to the
number of the class whose term expires at the time of such meeting shall
be elected to hold office until the third succeeding annual meeting. Each
Director shall hold office for the term for which he is elected and until
his successor shall have been elected and qualified. No change in the
number of Directors will affect the term of office of a Director. The
affirmative vote for four-fifths of the outstanding shares entitled to
vote for the election of a Director shall be required to remove such
Director from office. Amendment of this Article of Incorporation (Article
6) shall require the affirmative vote of four-fifths of all classes of
stock of the Company entitled to vote thereon.
ARTICLE VII
The address of the registered office is One Clark's Island, P.O. Box
1408, Wausau, Marathon County, Wisconsin 54401, and the name of the
registered agent at such address is Daniel R. Olvey.
ARTICLE 8.
PART I
These Articles of Incorporation may be amended in the manner
authorized by the Wisconsin Business Corporation Law at the time of
amendment unless a specific article of incorporation (including this
article) requires a different proportion of the shares of stock of all
classes of stock of the Company.
PART II
(a) Except as set forth in clause (d) of this Part II, the
affirmative vote or consent of the holders of four-fifths of all classes
of stock of this Corporation entitled to vote in elec- tions of directors,
considered for the purposes of this Part II as one class, shall be
required (i) for the adoption of any agreement for the merger or
consolidation of this Corporation with or into any other corporation, or
(ii) to authorize any sale, lease, exchange, mortgage, pledge or other
disposition of all or any substantial part of the assets of this
Corporation to, or any sale, lease, exchange, mortgage, pledge or other
disposition to this Corporation or any subsidiary thereof in exchange
for securities of this Corporation of any assets of, any other
corporation, person or other entity, if, in either case, as of the record
date for the determination of shareholders entitled to notice thereof and
to vote thereon or consent thereto such other corporation, person or
entity is the beneficial owner, directly or indirectly, of more than ten
per cent of the outstanding shares of stock of this Corporation entitled
to vote in elections of directors considered for the purposes of this Part
<PAGE>
II as one class. Such affirmative vote or consent shall be in addition to
the vote or consent of the holders of the stock of this Corpora- tion
otherwise required by law, these Articles of Incorporation or any
agreement between this Corporation and any national securities exchange.
(b) For the purposes of this Part II, (i) any corporation, person or
other entity shall be deemed to be the beneficial owner of any shares of
stock of this Corporation (A) which it has the right to acquire pursuant
to any agreement, or upon exercise of conversion rights, warrants or
options, or otherwise or (B) which are beneficially owned, directly or
indirectly (including shares deemed owned through application of subclause
(A), above), by any other corporation, person or entity with which it or
its "affiliate" or "associate" (as defined below) has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting
or disposing of stock of this Corporation, or which is its "affiliate" or
"associate" as those terms are defined in Rule 12b-2 of the General Rules
and Regulations under the Securities Exchange Act of 1934 as in effect on
January 1, 1969, and (iii) the outstanding shares of any class of stock of
this Corporation shall include shares deemed owned through application of
subclauses (A) and (B) above but shall not include any other shares which
may be issuable pursuant to any agreement, or upon exercise of conversion
rights, warrants or options, or otherwise.
(c) The Board of Directors shall have the power and duty to determine
for the purposes of this Part II on the basis of infor- mation known to
such Board, whether (i) such other corporation, person or other entity
beneficially owns more than ten per cent of the outstanding shares of
stock of this Corporation entitled to vote in elections of directors, (ii)
a corporation, person or entity is an "affiliate" or "associate" (as
defined above) of another, and (iii) the memorandum of understanding
referred to below is substantially consistent with the transaction covered
thereby. Any such determination shall be conclusive and binding for all
purposes of this Part II.
(d) The provisions of this Part II shall not be applicable to (i) any
merger or consolidation of this Corporation, with or into any other
corporation, or any sale, lease, exchange, mortgage, pledge or other
disposition of all or any substantial part of the assets of this
Corporation to, or any sale, lease, mortgage, pledge or other disposition
of this Corporation or any subsidiary thereof in exchange for securities
of this Corporation of any assets of, any other corporation, person or
other entity, if such transaction is approved by resolution of the Board
of Directors of the Corporation, provided that a majority of the members
of the Board of Directors voting for the approval of such transaction were
duly elected and acting members of the Board of Directors prior to the
time any such other corporation, person or other entity shall have become
a beneficial owner of more than ten per cent (10%) of the shares of stock
of this corporation entitled to vote in an election of directors; or (ii)
any merger or consolidation of this Corporation with, or any sale, lease,
exchange, mortgage, pledge or other disposition to this Corpora- tion or
any subsidiary thereof of any assets of any corporation of which a
majority of the outstanding shares of all classes of stock entitled to
vote in elections of directors is owned of record or beneficially by this
Corporation and its subsidiaries.
(e) No amendment to these Articles of Incorporation shall amend,
alter, change or repeal any of the provisions of this Part II, unless the
amendment effecting such amendment, alteration, change or repeal shall
<PAGE>
receive the affirmative vote or consent of the holders of four-fifths of
all classes of stock of this corporation entitled to vote in elections of
directors, considered for the purposes of this Part II as one class.
ARTICLE IX
PART I
(a) Except as otherwise expressly provided in Part II of this Article
IX and in addition to any other provision of law and as may otherwise be
set forth in these Articles, the consummation of any Business Combination
shall require that all of the following conditions shall have been met:
(i) The aggregate amount of the cash and the Fair Market Value
as of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders of
Common Stock in such Business Combination shall be at least equal to
the highest of the following:
(A) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by the Interested Shareholder for any shares of Common
Stock acquired by it (1) within the two-year period immediately
prior to the first public announcement of the proposal of the
Business Combination (the "Announcement Date") or (2) in the
transaction in which it became an Interested Shareholder,
whichever is higher;
(B) the Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Interested
Shareholder became an Interested Shareholder (such latter date is
referred to in this Article IX as the "Determination Date"),
whichever is higher; and
(C) (if applicable) the price per share equal to the Fair
Market Value per share of Common Stock determined pursuant to
paragraph (a)(i)(B) above, multiplied by the ratio of (1) the
highest per share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid by the
Interested Shareholder for any shares of Common Stock acquired by
it within the two-year period immediately prior to the
Announcement Date to (2) the Fair Market Value per share of
Common Stock on the first day in such two-year period upon which
the Interested Shareholder acquired any shares of Common Stock.
(ii) The aggregate amount of the cash and the Fair Market Value
as of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders of
shares of any class of outstanding Voting Stock other than Common
Stock (and other than Institutional Voting Stock), shall be at least
equal to the highest of the following (it being intended that the
requirements of this paragraph (a)(ii) shall be required to be met
with respect to every class of outstanding Voting Stock [other than
Institutional Voting Stock], whether or not the Interested Shareholder
has previously acquired any shares of a particular class of Voting
Stock):
(A) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers'
<PAGE>
fees) paid by the Interested Shareholder for any shares of such
class of Voting Stock acquired by it (1) within the two-year
period immediately prior to the Announcement Date or (2) in the
transaction in which it became an Interested Shareholder,
whichever is higher;
(B) (if applicable) the highest preferential amount per
share to which the holders of shares of such class of Voting
Stock are entitled in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation;
(C) the Fair Market Value per share of such class of Voting
Stock on the Announcement Date or on the Determination Date,
whichever is higher; and
(D) (if applicable) the price per share equal to the Fair
Market Value per share of such class of Voting Stock determined
pursuant to paragraph (a)(ii)(C) above, multiplied by the ratio
of (1) the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees) paid by
the Interested Shareholder for any shares of such class of Voting
Stock acquired by it within the two-year period immediately prior
to the Announcement Date to (2) the Fair Market Value per share
of such class of Voting Stock on the first day in such two-year
period upon which the Interested Shareholder acquired any shares
of such class of Voting Stock.
(iii) The consideration to be received by holders of a
particular class of outstanding Voting Stock (including Common Stock)
shall be in cash or in the same form as the Interested Shareholder has
previously paid for shares of such class of Voting Stock. If the
Interested Shareholder has paid for shares of any class of Voting
Stock with varying forms of consideration, the form of consideration
for such class of Voting Stock shall be either cash or the form used
to acquire the largest number of shares of such class of Voting Stock
previously acquired by it.
(iv) After such Interested Shareholder has become an Interested
Shareholder and prior to the consummation of such Business
Combination: (A) except as approved by a majority of the Continuing
Directors, there shall have been no failure to declare and pay at the
regular date therefor any full quarterly dividends (whether or not
cumulative) on the outstanding Preferred Stock; (B) there shall have
been (1) no reduction in the annual rate of dividends paid on the
Common Stock (except as necessary to reflect any subdivision of the
Common Stock), except as approved by a majority of the Continuing
Directors, and (2) an increase in such annual rate of dividends as
necessary to reflect any reclassifica- tion (including any reverse
stock split), recapitalization, reorganization or any similar
transaction which has the effect of reducing the number of outstanding
shares of the Common Stock, unless the failure so to increase such
annual rate is approved by a majority of the Continuing Directors; and
(C) such Interested Shareholder shall have not become the beneficial
owner of any additional shares of Voting Stock except as part of the
transaction which results in such Interested Shareholder becoming an
Interested Share holder.
(v) After such Interested Shareholder has become an Interested
Shareholder, such Interested Shareholder shall not have received the
<PAGE>
benefit, directly or indirectly (except proportionately as a
shareholder), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantages
provided by the Corporation, whether in anticipation of or in
connection with such Business Combination or otherwise.
(vi) A proxy or information statement describing the proposed
Business Combination and containing the information specified for
proxy or information statements under the Securities Exchange Act of
1934 and the rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations) shall be mailed
by or on behalf of and at the expense of the Interested Shareholder
seeking to effect such Business Combination, to Shareholders of the
Corporation at least 30 days prior to the consummation of such
Business Combination (whether or not such proxy or information
statement is required to be mailed pursuant to such Act or subsequent
provisions).
(b) The term "Business Combination", as used in this Article IX,
shall mean:
(i) any merger or consolidation of the Corporation or any
Subsidiary with (A) any Interested Shareholder or (B) any other
corporation (whether or not itself an Interested Shareholder) which
is, or after such merger or consolidation would be, an Affiliate of an
Interested Shareholder; and
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to
or with any Interested Shareholder or any Affiliate of any Interested
Shareholder of any assets of the Corporation or any Subsidiary having
an aggregate Fair Market Value of $1,000,000 or more; and
(iii) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Shareholder or any Affiliate of any Interested Shareholder in exchange
for cash, securities or other property (or a combination thereof)
having an aggregate Fair Market Value of $1,000,000 or more; and
(iv) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an
Interested Shareholder or any Affiliate of any Interested Shareholder;
and
(v) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
other transaction (whether or not with or into or otherwise involving
an Interested Shareholder) which has the effect, directly or
indirectly, of increasing the proportionate share of the outstanding
shares of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly owned by
any Interested Shareholder or any Affiliate of any Interested
Shareholder.
