<PAGE> 1
Registration No. 333-__________
As filed with the Securities and Exchange Commission on May 1, 1996
________________________________________________________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________
WEYCO GROUP, INC.
(Exact name of registrant as specified in its charter)
WISCONSIN 39-0702200
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
234 East Reservoir Avenue
P.O. Box 1188
Milwaukee, Wisconsin 53201
(Address of Principal Executive Offices) (ZIP Code)
__________________
WEYCO GROUP, INC. 1996
NONQUALIFIED STOCK OPTION PLAN
(Full title of the plan)
___________________
Copy to:
John F. Wittkowske Kathryn M. Coates
Vice President-Finance & Secretary Quarles & Brady
WEYCO GROUP, INC. 411 East Wisconsin Avenue
234 East Reservoir Avenue Milwaukee, Wisconsin 53202
P.O. Box 1188
Milwaukee, Wisconsin 53201
(Name and address of agent for service)
(414) 263-8800
(Telephone number, including area code, of agent for service)
___________________
CALCULATION OF REGISTRATION FEE
________________________________________________________________________________
<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
TITLE OF SECURITIES MAXIMUM AGGREGATE AMOUNT OF
TO BE AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED REGISTERED(1) PER SHARE(2)(3) PRICE(3) FEE
------------------- -------------- --------------- --------- ------------
<S> <C> <C> <C> <C>
Common Stock,
$1.00 par value 100,000 shares 40.375 4,037,500 $1,393
</TABLE>
________________________________________________________________________________
(1) The Plan provides for possible adjustment of the number, price and kind
of shares covered by options granted or to be granted in the event of
certain capital or other changes affecting the Registrant's Common Stock.
This Registration Statement therefore covers, in addition to the above
stated 100,000 shares, an indeterminate number of shares that may become
subject to the Plan by means of any such adjustment.
(2) The actual offering price shall be 100% of the Fair Market Value of the
Registrant's Common Stock on the date on which an option is granted, as
determined in accordance with the terms of the Plan.
(3) Pursuant to Rule 457(h), estimated solely for the purpose of computing
the registration fee, based upon the average of the closing bid and asked
prices of the Registrant's Common Stock as reported by the NASDAQ Stock
Market on April 26, 1996.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Information specified in Part I of Form S-8 (Items 1 and 2) will be sent
or given to Plan participants as specified by Rule 428(b)(1) under the
Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by WEYCO Group, Inc. (the "Registrant")
(Commission File No. 0-9068) with the Securities and Exchange Commission (the
"Commission") pursuant to Section 13 of the Securities Exchange Act of 1934
(the "1934 Act") are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995 and the Registrant's Amendment No. 1
thereto on Form 10-K/A;
(b) The Registrant's Report by Issuer of Securities Quoted on NASDAQ
Interdealer Quotation System on Form 10-C dated January 3, 1996; and
(c) The Registrant's Current Report on Form 8-K dated June 12,
1992, including specifically the description of the Registrant's
Common Stock in Item 5 thereof, which updates the description of
the Registrant's Common Stock contained in the Registrant's
Registration Statement on Form 10, including any future amendment
or report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part hereof from
the date of the filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part hereof.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. See Item 3(c) above.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is incorporated under the Wisconsin Business Corporation
Law ("WBCL"). Under Section 180.0851(1) of the WBCL, the Registrant is
required to indemnify a director or officer, to the extent such person is
successful on the merits or otherwise in the defense of a proceeding, for all
reasonable expenses
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<PAGE> 3
incurred in the proceeding if such person was a party because he or she was a
director or officer of the Registrant. In all other cases, the Registrant is
required by Section 180.0851(2) of the WBCL to indemnify a director or officer
against liability incurred in a proceeding to which such person was a party
because he or she was an officer or director of the Registrant, unless it is
determined that he or she breached or failed to perform a duty owed to the
Registrant and the breach or failure to perform constitutes: (i) a willful
failure to deal fairly with the Registrant or its shareholders in connection
with a matter in which the director or officer has a material conflict of
interest; (ii) a violation of criminal law, unless the director or officer had
reasonable cause to believe his or her conduct was lawful or no reasonable
cause to believe his or her conduct was unlawful; (iii) a transaction from
which the director or officer derived an improper personal profit; or (iv)
willful misconduct. Section 180.0858(1) of the WBCL provides that, subject to
certain limitations, the mandatory indemnification provisions do not preclude
any additional right to indemnification or allowance of expenses that a
director or officer may have under the Registrant's articles of incorporation,
bylaws, a written agreement or a resolution of the Board of Directors or
shareholders.