<PAGE>
Part II
The provisions of Part I of this Article IX shall be applicable to
each particular Business Combination unless (a) such Business Combination
shall have been approved by the affirmative vote of at least two-thirds of
the voting power of all shares of Voting Stock (considered for purposes of
this Article IX as one class, it being understood that for purposes of
this Article IX, each share of Voting Stock shall have the number of votes
granted to it pursuant to Article IV of these Articles of Incorporation)
which are then held by Independent Shareholders or (b) a majority of the
Continuing Directors shall by resolution have approved a memorandum of
understanding with such Interested Shareholder with respect to and
substantially consistent with such Business Combination.
Part III
For the purposes of this Article IX, the following terms shall have
the meaning hereinafter set forth:
(a) "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on November 19,
1984.
(b) A person shall be a "beneficial owner" of any Voting Stock:
(i) which such person or any of its Affiliates or Associates (as
herein defined) beneficially owns, directly or indirectly; or
(ii) which such person or any of its Affiliates or Associates
has (A) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise,
or (B) the right to vote pursuant to any agreement, arrangement or
understanding; or
(iii) which are beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of
Voting Stock.
(c) "Continuing Director" shall mean any member of the Board of
Directors of the Corporation (the "Board") who is unaffiliated with the
Interested Shareholder referred to in the definition of "Business
Combination" in (b) of Part I of this Article IX and was a member of the
Board prior to the time that the Interested Shareholder became an
Interested Shareholder and any successor of a Continuing Director who is
unaffiliated with the Interested Shareholder and is recommended to succeed
a Continuing Director by a majority of Continuing Directors then on the
Board.
(d) "Fair Market Value" means: (i) in the case of stock, the highest
closing sale price during the 30-day period immediately preceding the date
in question of a share of such stock on the Composite Tape for the New
York Stock Exchange-Listed Stocks, or, if such stock is not quoted on the
Composite Tape for the New York Stock Exchange, or, if such stock is not
<PAGE>
listed on such Exchange, on the principal United States securities
exchange registered under the Securities Exchange Act of 1934 on which
such stock is listed, or, if such stock is not listed on any such
Exchange, the highest closing bid quotation with respect to a share of
such stock during the 30-day period preceding the date in question on the
National Association of Securities Dealers, Inc. Automated Quotations
System ("NASDAQ") or, if NASDAQ is not then in use, any other system then
in use, or, if no such quotations are available, the Fair Market Value on
the date in question of a share of such stock as determined by the Board
in good faith; and (ii) in the case of property other than cash or stock,
the Fair Market Value of such property on the date in question as
determined by the Board in good faith.
(e) "Independent Shareholder" shall mean any person who or which:
(i) is the beneficial owner, directly or indirectly, of one or
more shares of Voting Stock, and
(ii) is not the Interested Shareholder, an Affiliate or an
Associate of the Interested Shareholder or a party to or subject to
any agreement or understanding with the Interested Shareholder or any
Affiliate of an Associate thereof for the purpose of acquiring,
holding, voting or disposing of any shares of Voting Stock; which
Interested Shareholder or Affiliate or Associate of the Interested
Shareholder is referred to in the definition of "Business Combination"
in (b) of Part I of this Article IX.
(f) "Institutional Voting Stock" shall mean any class of Voting Stock
which was issued to and continues to be held solely by one or more
insurance companies, pension funds, commercial banks, savings banks and/or
similar financial institutions or institutional investors.
(g) "Interested Shareholder" shall mean any person (other than the
Corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or indirectly, of more
than 10% of the voting power of the outstanding Voting Stock; or
(ii) is an Affiliate of the Corporation and at any time within
the two-year period immediately prior to the date in question, became
the beneficial owner, directly or indirectly, of 10% or more of the
voting power of the then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any shares
of Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any
Interested Shareholder, if such assignment or succession shall have
occurred in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act
of 1933.
For the purposes of determining whether a person is an Interested
Shareholder pursuant to this paragraph (g), the number of shares of Voting
Stock deemed to be outstanding shall include shares deemed owned through
application of paragraph (b) of this Part III but shall not include any
other shares of Voting Stock which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion
rights, warrants or options, or otherwise.
<PAGE>
(h) In the event of any Business Combination in which the Corporation
survives, the phrase "consideration other than cash to be received" as
used in paragraphs (a)(i) and (ii) of Part I of this Article IX shall
include the shares of Common Stock and/or the shares of any other class of
outstanding Voting Stock retained by the holders of such shares.
(i) A "person" shall mean any individual, firm, corporation or other
entity.
(j) "Subsidiary" means any corporation of which a majority of any
class of equity security is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the definition of
Interested Shareholder set forth in paragraph (g) of this Part III, the
term "Subsidiary" shall mean only a corporation of which a majority of
each class of equity security is owned, directly or indirectly, by the
Corporation.
(k) "Voting Stock" shall mean each share of stock of the Corporation
generally entitled to vote in elections of Directors.
The directors of the Corporation shall have the power and duty to
determine, for the purposes of this Article IX, on the basis of
information known to them after reasonable inquiry, (a) whether a person
is an Interested Shareholder, (b) whether a person is an Independent
Shareholder, (c) the number of shares of Voting Stock beneficially owned
by any person, (d) whether a person is an Affiliate or Associate of
another, (e) whether a class of Voting Stock in Institutional Voting Stock
and (f) whether the assets which are the subject of any Business
Combination have, or the consideration to be received for the issuance or
transfer of securities by the Corporation or any Subsidiary in any
Business Combination has, an aggregate Fair Market Value of $1,000,000 or
more. Any such determination made in good faith shall be binding and
conclusive on all parties.
Part IV
Nothing contained in this Article IX shall be construed to relieve any
Interested Shareholder from any fiduciary obligation imposed by law.
Part V
Notwithstanding any other provisions of these Articles of
Incorporation or the Bylaws of the Corporation (and notwithstanding the
fact that a lesser percentage may be specified by law, these Articles of
Incorporation or the Bylaws of the Corporation), the affirmative vote of
the holders of four-fifths of all classes of stock of this Corporation
entitled to vote in elections of directors, considered for the purposes of
this Part V as one class, shall be required to amend or repeal, or adopt
any provisions inconsistent with, this Article IX of these Articles of
Incorporation.
ARTICLE X
Part I
Subject to the provisions of Part II hereof, the act of the majority
of the directors present at a meeting at which a quorum is present shall
<PAGE>
be the act of the Board of Directors, unless the act of a greater number
is required by law.
Part II
Any vacancy occurring in the Board of Directors, including a vacancy
created by an increase in the number of directors, shall be filled only by
the affirmative vote of a majority of the directors then in office, though
less than a quorum of the Board of Directors. A director elected to fill
a vacancy, other than a vacancy created by an increase in the number of
directors, shall be elected for the unexpired term of his predecessor. A
director elected to fill a vacancy created by an increase in the number of
directors shall be elected for a term of office continuing only until the
next succeeding annual election of directors of any class.
Part III
Despite any other provisions of these Articles of Incorpora- tion or
the Bylaws of the Corporation (and despite the fact that a lesser
percentage may be specified by law, these Articles of Incorporation or the
Bylaws of the Corporation), the affirmative vote of the holders of
four-fifths of all classes of stock of this Corporation entitled to vote
in elections of directors, considered for the purpose of this Part III as
one class, shall be required to amend or repeal, or adopt any provisions
inconsis- tent with, this Article X of these Articles of Incorporation.
ARTICLE XI
These articles shall supersede and take the place of the heretofore
existing Articles of Incorporation and all amendments thereto.
EXHIBIT 4.2
B Y L A W S
OF
WAUSAU-MOSINEE PAPER CORPORATION
AS RESTATED ON JUNE 17, 1992
AND LAST AMENDED ON DECEMBER 17, 1997
<PAGE>
TABLE OF CONTENTS
Page
BYLAW I. IDENTIFICATION ......................................1
Section 1.01. NAME .......................................1
Section 1.02. PRINCIPAL AND BUSINESS OFFICES .............1
Section 1.03. REGISTERED AGENT AND OFFICE ................1
Section 1.04. PLACE OF KEEPING CORPORATE RECORDS .........1
BYLAW II. SHAREHOLDERS .......................................1
Section 2.01. ANNUAL MEETING .............................1
Section 2.02. SPECIAL MEETINGS ...........................1
Section 2.03. PLACE OF MEETING ...........................2
Section 2.04. NOTICE OF MEETING ..........................2
Section 2.05. WAIVER OF NOTICE ...........................2
Section 2.06. FIXING OF RECORD DATE ......................3
Section 2.07. VOTING LIST ................................3
Section 2.08. QUORUM AND VOTING REQUIREMENTS .............4
Section 2.09. CONDUCT OF MEETINGS ........................4
Section 2.10. PROXIES ....................................4
Section 2.11. VOTING OF SHARES ...........................5
Section 2.12. VOTING OF SHARES BY CERTAIN HOLDERS ........5
Section 2.13. NOTICE OF SHAREHOLDER BUSINESS AND
NOMINATIONS ................................6
BYLAW III. BOARD OF DIRECTORS ................................9
Section 3.01. GENERAL POWERS .............................9
Section 3.02. NUMBER, TENURE, CLASS AND QUALIFICATIONS ...9
Section 3.03. ELECTION ..................................10
Section 3.04. REGULAR MEETINGS ..........................10
Section 3.05. SPECIAL MEETINGS ..........................10
Section 3.06. MEETINGS BY TELEPHONIC OR OTHER
ELECTRONIC MEANS OF COMMUNICATION .........10
Section 3.07. MANNER OF ACTING ..........................10
Section 3.08. QUORUM ....................................11
Section 3.09. VACANCIES .................................11
Section 3.10. NOTICE OF MEETINGS; WAIVER ................11
Section 3.11. CONDUCT OF MEETINGS .......................12
Section 3.12. COMPENSATION AND EXPENSES .................12
Section 3.13. DIRECTORS' ASSENT .........................13
Section 3.14. COMMITTEES ................................13
Section 3.15. ACTION WITHOUT A MEETING ..................14
Section 3.16. DIRECTOR EMERITUS .........................14
BYLAW IV. OFFICERS ..........................................14
Section 4.01. NUMBER AND TITLES .........................14
Section 4.02. ELECTION AND TERM OF OFFICE ...............14
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Section 4.03. ADDITIONAL OFFICERS, AGENTS, ETC ..........14
Section 4.04. REMOVAL ...................................15
Section 4.05. RESIGNATIONS ..............................15
Section 4.06. VACANCIES .................................15
Section 4.07. POWERS, AUTHORITY, AND DUTIES .............15
<PAGE>
Section 4.08. THE CHAIR OF THE BOARD ....................15
Section 4.09. VICE CHAIR. ...............................16
Section 4.10. THE PRESIDENT .............................16
Section 4.11. THE VICE-PRESIDENTS .......................16
Section 4.12. THE SECRETARY .............................17
Section 4.13. THE TREASURER .............................17
Section 4.14. ASSISTANT SECRETARIES AND ASSISTANT
TREASURERS ................................18
Section 4.15. CORPORATE CONTROLLER. .....................18
Section 4.16. SALARIES ..................................19
BYLAW V. CONTRACTS, LOANS, CHECKS AND DEPOSITS .............19
Section 5.01. CONTRACTS .................................19
Section 5.02. LOANS .....................................19
Section 5.03. CHECKS, DRAFTS, ETC .......................19
Section 5.04. DEPOSITS ..................................19
BYLAW VI. VOTING OF SECURITIES OWNED BY THIS CORPORATION ....19
Section 6.01. AUTHORITY TO VOTE .........................19
Section 6.02. PROXY AUTHORIZATION .......................20
BYLAW VII. CONTRACTS BETWEEN THIS CORPORATIONAND
RELATED PERSONS ..................................20
BYLAW VIII. CERTIFICATES FOR SHARES AND THEIR TRANSFER ......21
Section 8.01. CERTIFICATES FOR SHARES ...................21
Section 8.02. FACSIMILE SIGNATURES AND SEAL .............21
Section 8.03. SIGNATURE BY FORMER OFFICER ...............21
Section 8.04. CONSIDERATION FOR SHARES ..................22
Section 8.05. TRANSFER OF SHARES ........................22
Section 8.06. RESTRICTIONS ON TRANSFER ..................22
Section 8.07. LOST, DESTROYED, OR STOLEN CERTIFICATES ...23
Section 8.08. STOCK REGULATIONS .........................23
BYLAW IX. DISTRIBUTIONS .....................................23
BYLAW X. INDEMNIFICATION ....................................23
Section 10.01. MANDATORY INDEMNIFICATION ................23
Section 10.02. RIGHT TO INDEMNIFICATION; HOW DETERMINED .25
Section 10.03. TERMINATION OF A PROCEEDING IS
NONCONCLUSIVE ............................27
Section 10.04. ADVANCE PAYMENT ..........................27
Section 10.05. PARTIAL INDEMNIFICATION; INTEREST ........28
Section 10.06. LIMITATION OF DERIVATIVE PROCEEDINGS
AND RELEASE OF DERIVATIVE CLAIMS .........28
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Section 10.07. NONEXCLUSIVITY OF BYLAW X ................29
Section 10.08. INSURANCE ................................29
Section 10.09. WITNESS EXPENSES .........................30
Section 10.10. CONTRIBUTION .............................30
Section 10.11. SEVERABILITY .............................31
Section 10.12. CONTRACTUAL NATURE OF BYLAW X; REPEAL
OR LIMITATION OF RIGHTS ..................31
BYLAW XI. AMENDMENTS ........................................32
Section 11.01. BY SHAREHOLDERS ..........................32
Section 11.02. BY DIRECTORS .............................32
<PAGE>
BYLAW XII. SEAL .............................................32
BYLAW XIII. FISCAL YEAR .....................................32
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<PAGE>
B Y L A W S
OF
WAUSAU-MOSINEE PAPER CORPORATION
BYLAW I. IDENTIFICATION
Section 1.01. NAME. The name of the corporation is Wausau-Mosinee
Paper Corporation (the "corporation").
Section 1.02. PRINCIPAL AND BUSINESS OFFICES. The corporation may
have such principal and other business offices, either in or outside the
state of Wisconsin, as the board of directors may designate or as the
corporation's business may require from time to time.
Section 1.03. REGISTERED AGENT AND OFFICE. The corporation's
registered agent may be changed from time to time by the corporation or
by the board of directors. The address of the corporation's registered
office may be changed from time to time by the corporation, by the board
of directors or by the registered agent. The business office of the
corporation's registered agent shall be identical to the registered
office. The corporation's registered office may be, but need not be,
identical with the corporation's principal office in the state of
Wisconsin.
Section 1.04. PLACE OF KEEPING CORPORATE RECORDS. The records and
documents specified in Section 180.1601, Wisconsin Statutes, shall be
kept at the corporation's principal office.
BYLAW II. SHAREHOLDERS
Section 2.01. ANNUAL MEETING. The annual shareholders' meeting
shall be held at such time as may be designated by the board of directors
for the purpose of electing directors and for the transaction of such
other business as may come before the meeting.
Section 2.02. SPECIAL MEETINGS. Special shareholders' meetings may
be called by: (1) the chair; (2) the president; (3) the board of
directors or by such other officer(s) as it may authorize from time to
time; or (4) the president or secretary upon the written request of the
holders of record of at least 10% of all the votes entitled to be cast
upon the matter(s) set forth
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as the purpose of the meeting in such written request. Upon delivery to
the president or secretary of a written request pursuant to (4), above,
stating the purpose(s) of the requested meeting, dated and signed by the
person(s) entitled, as determined pursuant to Section 2.06 of these
bylaws, to request such a meeting, it shall be the duty of such officer
to whom the request is delivered to give notice of the meeting to
shareholders. Notice of any special meetings shall be given in the same
manner provided in Section 2.04 of these bylaws. Only business within
the purpose described in this special meeting notice shall be conducted
at a special shareholders' meeting.
<PAGE>
Section 2.03. PLACE OF MEETING. The board of directors may
designate any place, either in or outside the state of Wisconsin, as the
place of meeting for any annual or special meeting. If no designation is
made by the board of directors, the place of meeting shall be the
corporation's principal office. Any meeting may be adjourned by the
board of directors or the presiding officer to reconvene at such time,
date or place as it may determine.
Section 2.04. NOTICE OF MEETING. The corporation shall notify each
shareholder who is entitled to vote at the meeting, and any other
shareholder entitled to notice under Chapter 180, of the date, time, and
place of each annual or special shareholders' meeting. In the case of
special meetings, the notice shall also state the meeting's purpose.
Unless otherwise required by Chapter 180, the meeting notice shall be
given not less than 10 days nor more than 60 days before the meeting date.
Notice must be communicated in writing by mail, telegraph, teletype,
facsimile, other form of written communication. Notice, if mailed, is
effective when mailed, and such notice may be addressed to the
shareholder's address shown in the corporation's current record of
shareholders. Notice provided in any other allowable manner is effective
when received. If an annual or special meeting of shareholders is
adjourned to a different date, time or place, the corporation shall not be
required to give notice of the new date, time or place if the new date,
time or place is announced at the meeting before adjournment; provided,
however, that if the new record date for an adjourned meeting is or must
be fixed, the corporation shall give notice of the adjourned meeting to
persons who are shareholders as of the new record date.
Section 2.05. WAIVER OF NOTICE. A shareholder may waive notice of
any shareholders' meeting, before or after the date and time stated in the
notice. The waiver must be in writing, contain the same information that
would have been required in the notice (except that the time and place of
the meeting need not be stated), be signed by the shareholder, and be
delivered to the corporation for inclusion in the corporate records. A
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shareholder's attendance at a meeting, in person or by proxy, waives
objection to lack of notice or defective notice, unless the shareholder at
the beginning of the meeting or promptly upon arrival objects to holding
the meeting or transacting business at the meeting.
Section 2.06. FIXING OF RECORD DATE. For the purpose of determining
shareholders of any voting group entitled to notice of or to vote at any
meeting of shareholders, or shareholders entitled to request a special
meeting of shareholders, or shareholders entitled to receive payment of
any distribution or dividend, or in order to make a determination of
shareholders for any other proper purpose, the board of directors may fix
a future date as the record date. Such record date shall not be more than
70 days prior to the date on which the particular action, requiring such
determination of shareholders, is to be taken. If no record date is so
fixed by the board, the record date for determination of such shareholders
shall be at the close of business on:
1. With respect to the payment of a share dividend, the date the
board authorizes the share dividend;
2. With respect to a distribution to shareholders (other than
one involving a repurchase or reacquisition of shares), the date the
board authorizes the distribution; and
<PAGE>
3. With respect to any other matter for which such a
determination is required, as provided by law.
When a determination of shareholders entitled to vote at any meeting
of shareholders has been made as provided in this section, such
determination shall apply to any adjournment thereof unless the board of
directors fixes a new record date which it must do if the meeting is
adjourned to a date more than 120 days after the date fixed for the
original meeting.
Section 2.07. VOTING LIST. After fixing a record date for a meeting,
the corporation shall prepare a list of the names of all of its
shareholders who are entitled to notice of a shareholders' meeting. The
list shall be arranged by class or series of shares and show the address
of and number of shares held by each shareholder.
The corporation shall make the shareholders' list available for
inspection by any shareholder, beginning two business days after notice of
the meeting is given for which the list was prepared and continuing to the
date of the meeting, at the corporation's principal office (or at the
place identified in the meeting notice in the city where the meeting will
be held).
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A shareholder or his or her agent may, on written demand, inspect and,
subject to the limitations imposed by the Wisconsin Business Corporation
Law, copy the list, during regular business hours and at his or her
expense, during the period that it is available for inspection pursuant to
this Section 2.07. The corporation shall make the shareholders' list
available at the meeting, and any shareholder or his or her agent or
attorney may inspect the list at any time during the meeting or any
adjournment. Failure to comply with the requirements of this section
shall not affect the validity of any action taken at such meeting.
Section 2.08. QUORUM AND VOTING REQUIREMENTS. Shares entitled to
vote as a separate voting group may take action on a matter at a meeting
only if a quorum of those shares exists with respect to that matter.
Except as otherwise provided by the restated articles of incorporation,
these bylaws, or any provision of Chapter 180, a majority of the votes
entitled to be cast on the matter by the voting group shall constitute a
quorum of that voting group for action on that matter. If a quorum
exists, action on a matter (other than the election of directors under
Section 3.03 of the bylaws) by a voting group is approved if the votes
cast within the voting group favoring the action exceed the votes cast
within the voting group opposing the action, unless the articles of
incorporation, these bylaws, or any provision of Chapter 180 requires a
greater number of affirmative votes. 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. At the
adjourned meeting at which a quorum is represented, any business may be
transacted that might have been transacted at the meeting as originally
noticed.
<PAGE>
Section 2.09. CONDUCT OF MEETINGS. The president, and in his or her
absence, the chair of the board in that order, and in their respective
absences, any person chosen by the shareholders present shall call the
meeting of the shareholders to order and shall act as chair of the
meeting. The corporation's secretary shall act as secretary of all
meetings of the shareholders, but, in his or her absence, the presiding
officer may appoint any assistant secretary or other person to act as
secretary of the meeting.
Section 2.10. PROXIES. At all shareholders' meetings, a shareholder
entitled to vote may vote in person or by proxy appointed in writing by
the shareholder or by his or her duly authorized attorney-in-fact. A
proxy shall become effective when received by the secretary or other
officer or agent of the
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corporation authorized to tabulate votes. Unless otherwise provided in
the proxy, a proxy may be revoked at any time before it is voted, either
by written notice filed with the secretary or other officer or agent of
the corporation authorized to tabulate votes, or by oral notice given by
the shareholder during the meeting. The presence of a shareholder who
has filed his or her proxy shall not of itself constitute a revocation.