Section 180.0859 of the WBCL provides that it is the public policy of the
State of Wisconsin to require or permit indemnification, allowance of expenses
and insurance to the extent required or permitted under Sections 180.0850 to
180.0858 of the WBCL for any liability incurred in connection with a proceeding
involving a federal or state statute, rule or regulation regulating the offer,
sale or purchase of securities.
Section 180.0828 of the WBCL provides that, with certain exceptions, a
director is not liable to a corporation, its shareholders, or any person
asserting rights on behalf of the corporation or its shareholders, for damages,
settlements, fees, fines, penalties or other monetary liabilities arising from
a breach of, or failure to perform, any duty resulting solely from his or her
status as a director, unless the person asserting liability proves that the
breach or failure to perform constitutes any of the four exceptions to
mandatory indemnification under Section 180.0851(2) referred to above.
Under Section 180.0833 of the WBCL, directors of the Registrant against
whom claims are asserted with respect to the declaration of an improper
dividend or other distribution to shareholders to which they assented are
entitled to contribution from other directors who assented to such distribution
and from shareholders who knowingly accepted the improper distribution, as
provided therein.
Article VIII of the Registrant's Bylaws contains provisions that generally
parallel the indemnification provisions of the WBCL and cover certain
procedural matters not dealt with in the WBCL. The Registrant is insured
against certain liabilities which it may incur by reason of Article VIII of its
Bylaws. In addition, officers and directors are insured, at the Registrant's
expense, against certain liabilities which might arise out of their employment
and which might not be subject to indemnification under the Bylaws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index following the Signatures page in this Registration
Statement, which Exhibit Index is incorporated herein by reference.
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;
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<PAGE> 4
(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;
(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)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the Registration Statement.
(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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
(h) Reference is made to the indemnification provisions referred to
in Item 6 of this Registration Statement.
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
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> 5
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 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Milwaukee, State of Wisconsin, on May 1, 1996.
WEYCO GROUP, INC.
(Registrant)
By /s/ John F. Wittkowske
----------------------------
John F. Wittkowske
Vice President-Finance
and Secretary
------------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Thomas W. Florsheim, Thomas W. Florsheim, Jr.
and John F. Wittkowske, and each of them, his true and lawful attorneys-in-fact
and agents, 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, 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 attorneys-in-fact and agents,
and each of them, full power and authority to do and perform each and every act
and thing requisite 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 attorneys-in-fact and agents or any of
them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
------------------
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.*
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C>
/s/ Thomas W. Florsheim Chairman of the Board and
----------------------------- Chief Executive Officer
Thomas W. Florsheim (Principal Executive Officer)
/s/ Thomas W. Florsheim, Jr. President and Chief Operating Officer
----------------------------- and Director
Thomas W. Florsheim, Jr.
/s/ John W. Florsheim Executive Vice President and Director
-----------------------------
John W. Florsheim
/s/ John F. Wittkowske Vice President-Finance and Secretary
----------------------------- (Principal Financial and Accounting Officer)
John F. Wittkowske
/s/ Robert Feitler Director
-----------------------------
Robert Feitler
</TABLE>
*Each of these signatures is affixed as of May 1, 1996.
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<PAGE> 6
WEYCO GROUP, INC.