No proxy shall be valid after 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.
Section 2.11. VOTING OF SHARES. Each outstanding share shall be
entitled to one vote upon each matter submitted to a vote at a
shareholders' meeting, except to the extent that the voting rights of the
shares of any class or classes are enlarged, limited or denied by the
restated articles of incorporation or as otherwise required by Chapter
180.
Section 2.12. VOTING OF SHARES BY CERTAIN HOLDERS.
1. OTHER CORPORATIONS. Shares standing in another
corporation's name may be voted either in person or by proxy, by the
other corporation's president or any other officer appointed by such
president. A proxy executed by any principal officer of the other
corporation or such an officer's assistant shall be conclusive
evidence of the signer's authority to act, in the absence of express
notice to this corporation, given in writing to this corporation's
secretary, or other officer or agent of the corporation authorized to
tabulate votes, of the designation of some other person by the
corporation's board of directors or bylaws.
2. LEGAL REPRESENTATIVES AND FIDUCIARIES. Shares held by an
administrator, executor, guardian, conservator, trustee in bankruptcy,
receiver, or assignee for creditors, in a fiduciary capacity, may be
voted by the fiduciary, either in person or by proxy, without
transferring the shares into his or her name, provided that there is
filed with the secretary, before or at the time of the meeting, proper
evidence of his or her incumbency and the number of shares held.
Shares standing in a fiduciary's name may be voted by him or her,
either in person or by proxy. A proxy executed by a fiduciary shall
be conclusive evidence of the fiduciary's authority to give such
proxy, in the absence of express notice to the corporation, given in
<PAGE>
writing to the corporation's secretary, or other officer or agent of
the corporation authorized to tabulate votes, that this manner of
voting is expressly prohibited or otherwise directed by the document
creating the fiduciary relationship.
-5-
3. PLEDGEES. A shareholder whose shares are pledged shall be
entitled to vote the shares until they have been transferred into the
pledgee's name, and thereafter the pledgee shall be entitled to vote
the shares so transferred.
4. MINORS. Shares held by a minor may be voted by the minor in
person or by proxy, and no such vote shall be subject to disaffirmance
or avoidance unless before the vote the corporation's secretary, or
other officer or agent of the corporation authorized to tabulate
votes, has received written notice or has actual knowledge that the
shareholder is a minor.
5. INCOMPETENTS AND SPENDTHRIFTS. Shares held by an
incompetent or spendthrift may be voted by the incompetent or
spendthrift in person or by proxy, and no such vote shall be subject
to disaffirmance or avoidance unless before the vote the corporation's
secretary, or other officer or agent of the corporation authorized to
tabulate votes, has actual knowledge that the shareholder has been
adjudicated an incompetent or spendthrift or actual knowledge that
judicial proceedings for appointment of a guardian have been filed.
6. JOINT TENANTS. Shares registered in the names of two or
more individuals who are named in the registration as joint tenants
may be voted in person or by proxy signed by one or more of the joint
tenants if either (1) no other joint tenant or his or her legal
representative is present and claims the right to participate in the
voting of the shares or before the vote files with the corporation's
secretary, or other officer or agent of the corporation authorized to
tabulate votes, a contrary written voting authorization or direction
or written denial of authority of the joint tenant present or signing
the proxy proposed to be voted, or (2) all other joint tenants are
deceased and the corporation's secretary, or other officer or agent of
the corporation authorized to tabulate votes, has no actual knowledge
that the survivor has been adjudicated not to be the successor to the
interests of those deceased.
Section 2.13. NOTICE OF SHAREHOLDER BUSINESS AND NOMINATIONS.
A. ANNUAL MEETINGS OF SHAREHOLDERS.
(1) Nominations of persons for election to the board of
directors of the corporation and the proposal of business to be
considered by the shareholders may be made at an annual meeting of
shareholders (a) pursuant to the corporation's notice of meeting
delivered pursuant to Section 2.04 of these bylaws; (b) by or at the
direction of
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the board of directors; or (c) by any shareholder of the corporation
who is entitled to vote at the meeting, who complied with the notice
procedures set forth in subparagraphs (2) and (3) of this paragraph
<PAGE>
(A) of this bylaw and who was a shareholder of record at the
time such notice is delivered to the secretary of the corporation.
(2) For nominations or other business to be properly brought
before an annual meeting by a shareholder pursuant to clause (c) of
subparagraph (A)(1) of this bylaw, the shareholder must have given
timely notice thereof in writing to the secretary of the corporation.
To be timely, a shareholder's notice shall be delivered to the
secretary at the principal offices of the corporation not less than 60
days nor more than 90 days prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event
that the date of the annual meeting is advanced by more than 30 days
or delayed by more than 60 days from such anniversary date, notice by
the shareholder to be timely must be so delivered not earlier than the
90th day prior to such annual meeting and not later than the close of
business on the later of the 60th day prior to such annual meeting or
the 10th day following the day on which public announcement of the
date of such meeting is first made. Such shareholder's notice shall
set forth (a) as to each person whom the shareholder proposes to
nominate for election or reelection as a director, all information
relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (including such
person's written consent to being named in the proxy statement as a
nominee and to serving as a director if elected); (b) as to any other
business that the shareholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the
meeting, the reasons for conducting such business at the meeting and
any material interest in such business of such shareholder and the
beneficial owner, if any, on whose behalf the proposal is made; and
(c) as to the shareholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made (i) the
name and address of such shareholder, as they appear on the
corporation's books, and of such beneficial owner and (ii) the class
and number of shares of the corporation which are owned beneficially
and of record by such shareholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of
subparagraph (A)(2) of this bylaw to the contrary, in the event that
the number of directors to be elected to the
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board of directors of the corporation is increased and there is no
public announcement naming all of the nominees for director or
specifying the size of the increased board of directors made by the
corporation at least 70 days prior to the first anniversary of the
preceding year's annual meeting, a shareholder's notice required by
this bylaw shall also be considered timely, but only with respect to
nominees for any new positions created by such increase, if it shall
be delivered to the secretary at the principal executive offices of
the corporation not later than the close of business on the 10th day
following the day on which such public announcement is first made by
the corporation.
B. SPECIAL MEETINGS OF SHAREHOLDERS. Only such business shall be
conducted at a special meeting of shareholders as shall have been brought
before the meeting pursuant to the corporation's notice of meeting
<PAGE>
pursuant to Section 2.04 of these bylaws. Nominations of persons for
election to the board of directors may be made at a special meeting of
shareholders at which directors are to be elected pursuant to the
corporation's notice of meeting (a) by or at the direction of the board of
directors or (b) by any shareholder of the corporation who is entitled to
vote at the meeting, who complies with the notice procedures set forth in
this bylaw and who is a shareholder of record at the time such notice is
delivered to the secretary of the corporation. Nominations by
shareholders of persons for election to the board of directors may be made
at such a special meeting of shareholders if the shareholder's notice
required by subparagraph (A)(2) of this bylaw shall be delivered to the
secretary at the principal executive offices of the corporation not
earlier than the 90th day prior to such special meeting and not later than
the close of business on the later of the 60th day prior to such special
meeting or the 10th day following the day on which public announcement is
first made of the date of the special meeting and of the nominees proposed
by the board of directors to be elected at such meeting.
C. GENERAL.
(1) Only persons who are nominated in accordance with the
procedures set forth in this bylaw shall be eligible to serve as
directors and only such business shall be conducted at a meeting of
shareholders as shall have been brought before the meeting in
accordance with the procedures set forth in this bylaw. Except as
otherwise provided by law, the restated articles of incorporation or
these bylaws, the chair of the board or the president of the
corporation in that order shall have the power and duty to determine
whether a nomination or any business proposed to be brought before the
meeting was made in accordance with the procedures set forth in this
bylaw and, if any proposed
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nomination or business is not in compliance with this bylaw, to
declare that such defective proposal or nomination shall be
disregarded.
(2) For purposes of this bylaw, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document
publicly filed by the corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this bylaw, a
shareholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to
the matters set forth in this bylaw. Nothing in this bylaw shall be
deemed to affect any rights of shareholders to request inclusion of
proposals in the corporation's proxy statement pursuant to Rule 14a-8
under the Exchange Act.
BYLAW III. BOARD OF DIRECTORS
Section 3.01. GENERAL POWERS. The corporation's powers shall be
exercised by or under the authority of, and its business and affairs shall
be managed under the direction of its board of directors, subject to any
limitations set forth in the restated articles of incorporation, these
bylaws, or any provision of Chapter 180.
<PAGE>
Section 3.02. NUMBER, TENURE, CLASS AND QUALIFICATIONS. The exact
number of directors, within the minimum and maximum limitation specified
in article 6 of the restated articles of incorporation, shall be fixed
from time to time by the board of directors. Members of the board of
directors shall have such qualifications as shall be fixed from time to
time by the board of directors pursuant to a resolution adopted by the
board of directors. A director may resign at any time by filing his or
her written resignation with the secretary of the corporation. No
amendment to this Section 3.02 of Bylaw III shall amend, alter, change or
repeal any of the provisions of this Section 3.02, unless the amendment
effecting such amendment, alteration, change or repeal shall receive the
affirmative vote or consent of the holders of four-fifths of the shares of
the corporation entitled to vote thereon; provided, however, that if any
class or series of shares is entitled to vote thereon as a class, there
shall be required the affirmative vote of four-fifths of the shares of
each class of shares and series entitled to vote thereon as a class and of
the total shares entitled to vote thereon. No amendment shall be made to
this Section 3.02 of Bylaw III by the board of directors.
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Section 3.03. ELECTION. Directors shall be elected by the
shareholders at each annual shareholders' meeting. Each director is
elected by a plurality of the votes cast by the shares entitled to vote in
the election at a meeting at which a quorum is present.
Section 3.04. REGULAR MEETINGS. An annual regular meeting of the
board of directors shall be held without other notice than this bylaw
immediately after the annual meeting of shareholders, and each adjourned
session thereof. The place of such annual regular meeting shall be the
same as the place of the annual 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 notice other than such
resolution.
Section 3.05. SPECIAL MEETINGS. Special meetings of the board of
directors may be called by or at the request of the chair of the board of
directors, or the president, or a majority of the 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 in the state of Wisconsin.
Section 3.06. MEETINGS BY TELEPHONIC OR OTHER ELECTRONIC MEANS OF
COMMUNICATION. The board of directors (and any committee thereof) may, in
addition to conducting meetings in which each director participates in
person, conduct any regular or special meeting by the use of any means of
communication, provided all participating directors may simultaneously
hear each other during the meeting, 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. All participating directors shall be informed
that a meeting is taking place at which official business may be
transacted.
<PAGE>
Section 3.07. MANNER OF ACTING. Subject to Section 3.09 of
Bylaw III, 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 restated
articles of incorporation. No amendment to this Section 3.07 of Bylaw III
shall amend, alter, change or repeal any of the provisions of this
Section 3.07, unless the amendment effecting such amendment, alteration,
change or repeal shall receive the affirmative vote or consent of the
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holders of four-fifths of the shares of the corporation entitled to vote
thereon; provided, however, that if any class or series of shares is
entitled to vote thereon as a class, there shall be required the
affirmative vote of four-fifths of the shares of each class of shares and
series entitled to vote thereon as a class and of the total shares
entitled to vote thereon. No amendment shall be made to this Section 3.07
of Bylaw III by the board of directors.
Section 3.08. QUORUM. A majority of the number of directors as
required in Section 3.02 of these bylaws shall constitute a quorum for the
transaction of business at any board of directors' meeting, and a majority
of the number of directors serving on a committee as authorized in
Section 3.14 of these bylaws shall constitute a quorum for the transaction
of business at any committee meeting, but a majority of the directors
present (though less than such quorum) may adjourn the meeting from time
to time without further notice. These provisions shall not, however,
apply to the determination of a quorum for actions taken pursuant to
Bylaw VII of these bylaws or actions taken under emergency bylaws or any
other provisions of these bylaws which fix different quorum requirements.
Section 3.09. VACANCIES. Any vacancy occurring in the board of
directors, including a vacancy created by an increase in the number of
directors, shall be filled only by the affirmative vote of a majority of
the directors then in office, though less than a quorum of the board of
directors. A director elected to fill a vacancy, other than a vacancy
created by an increase in the number of directors, shall be elected for
the unexpired term of his or her predecessor. A director elected to fill
a vacancy created by an increase in the number of directors shall be
elected for a term of office continuing only until the next succeeding
annual election of directors of any class. No amendment to this
Section 3.09 of Bylaw III shall amend, alter, change or repeal any of the
provisions of this Section 3.09, unless the amendment effecting such
amendment, alteration, change or repeal shall receive the affirmative vote
or consent of the holders of four-fifths of the shares of the corporation
entitled to vote thereon; provided, however, that if any class or series
of shares is entitled to vote thereon as a class, there shall be required
the affirmative vote of four-fifths of the shares of each class of shares
and series entitled to vote thereon as a class and of the total shares
entitled to vote thereon. No amendment shall be made to this Section 3.09
of Bylaw III by the board of directors.
Section 3.10. NOTICE OF MEETINGS; WAIVER. Written notice of each
board of directors' meeting, except meetings pursuant to Section 3.04 of
these bylaws, shall be delivered personally, or by mail, private carrier,
telegram, telex, telecopy, or other
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<PAGE>
document transmitted electronically, to each director at his or her
business address or at such other address as the director shall have
designated in writing and filed with the secretary. Notice shall be
given not less than 48 hours before the meeting being noticed, or 72
hours before the meeting being noticed if the notice is given by mail or
private carrier. Oral notice may be given but in no event less than one
(1) hour before the meeting. Notice shall be deemed given at the time
it is deposited with postage prepaid in the United States mail or
delivered to the private carrier or telegraph company, as the case may
be. Notice by telex or telecopy shall be deemed given when transmitted.
Oral notice is deemed given and effective when communicated. A director
may waive notice required under this section or by law at any time,
whether before or after the time of the meeting. The waiver must be in
writing, signed by the director, and retained in the corporate record
book. A director's attendance at or participation in a meeting waives
any required notice to him or her of the meeting unless the director at
the beginning of the meeting promptly upon his or her 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 the meeting.
Section 3.11. CONDUCT OF MEETINGS. The chair of the board, and in
his or her absence, the president in that order, and in their respective
absences, any director chosen by the directors present, shall call
meetings of the board of directors to order and shall act as chair 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.
Section 3.12. COMPENSATION AND EXPENSES. 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 (1)
establish reasonable compensation of all directors for services to the
corporation as directors or may delegate this authority to an appropriate
committee; (2) 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 of the corporation
and to their estates, families, dependents, or beneficiaries for prior
services rendered to the corporation by the directors; and (3) provide for
reimbursement of reasonable expenses incurred in the performance of the
directors' duties, including the expense of traveling to and from board
meetings.
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Section 3.13. DIRECTORS' ASSENT. A director of the corporation who
is present at a meeting of the board of directors or of a committee of the
board of which he or she is a member, at which action on any corporate
matter is taken, shall be deemed to have assented to the action taken
unless (1) he or she objects at the beginning of the meeting (or promptly
upon his or her arrival) to holding it or transacting business at the
meeting; or (2) minutes of the meeting are prepared and his or her dissent
or abstention from the action taken is entered in the minutes of the
meeting; or (3) he or she delivers written notice of his or her dissent or
abstention to the presiding officer of the meeting before its adjournment
or to the corporation immediately after adjournment of the meeting. The
<PAGE>
right of dissent or abstention is not available to a director who votes in
favor of the action taken.
Section 3.14. COMMITTEES. The board of directors may create and
appoint members to one or more committees, by resolution adopted by the
affirmative vote of a majority of the number of directors required by
Section 3.02 of these bylaws. Each committee shall consist of two or more
directors. To the extent provided in the resolution as initially adopted
and as thereafter supplemented or amended by further resolution adopted by
a like vote, each committee 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 corporation's business and affairs, except that a
committee may not (1) authorize distributions; (2) approve or propose to
shareholders action that requires shareholder approval; (3) amend articles
of incorporation, or amend, adopt, or repeal bylaws; (4) approve a plan of
merger not requiring shareholder approval; (5) authorize or approve
reacquisition of shares except by a formula or method approved or
prescribed by the board of directors; (6) authorize or approve the
issuance or sale or contract for sale of shares or determine the
designation and relative rights, preferences, and limitations of a class
or series of shares, except that the board of directors may authorize a
committee or a senior executive officer of the corporation to do so within
limits prescribed by the board of directors; or (7) fill vacancies on the
board of directors or on committees created pursuant to this section,
unless the board of directors, by resolution, provides that committee
vacancies may be filled by a majority of the remaining committee 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 the committee, upon the request of the
president or of the chair of the meeting. Each committee shall fix its
own rules governing the conduct of its activities and shall make such
report of its activities to the board of directors as the board may
request.
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Section 3.15. ACTION WITHOUT A MEETING. Any action required or
permitted by the restated articles of incorporation, these bylaws, or any
provision of law to be taken by the board of directors at a board meeting
may be taken without a meeting if one or more written consents, setting
forth the action so taken, shall be signed by all of the directors
entitled to vote on the subject matter of the action and retained in the
corporate records. Action taken pursuant to written consent shall be
effective when the last director signs the consent or upon such other
effective date as is specified in the consent.
Section 3.16. DIRECTOR EMERITUS. The board of directors shall have
the authority to elect or appoint one or more individuals as a director
emeritus, each for a term ending on the date of the next subsequent
regular annual meeting of the board of directors held pursuant to the
first sentence of Section 3.04 of this Bylaw III. Each director emeritus
shall serve in an advisory capacity to the board of directors and shall
not otherwise have the power or authority of a director of the
corporation, and shall not have the power or authority to vote on any
matters submitted to a vote of the board of directors, nor shall the
presence of any such director emeritus at a meeting of the board of
directors be counted for quorum or other attendance purposes.
<PAGE>
BYLAW IV. OFFICERS
Section 4.01. NUMBER AND TITLES. The corporation's principal
officers shall be a chair of the board, one or more vice chairmen
periodically determined by the board of directors, president, one or more
vice-presidents periodically determined by the board of directors, a
secretary, a treasurer and a corporate controller, each of whom shall be
elected by the board. If there is more than one vice-president, the board
may establish designations for the vice-presidencies to identify their
functions or their order. The same natural person may simultaneously hold
more than one office.
Section 4.02. ELECTION AND TERM OF OFFICE. The officers of the
corporation shall be elected annually by the board of directors at the
first meeting of the board of directors held after each annual meeting of
the shareholders. If the election of officers shall not be held at such
meeting, such election shall be held as soon thereafter as conveniently
may be. Each officer shall hold office until his or her successor shall
have been duly elected, or until the officer's death or resignation or
removal in the manner hereinafter provided.
Section 4.03. ADDITIONAL OFFICERS, AGENTS, ETC. In addition to the
officers referred to in Section 4.01 of these
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bylaws, the corporation may have such other officers, assistants to
officers, acting officers and agents, as the board of directors may deem
necessary and may appoint. Each such person shall act under his or her
appointment for such period, have such authority, and perform such duties
as may be provided in these bylaws, or as the board may from time to time
determine. The board of directors may delegate to any officer the power
to appoint any subordinate officers, assistants to officers, acting
officers, or agents. In the absence of any officer, or for any other
reason the board of directors may deem sufficient, the board may
delegate, for such time as the board may determine, any or all of an
officer's powers and duties to any other officer or to any director.
Section 4.04. REMOVAL. The board of directors may remove any officer
or agent whenever in its judgment the corporation's best interests will be
served thereby, but the removal shall be without prejudice to the contract
rights, if any, of the person so removed. Appointment shall not of itself
create contract rights. An officer may remove, with or without cause, any
officer or assistant officer who was appointed by that officer.
Section 4.05. RESIGNATIONS. Any officer may resign at any time by
giving written notice to the board of directors, the president, or the
secretary. Any such resignation shall take effect at the time the notice
of resignation is delivered, unless the notice specifies a later effective
date. Unless otherwise specified in the notice of resignation, the
acceptance of the resignation shall not be necessary to make it effective.
Section 4.06. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification, or other reason shall be filled in
the manner prescribed for regular appointments to the office.
Section 4.07. POWERS, AUTHORITY, AND DUTIES. Officers of the
corporation shall have the powers and authority conferred and the duties
prescribed by the board of directors or the officer who appointed them in
<PAGE>
addition to and to the extent not inconsistent with those specified in
other sections of this Bylaw IV.
Section 4.08. THE CHAIR OF THE BOARD. The chair of the board of
directors shall preside at all meetings of the board of directors and
meetings of the shareholders as provided in Section 2.09 of Bylaw II. The
chair shall, whenever practicable, be consulted on all matters of general
policy and shall have such authority and duties as the board of directors
shall from time to time determine.
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Section 4.09. VICE CHAIR. One or more vice chair may be elected by
the board of directors and a vice chair may, but is not required to, be a
member of the board of directors. A vice chair who is a member of the
board of directors (or, if there is more than one such vice chair, in the
order of their election) shall, in the absence of the chair of the board
of directors, preside at all meetings of the board of directors and, as
provided in Section 2.09 of Bylaw II, meetings of the shareholders. Each
vice chair shall have such authority and duties as the board of directors
or the chair of the board shall from time to time determine.