(THE "REGISTRANT")
(COMMISSION FILE NO. 0-9068)
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
<TABLE>
<CAPTION>
EXHIBIT INCORPORATED HEREIN FILED
NUMBER DESCRIPTION BY REFERENCE TO HEREWITH
<S> <C> <C> <C>
4.1 Articles III and VI of the Articles of Exhibit 3.1 to the Registrant's
Incorporation of WEYCO Group, Annual Report on Form 10-K for
Inc., as restated August 29, the fiscal year ended
1961, and last amended December 31, 1990
April 25, 1990
4.2 Articles II, V, VI and X of the
Bylaws of WEYCO Group, Inc., as
revised January 21, 1991 and
amended November 3, 1992
and January 8, 1996 X
5 Opinion of Quarles & Brady X
23.1 Consent of Arthur Andersen LLP X
23.2 Consent of Quarles & Brady Contained in
Opinion filed
as Exhibit 5
24 Powers of Attorney Signatures Page
to this
Registration Statement
29 WEYCO Group, Inc. Exhibit 10.12 to the
1996 Nonqualified Registrant's Annual Report
Stock Option Plan on Form 10-K for the fiscal
year ended December 31, 1995
</TABLE>
EI-1
<PAGE> 1
Exhibit 4.2
BYLAWS
of
WEYCO GROUP, INC.
ADOPTED
January 21, 1991
as amended November 3, 1992
and January 8, 1996
<PAGE> 2
ARTICLE I. OFFICES; RECORDS
1.01. Principal and Business Offices. The corporation may have such
principal and other business offices, either within or without the State of
Wisconsin, as the Board of Directors may designate or as the business of the
corporation may require from time to time.
1.02. Registered Office and Registered Agent. The registered
office of the corporation required by the Wisconsin Business Corporation Law to
be maintained in the State of Wisconsin may be, but need not be, identical with
the principal office in the State of Wisconsin. The address of the registered
office may be changed from time to time by any officer or by the registered
agent. The business office of the registered agent of the corporation shall be
identical to such registered office.
1.03. Corporate Records. The following records shall be kept at the
corporation's principal office or at such other reasonable location as may be
specified by the corporation:
(a) Minutes of shareholders' and board of directors' meetings
and any written notices thereof.
(b) Records of actions taken by the shareholders or directors
without a meeting.
(c) Records of actions taken by committees of the board of
directors.
(d) Accounting records.
(e) Records of its shareholders.
ARTICLE II. SHAREHOLDERS
2.01. Annual Meeting. The annual meeting of the shareholders shall
be held on the fourth Tuesday in April of each year at 10:00 AM, or at such
other time and date as may be fixed by or under the authority of the Board of
Directors, for the purpose of electing directors and for the transaction of
such other business as may come before the meeting. If the day fixed for the
annual meeting is a legal holiday in the State of Wisconsin, such meeting shall
be held on the next succeeding business day. If the election of directors is
not held on the day designated herein, or fixed as herein provided, for any
annual meeting of the shareholders, or at any
<PAGE> 3
adjournment thereof, the Board of Directors shall cause the election to be held
at a special meeting of the shareholders as soon thereafter as may be
convenient.
2.02. Special Meetings. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by statute, may be called
by the President or the Board of Directors. If and as required by the Wisconsin
Business Corporation Law, a special meeting shall be called upon written demand
describing one or more purposes for which it is to be held by holders of shares
with at least 10% of the votes entitled to be cast on any issue proposed to be
considered at the meeting. The purpose or purposes of any special meeting
shall be described in the notice required by Section 2.04 of these Bylaws.
2.03. Place of Meeting. The Board of Directors may designate any
place, either within or without the State of Wisconsin, as the place of meeting
for any annual meeting or any special meeting. If no designation is made, the
place of meeting shall be the principal business office of the corporation but
any meeting may be adjourned to reconvene at any place designated by vote of a
majority of the shares represented thereat.
2.04. Notices to Shareholders. (a) Required Notice. Written notice
stating the place, day and hour of the meeting and, in case of a special
meeting, the purpose or purposes for which the meeting is called, shall be
delivered not less than ten (10) days nor more than sixty (60) days before the
date of the meeting (unless a different time is provided by law or the Articles
of Incorporation), by or at the direction of the President or the Secretary, to
each shareholder entitled to vote at such meeting or, if the Wisconsin Business
Corporation Law requires that notice be given to shareholders not entitled to
vote, to all shareholders. If mailed, such notice is effective when deposited
in the United States mail, and shall be addressed to the shareholder's address
shown in the current record of shareholders of the corporation, with postage
thereon prepaid. At least twenty (20) days' notice shall be provided if the
purpose, or one of the purposes, of the meeting is to consider a plan of merger
or share exchange or the sale, lease, exchange or other disposition of all or
substantially all of the corporation's property, with or without good will,
otherwise than in the usual and regular course of business.