Section 4.10. THE PRESIDENT. The president, unless otherwise
determined by the board of directors, shall be the chief executive officer
of the corporation and, subject to the control of the board of directors,
shall oversee and direct the business and affairs of the corporation. The
president shall preside at all meetings of the shareholders. The
president shall have authority, subject to such rules as may be prescribed
by the board of directors, to appoint such officers, assistants to
officers, acting officers, agents and employees of the corporation as the
president shall deem necessary, to prescribe their powers, duties and
compensation, and to delegate authority to them. Such agents and
employees shall hold office at the discretion of the president. The
president shall have authority together with another officer to sign,
execute, and deliver in the corporation's name all instruments either when
specifically authorized by the board of directors or when required or
deemed necessary or advisable by the president in the ordinary conduct of
the corporation's normal business, except in cases where the signing and
execution of the instruments shall be expressly delegated by these bylaws
or by the board to the president, acting alone, or to some other officer
or agent of the corporation or shall be required by law or otherwise to be
signed or executed by some other officer or agent. In general, the
president shall perform all duties incident to the office of president and
such other duties as may be prescribed by the board of directors from time
to time.
Section 4.11. THE VICE-PRESIDENTS. In the president's absence, or in
the event of his or her death or inability or refusal to act, or if for
any reason it shall be impractical for the president to act personally,
the vice-president (or if there is more than one vice-president, the vice-
presidents in the order designated by the board of directors, or in the
absence of any designation, in the order of their election) shall perform
the duties of the president, and when so acting, shall have all the powers
of and be subject to all the restrictions upon the president. Each vice-
president shall perform such other duties and have such authority as from
time to time may be delegated or assigned to him or her by the chair of
the board of directors,
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<PAGE>
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 or her authority to
act in the president's place.
Section 4.12. THE SECRETARY. The secretary shall:
1. keep the record of all minutes of the shareholders and of
the board of directors in one or more books provided for that purpose;
2. see that all notices are duly given in accordance with these
bylaws or as required by law;
3. be custodian of the corporation's corporate records and of
the seal of the corporation and see that the books, reports,
statements, certificates, and all other documents and records required
by law are properly kept and filed;
4. have charge, directly or through such transfer agent or
agents and registrar or registrars as the board of directors may
appoint, of the issue, transfer, and registration of certificates for
shares in the corporation and of the records thereof, such records to
be kept in such manner as to show at any time the number of shares in
the corporation issued and outstanding, the names and addresses of the
shareholders of record, the numbers and classes of shares held by
each;
5. exhibit at reasonable times upon the request of any director
the records of the issue, transfer, and registration of the
corporation's share certificates, at the place where those records are
kept, and have these records available at each shareholders' meeting;
and
6. in general, perform all duties incident to the office of
secretary and such other duties as from time to time may be assigned
to him or her by the chair of the board, the president or by the board
of directors.
Section 4.13. THE TREASURER. The treasurer shall:
1. have charge and custody of, and be responsible for, all of
the corporation's funds and securities; receive and give receipts for
monies due and payable to the corporation from any source whatsoever;
deposit all such monies in the corporation's name in such banks,
financial institutions, trust companies, or other depositories as
shall be selected in accordance with the provisions of Section 5.04 of
these bylaws; cause such funds to be
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disbursed by checks or drafts on the authorized corporation's
depositories, signed as the board of directors may require; and be
responsible for the accuracy of the amounts of, and cause to be
preserved proper vouchers for, all monies disbursed;
2. in general, perform all duties incident to the office of
treasurer and such other duties as from time to time may be delegated
or assigned to him or her by the chair of the board of directors, the
president or by the board of directors.
<PAGE>
If required by the board of directors, the treasurer shall furnish a bond
for the faithful discharge of his or her duties in such sum and with such
surety or sureties as the board shall determine.
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 president or a vice-president, certificates
for shares of the corporation the issuance of which shall have been
authorized by a resolution of the board of directors. The assistant
treasurers shall respectively, if required by the board of directors, give
bonds for the faithful discharge of their duties in such sums and with
such sureties as the board of directors shall determine. The assistant
secretaries and assistant treasurers, in general, shall perform such
duties and have such authority as shall from time to time be delegated or
assigned to them by the secretary or the treasurer, respectively, or by
the chair of the board of directors, the president or by the board of
directors.
Section 4.15. CORPORATE CONTROLLER. The corporate controller
shall:
1. assist the vice president in charge of corporate
finance in corporate financial planning, corporate cash
management, corporate capital project review, annual and other
shareholder report preparation; and general oversight of the
corporation's internal control and other accounting functions;
2. in general, perform all duties incident to the office
of corporate controller and such other duties as from time to
time may be delegated or assigned to him by the vice president in
charge of corporate finance, the president or by the board of
directors.
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Section 4.16. SALARIES. 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 as officers or employees of the
corporation, may (1) establish reasonable compensation for services to the
corporation as officers, or otherwise, or may delegate this authority to
an appropriate committee, and (2) provide for, or delegate authority to an
appropriate committee to provide for, reasonable pensions, disability or
death benefits, and other benefits or payments to officers and employees
of the corporation and to their estates, families, dependents, or
beneficiaries for prior services rendered to the corporation by the
officers and employees.
BYLAW V. CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 5.01. CONTRACTS. The board of directors may authorize any
officer or officers, agent or agents, to enter into any contract or
execute or deliver any instrument in the corporation's name and on its
behalf. The authorization may be general or confined to specific
instruments. When an instrument is so executed, no other party to the
instrument or any third party shall be required to make any inquiry into
the authority of the signing officer or officers, agent or agents.
<PAGE>
Section 5.02. LOANS. No indebtedness for borrowed money shall be
contracted on the corporation's behalf and no evidences of such
indebtedness shall be issued in its name unless authorized by or under the
authority of a resolution of the board of directors. The authorization
may be general or confined to specific instances.
Section 5.03. CHECKS, DRAFTS, ETC. All checks, drafts, or other
orders for the payment of money, or notes or other evidences of
indebtedness issued in the corporation's name, 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.
Section 5.04. DEPOSITS. All funds of the corporation not otherwise
employed shall be deposited from time to time to the corporation's credit
in such banks, trust companies, or other depositories as may be selected
by or under the authority of a resolution of the board of directors.
BYLAW VI. VOTING OF SECURITIES OWNED BY THIS CORPORATION
Section 6.01. AUTHORITY TO VOTE. Any shares or other securities
issued by any other corporation and owned or
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controlled by this corporation may be voted at any meeting of the issuing
corporation's security holders by the president of this corporation if
he or she be present, or in his or her absence by any vice-president of
this corporation who may be present.
Section 6.02. PROXY AUTHORIZATION. Whenever, in the judgment of the
president, or in his or her absence, of any vice-president, it is
desirable for this corporation to execute a proxy or written consent with
respect to any shares or other securities issued by any other corporation
and owned by this corporation, the proxy or consent shall be executed in
this corporation's name by the president or one of the vice-presidents of
this corporation, without necessity of any authorization by the board of
directors, counter-signature, or attestation by another officer. Any
person or persons designated in this manner as this corporation's proxy or
proxies shall have full right, power, and authority to vote the shares or
other securities issued by the other corporation and owned by this
corporation in the same manner as the shares or other securities might be
voted by this corporation.
BYLAW VII. CONTRACTS BETWEEN THIS 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 entity of which
one or more of its directors are members or employees or in which one or
more of its directors 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 one
or more of its directors are interested, shall not be voidable by the
corporation solely because of the director's or officer's interest in the
transaction if:
<PAGE>
1. the material facts of the transaction and the director's or
officer's interest were disclosed or known to the board of directors
or a committee of the board of directors, and a majority of
disinterested members of the board of directors or committee
authorized, approved, or specifically ratified the transaction; or
2. the material facts of the transaction and the director's or
officer's interest were disclosed or known to the shareholders
entitled to vote, and a majority of the shares held by disinterested
shareholders authorized, approved, or specifically ratified the
transaction; or
3. the transaction was fair to the corporation.
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For purposes of this Bylaw VII, a majority of directors including
directors having a direct or indirect interest in the transaction shall
constitute a quorum of the board or a committee of the board acting on the
matter.
BYLAW VIII. CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 8.01. CERTIFICATES FOR SHARES. Certificates representing
shares in the corporation shall, at a minimum, state on their face all of
the following: (1) the name of the corporation and that it is organized
under the laws of the state of Wisconsin; (2) the name of the person to
whom issued; and (3) the number and class of shares and the designation of
the series, if any, that the certificate represents. The share
certificates shall be signed by the president or any vice-president and by
the secretary and any assistant secretary or any other officer or officers
designated by the board of directors. If the corporation is authorized to
issue different classes of shares or different series within a class, the
certificate may contain a summary of the designations, relative rights,
preferences and limitations applicable to each class, and the variations
in rights, preferences and limitations determined for each series and the
authority of the board of directors to determine variations for future
series. If the certificate does not include, on the front or back of such
certificate, the above summary, it must contain a conspicuous statement
that the corporation will furnish the shareholder with the above described
summary information in writing, upon request and without charge. A record
shall be kept of the name of the owner or owners of the shares represented
by each certificate, the number of shares represented by each certificate,
the date of each certificate, and in case of cancellation, the date of
cancellation. Every certificate surrendered to the corporation for
exchange or transfer shall be canceled, and no new certificate or
certificates shall be issued in exchange for any existing certificates
until the existing certificates shall have been so canceled, except in
cases provided for in Sections 8.06 and 8.07 of these bylaws.
Section 8.02. FACSIMILE SIGNATURES AND SEAL. The seal of the
corporation on any certificates for shares may be a facsimile. The
signatures of the president or vice-president and the secretary or
assistant secretary upon a certificate may be facsimiles if the
certificate is countersigned by a transfer agent, or registered by a
registrar, other than the corporation itself or an employee of the
corporation.
<PAGE>
Section 8.03. SIGNATURE BY FORMER OFFICER. If an officer who has
signed or whose facsimile signature has been placed upon any share
certificate shall have ceased to be an officer before
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the certificate is issued, the corporation may issue the certificate
with the same effect as if he or she were an officer at the date of
its issue.
Section 8.04. CONSIDERATION FOR SHARES. The corporation's shares may
be issued for such consideration as shall be fixed from time to time by
the board of directors. The consideration to be paid for shares may be
paid in whole or in part; in cash, promissory notes, or tangible or
intangible property; or in labor or services actually performed, or
contracts for services to be performed for the corporation. When the
corporation receives payment of the consideration for which shares are to
be issued, the shares shall be deemed fully paid and nonassessable by the
corporation. Prior to the issuance of shares, the board of directors
shall determine that the consideration received, or to be received, for
the shares is adequate. The board of directors' determination is
conclusive as to the adequacy of consideration for the issuance of shares
relative to whether the shares are validly issued, fully paid, and
nonassessable.
Section 8.05. TRANSFER OF SHARES. Transfers of shares in the
corporation shall be made on the corporation's books only by the
registered shareholder, by his or her legal guardian, executor, or
administrator, or by his or her attorney authorized by a power of attorney
duly executed and filed with the corporation's secretary or with a
transfer agent appointed by the board of directors, and on surrender of
the certificate or certificates for the shares. Where a share certificate
is presented to the corporation with a request to register for transfer,
the corporation shall not be liable to the owner or any other person
suffering a loss as a result of the registration of transfer if (1) there
were on or with the certificate the necessary endorsements, and (2) the
corporation had no duty to inquire into adverse claims or has discharged
the duty. The corporation may require reasonable assurance that the
endorsements are genuine and effective in compliance with such other
regulations as may be prescribed by or under the board of directors'
authority. The person in whose name shares stand on the corporation's
books shall, to the full extent permitted by law, be deemed the owner of
the shares for all purposes.
Section 8.06. RESTRICTIONS ON TRANSFER. A transfer restriction
imposed by the corporation is valid and enforceable against the holder or
a transferee of the holder if the transfer restriction is authorized by
Section 180.0627, Wisconsin Statutes. The existence of such restriction
shall be noted conspicuously on the front or back of the certificate or
contained in the information statement provided to shareholders for shares
without certificates.
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Section 8.07. LOST, DESTROYED, OR STOLEN CERTIFICATES. If an owner
claims that his or her share certificate has been lost, destroyed, or
wrongfully taken, a new certificate shall be issued in place of the
original certificate if the owner (1) so requests before the corporation
has notice that the shares have been acquired by a bona fide purchaser;
<PAGE>
(2) files with the corporation a sufficient indemnity bond (unless such
bond is waived by the board of directors); and (3) satisfies such other
reasonable requirements as may be prescribed by or under the authority of
the board of directors.
Section 8.08. STOCK REGULATIONS. The board of directors shall have
the power and authority to make all such further rules and regulations not
inconsistent with the statutes of the state of Wisconsin as they may deem
expedient concerning the issue, transfer and registration of certificates
representing shares of the corporation.
BYLAW IX. DISTRIBUTIONS
The board of directors may make distributions to its shareholders
whenever and in whatever amounts as, in the board's opinion, the
corporation's condition renders advisable in the manner and upon the terms
and conditions provided by law and its restated articles of incorporation.
BYLAW X. INDEMNIFICATION
Section 10.01. MANDATORY INDEMNIFICATION.
1. Subject to the conditions and limitations of this Bylaw X
and the corporation's restated articles of incorporation, the
corporation shall, to the fullest extent permitted by the Wisconsin
Business Corporation Law as it may then be in effect, indemnify and
hold harmless each person (and the heirs and legal representatives of
such person) who is or was a director (including a director emeritus)
or officer of the corporation, or of any other corporation or other
enterprise which is served in any capacity at the request of the
corporation (an "executive"), against any and all expenses (including,
but not limited to, fees, costs, charges, disbursements, attorneys'
fees and any other expenses (hereafter collectively referred to as
"expenses")) and liabilities (including, but not limited to, the
obligation to pay a judgment, settlement, penalty, assessment,
forfeiture or fine, including an excise tax assessed with respect to
an employee benefit plan (hereinafter collectively referred to as
"liabilities")) actually and reasonably incurred by him or her in
connection
-23-
with or which result from any threatened, pending or completed civil,
criminal, administrative or investigative action, suit, arbitration
or other proceeding (whether brought by or in the right of the
corporation or such other corporation or otherwise) (hereinafter
collectively referred to as "proceedings"), or in connection with an
appeal relating thereto, including, without limitation, proceedings
brought under and/or predicated upon the Securities Act of 1933, as
amended, and/or the Securities Exchange Act of 1934, as amended,
and/or the Investment Company Act of 1940, as amended, and/or their
respective state counterparts and/or any rule or regulation
promulgated thereunder, in which he or she may become involved, as a
party or otherwise, by reason of his or her being or having been
such executive, or by reason of any past or future action
or omission or alleged action or omission (including those antedating
the adoption of the bylaw) by him or her in such capacity, whether or
<PAGE>
not he or she continues to be such at the time such liability or
expense is incurred, either:
(i) to the extent he or she is successful on the merits or
otherwise in the defense of a proceeding, or
(ii) to the extent he or she is not successful on the
merits or otherwise in the defense of a proceeding, unless it is
determined pursuant to Section 10.02 of this bylaw that liability
was incurred because the executive breached or failed to perform
a duty he or she owed to the corporation and the breach or
failure to perform constituted:
(a) a willful failure to deal fairly with the corporation
or its shareholders in connection with a matter in which the
executive had a material conflict of interest,
(b) a violation of criminal law, unless the executive had
reasonable cause to believe his or her conduct was lawful or
no reasonable cause to believe his or her conduct was
unlawful,
(c) a transaction from which the executive derived an
improper personal profit, or
(d) willful misconduct.
2. In the event the executive is or was serving as an
executive, trustee, fiduciary, administrator, employee or agent of an
employee benefit plan sponsored by or otherwise associated with the
corporation and incurs expenses or liabilities by reason of a
proceeding having been brought,
-24-
or having been threatened, against such executive because of his or
her status as such an executive, trustee, fiduciary, administrator,
employee or agent of such plan or by reason of his or her performing
duties in any such capacities, the corporation shall indemnify and
hold harmless the executive against any and all of such expenses and
liabilities subject to the provisions of Section 10.02(1) hereof.
3. The corporation may agree to indemnify and allow reasonable
expenses for an employee or agent of the corporation who is not an
executive by general or specific action of the board of directors, or
by contract or agreement.
Section 10.02. RIGHT TO INDEMNIFICATION; HOW DETERMINED.
1. An executive's indemnification under this Bylaw X shall be
determined pursuant to one of the following means (the "authorities")
as may be selected by the executive seeking such indemnification:
(i) by a majority vote of a quorum of the board of
directors consisting of directors not at the time parties to the
same or related proceedings. If a quorum of disinterested
directors cannot be obtained, by a majority vote of a committee
duly appointed by the board of directors and consisting of two or
more directors not at the time parties to the same or related
<PAGE>
proceedings. Directors who are parties to the same or related
proceedings may participate in the designation of the members of
the committee.
(ii) by independent legal counsel mutually selected by the
executive seeking indemnification and a quorum of the board of
directors or its committee in the manner prescribed in (i) above
or, if unable to obtain such quorum or committee, by majority
vote of the full board of directors, including directors who are
parties to the same or related proceedings.
(iii) by a panel of three arbitrators selected from the
panels of arbitrators of the American Arbitration Association in
Wisconsin and consisting of one arbitrator selected by those
directors entitled under (ii) above to select independent legal
counsel, one arbitrator selected by the executive seeking
indemnification and one arbitrator selected by the two
arbitrators previously selected. Any such arbitration shall be
held in Madison, Wisconsin (or such other location mutually
acceptable to executive and the corporation) and shall be
governed by the American
-25-
Arbitration Association's then existing Commercial Arbitration
Rules and Wisconsin Law.
(iv) by a court pursuant to the Wisconsin Business
Corporation Law as it may then be in effect.
(v) by any other method provided for by the restated
articles of incorporation, contract or agreement or as otherwise
determined by the board of directors.
In any such determination there shall exist a rebuttable
presumption that the executive has met such standard(s) of conduct and
is therefore entitled to indemnification pursuant to this Bylaw X.
The burden of rebutting such presumption by clear and convincing
evidence shall be on the corporation.
The authority shall make a determination within sixty (60) days
of being selected and shall with respect to (ii) and (iii) above
simultaneously submit a written opinion of its conclusions to both the
corporation and the executive and, if the authority determines that
the executive is entitled to be indemnified for any amounts pursuant
to this Bylaw X, the corporation shall pay such amounts (net of all
amounts, if any, previously advanced to the executive pursuant to
Section 10.04), including interest thereon as provided in
Section 10.05(3) to the executive (or to such other person or entity
as he or she may designate in writing to the corporation) within ten
(10) days of receipt of such determination.
2. The determination by any authority selected above that
indemnification of an executive is required hereunder shall be
conclusively binding upon the corporation, however, any executive may,
either before or within two (2) years after a determination, if any,
has been made by the authority, petition the appropriate circuit court
of the state of Wisconsin or any other court of competent jurisdiction
to determine whether the executive is entitled to indemnification
under this Bylaw X, and such court shall thereupon have the exclusive
<PAGE>
authority to make such determination unless and until such court
dismisses or otherwise terminates such proceeding without having made
such determination.
The court shall, as petitioned, make an independent determination
of whether the executive is entitled to indemnification as provided
under this Bylaw X irrespective of any prior determination made by the
authority; provided, however, that there shall exist a rebuttable
presumption
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that the executive has met the applicable standard(s) of conduct and
is therefore entitled to indemnification pursuant to this Bylaw X.
The burden of rebutting such presumption by clear and convincing
evidence shall be on the corporation.
If the court determines that the executive is entitled to be
indemnified for any amounts pursuant to this Bylaw X, unless otherwise
ordered by such court, the corporation shall pay such amounts (net of
all amounts, if any, previously advanced to the executive pursuant to
Section 10.04, including interest thereon as provided in
Section 10.05(3)), to the executive (or to such other person or entity
as the executive may designate in writing to the corporation) within
ten (10) days of the rendering of such determination.
An executive shall pay all expenses incurred by the executive in
connection with the judicial determination provided in this
Section 10.02(2), and any subsequent appeal thereof, unless it shall
ultimately be determined by the court that he or she is entitled to be
indemnified, in whole or in part, by the corporation as authorized in
this Bylaw X.
3. Except as otherwise set forth in this Section 10.02, the
expenses associated with the indemnification process set forth in this
Section 10.02, including, without limitation, the expenses of the
authority selected hereunder, shall be paid by the corporation.
Section 10.03. TERMINATION OF A PROCEEDING IS NONCONCLUSIVE. The
termination of any proceeding, no matter by whom brought, including,
without limitation, proceedings brought under and/or predicated upon the
Securities Act of 1933, as amended, and/or the Securities Exchange Act of
1934, as amended, and/or the Investment Company Act of 1940, as amended,
and/or their respective state counterparts, and/or any rule or regulation
promulgated thereunder ("securities law proceedings"), by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the executive
has not met the applicable standard(s) of conduct set forth in
Section 10.01 of this Bylaw X.
Section 10.04. ADVANCE PAYMENT.
1. Within ten (10) days of an executive's written request, the
corporation shall advance expenses to, or where appropriate, at its
expense, undertake the defense of, an executive prior to the final
disposition thereof upon
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<PAGE>
receipt of an undertaking by or on behalf of the recipient to repay
such amount unless it shall ultimately be determined that he or she
is entitled to indemnification under this Bylaw X together with a
written affirmation of his or her good faith and belief that he or
she has not breached or failed to perform his or her duties to the
corporation.
2. In the event the corporation makes an advance of expenses to
the executive pursuant to this Section 10.04, the corporation shall be
subrogated to each and every right of recovery the executive may have
against any insurance carrier from whom the corporation has purchased
insurance for such purpose, if any.
Section 10.05. PARTIAL INDEMNIFICATION; INTEREST.
1. If it is determined pursuant to this Bylaw X that an
executive is entitled to indemnification as to some claims, issues or
matters, but not as to other claims, issues or matters, involved in
any proceeding, no matter by whom brought, including, without
limitation, securities law proceedings, the authority (or the court)
shall authorize the reasonable proration (and payment by the
corporation) of such expenses and liabilities with respect to which
indemnification is sought by the executive, among such claims, issues
or matters as the authority (or the court) shall deem appropriate in
light of all of the circumstances of such proceeding.