(b) Adjourned Meeting. Except as provided in the next sentence,
if any shareholder meeting is adjourned to a different date, time, or place,
notice need not be given of the new date, time, and place, if the new date,
time, and place is announced at the meeting before adjournment. If a new
record date for the adjourned meeting is or must be fixed, then notice must be
given pursuant to the requirements of paragraph (a) of this Section 2.04, to
those persons
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who are shareholders as of the new record date.
(c) Waiver of Notice. A shareholder may waive notice in
accordance with Article VI of these Bylaws.
(d) Contents of Notice. The notice of each special shareholder
meeting shall include a description of the purpose or purposes for which the
meeting is called. Except as otherwise provided in this section 2.04(d),
or as provided in the Articles of Incorporation, or otherwise in the Wisconsin
Business Corporation Law, the notice of an annual shareholder meeting need not
include a description of the purpose or purposes for which the meeting is
called.
(e) Fundamental Transactions. If a purpose of any shareholder
meeting is to consider either: (l) a proposed amendment to the Articles of
Incorporation (including any restated articles); (2) a plan of merger or share
exchange; (3) the sale, lease, exchange or other disposition of all or
substantially all of the corporation's property, with or without good will,
otherwise than in the usual and regular course of business; (4) the dissolution
of the corporation; or (5) the removal of a director, the notice must so state
and in cases (1), (2) and (3) above must be accompanied by, respectively, a
copy or summary of the: (1) proposed articles of amendment; (2) proposed plan
of merger or share exchange; or (3) proposed transaction for disposition of all
or substantially all of the corporation's property. If the proposed corporate
action creates dissenters' rights, the notice must state that shareholders and
beneficial shareholders are or may be entitled to assert dissenters' rights,
and must be accompanied by a copy of Sections 180.1301 to 180.1331 of the
Wisconsin Business Corporation Law.
(f) Certain Stock Issuances. If the corporation issues or
authorizes the issuance of shares for promissory notes or for promises of
future services, the corporation shall report in writing to the shareholders
entitled to receive notice of the next shareholder meeting, with or before the
notice of that meeting, the number of shares authorized or issued, and the
consideration received or to be received by the corporation.
(g) Indemnification; Advance of Expenses. If the corporation
indemnifies or advances expenses to a director or officer under Sections
180.0850 et seq. of the Wisconsin Business Corporation Law in connection
with a proceeding by or in the right of the corporation, this shall be reported
to shareholders entitled to receive notice of the next shareholder meeting with
or before the notice of that meeting.
2.05. Fixing of Record Date. The Board of Directors may fix in
advance a date as the record date for one or more voting groups for
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<PAGE> 5
any determination of shareholders entitled to notice of a shareholder meeting,
to demand a special meeting, to vote, or to take any other action, such date in
any case to be not more than seventy (70) days prior to the meeting or action
requiring such determination of shareholders, and may fix the record date for
determining shareholders entitled to a share dividend or distribution. If no
record date is fixed for the determination of shareholders entitled to demand a
shareholder meeting, to notice of or to vote at a meeting of shareholders, or
to consent to action without a meeting, (a) the close of business on the day
before the corporation receives the first written demand for a shareholder
meeting, (b) the close of business on the day before the first notice of the
meeting is mailed or otherwise delivered to shareholders, or (c) the close of
business on the day before the first written consent to shareholder action
without a meeting is received by the corporation, as the case may be, shall be
the record date for the determination of shareholders. If no record date is
fixed for the determination of shareholders entitled to receive a share
dividend or distribution (other than a distribution involving a purchase,
redemption or other acquisition of the corporation's shares), the close of
business on the day on which the resolution of the Board of Directors is
adopted declaring the dividend or distribution shall be the record date. When
a determination of shareholders entitled to vote at any meeting of shareholders
has been made as provided in this section, such determination shall be applied
to any adjournment thereof unless the Board of Directors fixes a new record
date and except as otherwise required by law. A new record date must be set if
a meeting is adjourned to a date more than 120 days after the date fixed for
the original meeting.