2. If it is determined pursuant to this Bylaw X that certain
amounts incurred by an executive are, for whatever reason,
unreasonable in amount, the authority (or the court) shall authorize
indemnification to be paid by the corporation to the executive for
only such amounts as the authority (or the court) shall deem
reasonable in light of all of the circumstances of such proceeding.
3. To the extent deemed appropriate by the authority pursuant to
this Bylaw X, or by the court before which such proceeding was
brought, interest shall be paid by the corporation to an executive, at
a reasonable interest rate, for amounts for which the corporation
indemnifies the executive.
Section 10.06. LIMITATION OF DERIVATIVE PROCEEDINGS AND RELEASE OF
DERIVATIVE CLAIMS. No proceeding shall be brought and no cause of action
shall be asserted, including, without limitation, securities law
proceedings, by or in the right of the corporation, against the executive,
his or her spouse, heirs, executors or administrators after the expiration
of two (2) years
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from the date the executive ceases, for any reason whatsoever, to serve
as an executive of the corporation and/or of an affiliate unless
asserted by the filing of an appropriate proceeding within such two-year
period.
The provisions of any federal, state or local law or statute providing
in substance that releases shall not extend to claims, demands, injuries
or damages which are unknown or unsuspected to exist at the time to the
person or entity executing such release are hereby expressly waived by the
corporation and its shareholders.
<PAGE>
Section 10.07. NONEXCLUSIVITY OF BYLAW X. The right to
indemnification provided to an executive by this Bylaw X shall not be
deemed exclusive of any other rights to indemnification or the advancement
of expenses to which he or she may be entitled under any charter
provision, contract, agreement, resolution, vote of shareholders or
disinterested directors of the corporation or otherwise, including,
without limitation, under federal law or Wisconsin Business Corporation
Law Chapter 180 as it may then be in effect, both as to acts in his or her
official capacity as such executive or other employee or agent of the
corporation or of an affiliate or as to acts in any other capacity while
holding such office or position, and the terms and provisions of this
Bylaw X shall continue as to the executive if he or she ceases to be an
executive or other employee or agent of the corporation or of an
affiliate, and such terms and provisions shall inure to the benefit of the
heirs, executors and administrators of the executive.
Section 10.08. INSURANCE.
1. The corporation may purchase and maintain insurance on behalf
of an executive, agent or employee against any liability asserted
against him or her or incurred by or on behalf of him or her in such
capacity as an executive or other employee or agent of the corporation
or of an affiliate, or arising out of his or her status as such,
whether or not the corporation would have the power to indemnify him
against such liability under the provisions of this Bylaw X or under
Wisconsin Business Corporation Law Chapter 180 as it may then be in
effect. The purchase and maintenance of such insurance shall not in
any way limit or affect the rights and obligations of the corporation
or the executive under this Bylaw X and this Bylaw X shall not in any
way limit or adversely affect the rights and obligations of the
corporation or of the other party or parties thereto under any such
policy or agreement of insurance.
2. If an executive shall receive payment from any insurance
carrier or from the plaintiff in any proceeding
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against the executive in respect of indemnified amounts after
payments on account of all or part of such indemnified amounts have
been made by the corporation pursuant to this Bylaw X, the executive
shall promptly reimburse the corporation for the amount, if any, by
which the sum of such payment by such insurance carrier or such
plaintiff exceeds such indemnified amounts from the corporation and
for any amount to which it is entitled pursuant to the following
paragraph; provided, however, that such portions, if any, of such
insurance proceeds that are required to be reimbursed to the
insurance carrier under the terms of its insurance policy, such as
deductible or co-insurance payments, shall not be deemed to be
payments to the executive hereunder.
In addition, upon payment of indemnified amounts under this
Bylaw X, the corporation shall be subrogated to an executive's rights
against any insurance carrier or any plaintiff in respect of such
indemnified amounts and the executive shall execute and deliver any
and all instruments and/or documents and perform any and all other
acts or deeds which the corporation deems necessary or advisable to
secure such rights. The executive shall do nothing to prejudice such
rights of recovery or subrogation.
<PAGE>
Section 10.09. WITNESS EXPENSES. Upon the executive's written
request, the corporation shall pay (in advance or otherwise) or reimburse
any and all expenses reasonably incurred by him or her in connection with
his or her appearance as a witness in any proceeding at a time when he or
she has not been formally named a defendant or respondent to such a
proceeding.
Section 10.10. CONTRIBUTION.
1. In the event the indemnity provided for in Section 10.01 of
this Bylaw X is unavailable to the executive for any reason
whatsoever, the corporation, in lieu of indemnifying the executive,
shall contribute to the amount reasonably incurred by or on behalf of
the executive, whether for liabilities and/or for expenses in
connection with any proceeding, no matter by whom brought, including
without limitation, securities law proceedings, in such proportion as
is deemed fair and reasonable by the authority pursuant to
Section 10.02 hereof, or by the court before which such proceeding was
brought, taking into account all of the circumstances of such
proceeding, in order to reflect:
(i) the relative benefits received by the corporation and
the executive as a result of the event(s) and/or transaction(s)
giving cause to such proceeding; and/or
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(ii) the relative fault of the corporation (and its other
executives, employees and/or agents) and the executive in
connection with such event(s) and/or transaction(s).
2. The executive shall not be entitled to contribution from the
corporation under this Section 10.10 if it is determined by the
authority pursuant to Section 10.02 hereof, or by the court before
which such proceeding was brought, that the executive, in the
performance of his or her duty to the corporation or otherwise,
violated the provisions of Section 10.01 of this Bylaw X.
3. The corporation's payment of, and the executive's right to,
contribution under this Section 10.10 shall be made and determined in
accordance with Section 10.02 hereof relating to the corporation's
payment of, and the executive's right to, indemnification under this
Bylaw X.
Section 10.11. SEVERABILITY. In the event that any provision of this
Bylaw X shall be deemed invalid or inoperative, or in the event that a
court of competent jurisdiction determines that any of the provisions of
this agreement contravene public policy, this Bylaw X shall be construed
so that the remaining provisions shall not be affected, but shall remain
in full force and effect, and any such provisions which are invalid or
inoperative or which contravene public policy shall be deemed, without
further action or deed on the part of any person, to be modified, amended
and/or limited, but only to the extent necessary to render the same valid
and enforceable, and the corporation shall indemnify the executive as to
reasonable expenses, judgments, fines and amounts incurred in settlement
with respect to any proceeding, no matter by whom brought, including
securities law proceedings, to the full extent permitted by any applicable
provision of this Bylaw X that shall not have been invalidated and to the
full extent otherwise permitted by the Wisconsin Business Corporation Law
as it may then be in effect.
<PAGE>
Section 10.12. CONTRACTUAL NATURE OF BYLAW X; REPEAL OR LIMITATION OF
RIGHTS. This Bylaw X shall be deemed to be a contract between the
corporation and each executive of the corporation and any repeal or other
limitation of this Bylaw X or any repeal or limitation of the Wisconsin
Business Corporation Law Sections 180.0850 through 180.0859 (or any other
applicable law) shall not limit any executives' rights to indemnification
then existing or arising out of events, acts or omissions occurring prior
to such repeal or limitation, including, without limitation, the right to
indemnification for proceedings commenced after such repeal or limitation
to enforce this Bylaw X
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with regard to acts, omissions or events arising prior to such repeal or
limitation.
BYLAW XI. AMENDMENTS
Section 11.01. BY SHAREHOLDERS. The shareholders may amend or repeal
these bylaws or adopt new bylaws at any annual or special shareholders'
meeting.
Section 11.02. BY DIRECTORS. The board of directors may amend or
repeal these bylaws or adopt new bylaws, but no bylaw adopted or amended
by the shareholders shall be amended or repealed by the board if the bylaw
so adopted so provides.
BYLAW XII. SEAL
The board of directors shall provide a corporate seal which shall be
circular in form and have inscribed thereon any designation including the
name of the corporation, Wisconsin as the state of incorporation, and the
words "Corporate Seal."
BYLAW XIII. FISCAL YEAR
The fiscal year of the corporation shall begin on the first day of
January and end on the last day of December in each year.
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EXHIBIT 5.1
[LETTERHEAD OF RUDER, WARE & MICHLER, A LIMITED LIABILITY S.C]
December 17, 1997
WAUSAU MOSINEE PAPER CORPORATION
1244 KRONENWETTER DR
MOSINEE WI 54455-9099
Gentlemen:
We have acted as counsel to Wausau-Mosinee Paper Corporation, a
Wisconsin corporation ("Wausau-Mosinee"), in connection with the
Registration Statement of Wausau-Mosinee on Form S-8 (the "Registration
Statement") filed on the date hereof under the Securities Act of 1933, as
amended, with respect to the shares of Wausau-Mosinee common stock to be
issued pursuant to the Mosinee Paper Corporation 1985 Executive Stock
Option Plan (the "Wausau-Mosinee Shares").
In connection with this opinion, we have examined the Registration
Statement, the articles of incorporation and bylaws of Wausau-Mosinee and
such corporate records of Wausau-Mosinee and other materials as we have
deemed necessary for the issuance of this opinion.
On the basis of such investigation, we are of the opinion that:
1. Wausau-Mosinee is a corporation duly organized and validly
existing under the laws of the State of Wisconsin with corporate
power under such laws to issue the Wausau-Mosinee Shares; and
2. Upon the issuance of the Wausau-Mosinee Shares in connection with
the Mosinee Paper Corporation 1985 Executive Stock Option Plan
(the "Plan"), all as described in the Registration Statement and
any amendments thereto, the Wausau-Mosinee Shares will have been
duly authorized and, when issued in the manner described in the
Registration Statement, and any amendments thereto, and the Plan,
and any amendments thereto, validly issued, fully paid, and non-
assessable except for the provisions of Section 180.0622(2)(b),
Wis. Stats.
<PAGE>
WAUSAU MOSINEE PAPER CORPORATION
December 17, 1997
Page 2
We hereby consent (i) to the filing of this opinion with the
Securities and Exchange Commission as an exhibit to the Registration
Statement and (ii) to the reference to our firm under the heading "Legal
Matters" in the Prospectus which constitutes a part of the Registration
Statement. In giving this consent, we do not admit that we come within
the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, or the rules and regulations of the Commission
thereunder.
Very truly yours,
RUDER, WARE & MICHLER,
A LIMITED LIABILITY S.C.
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 of Wausau-Mosinee Paper Corporation relating to the
registration of 200,000 shares of its common stock, no par value, in
connection with the Mosinee Paper Corporation 1985 Executive Stock Option
Plan (the "Plan") of our report dated September 17, 1997, appearing in
Registrant's annual report on Form 10-K for the year ended August 31,
1997.
WIPFLI ULLRICH BERTELSON LLP
December 17, 1997
Wausau, Wisconsin