2.06. Shareholder List. The officer or agent having charge of the
stock transfer books for shares of the corporation shall, before each meeting of
shareholders, make a complete record of the shareholders entitled to notice of
such meeting, arranged by class or series of shares and showing the address of
and the number of shares held by each shareholder. The shareholder list shall
be available at the meeting and may be inspected by any shareholder or his or
her agent or attorney at any time during the meeting or any adjournment. Any
shareholder or his or her agent or attorney may inspect the shareholder list
beginning two (2) business days after the notice of the meeting is given and
continuing to the date of the meeting, at the corporation's principal office or
at a place identified in the meeting notice in the city where the meeting will
be held and, subject to Section 180.1602(2)(b) 3 to 5 of the Wisconsin Business
Corporation Law, may copy the 1 st, during regular business hours and at his or
her expense, during the period that it is available for inspection hereunder.
The original stock transfer books and nominee certificates on file with the
corporation (if any) shall be prima facie evidence as to who are the
shareholders entitled to inspect the shareholder list or to vote at any meeting
of shareholders. Failure to comply with the requirements of this section
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<PAGE> 6
shall not affect the validity of any action taken at such meeting.
2.07. Quorum and Voting Requirements. Except as otherwise provided
in the Articles of Incorporation, a majority of the votes entitled to be cast by
shares entitled to vote as a separate voting group on a matter, represented in
person or by proxy, shall constitute a quorum of that voting group for action
on that matter at a meeting of shareholders. If a quorum exists, action on a
matter, other than the election of directors, by a voting group is approved if
the votes cast within the voting group favoring the action exceed the votes
opposing the action unless a greater number of affirmative votes is required by
the Wisconsin Business Corporation Law or the Articles of Incorporation. If
the Articles of Incorporation or the Wisconsin Business Corporation Law provide
for voting by two or more voting groups on a matter, action on that matter is
taken only when voted upon by each of those voting groups counted separately.
Action may be taken by one voting group on a matter even though no action is
taken by another voting group entitled to vote on the matter. Once a share is
represented for any purpose at a meeting, other than for the purpose of
objecting to holding the meeting or transacting business at the meeting, it is
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 meeting.
2.08. Conduct of Meetings. The Chairman of the Board, and in the
absence of the Chairman of the Board, the President, and in the President's
absence, a Vice President in the order provided under Section 4.05 of
these Bylaws, and in their absence, any person chosen by the shareholders
present shall call the meeting of the shareholders to order and shall act as
chair of the meeting, and the Secretary shall act as secretary of all meetings
of the shareholders, but, in the absence of the Secretary, the presiding
officer may appoint any other person to act as secretary of the meeting.
2.09. Proxies. At all meetings of shareholders, a shareholder
entitled to vote may vote in person or by proxy appointed in writing by the
shareholder or by his or her duly authorized attorney-in-fact. All proxy
appointment forms shall be filed with the Secretary or other officer or
agent of the corporation authorized to tabulate votes before or at the time of
the meeting. Unless the appointment form conspicuously states that it is
irrevocable and the appointment is coupled with an interest, a proxy
appointment may be revoked at any time. The presence of a shareholder who has
filed a proxy appointment shall not of itself constitute a revocation. No
proxy appointment shall be valid after eleven months from the date of its
execution, unless otherwise expressly provided in the appointment form. The
Board of Directors shall have the power and authority to make rules as to the
validity and sufficiency of proxy appointments.
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<PAGE> 7
2.10. Voting of Shares. Each outstanding share which is entitled
to vote shall be entitled to vote on each matter submitted to a vote of
shareholders in accordance with the provisions of Article III of the Articles
of Incorporation of this corporation. Shares owned directly or indirectly by
another corporation are not entitled to vote if this corporation owns, directly
or indirectly, sufficient shares to elect a majority of the directors of such
other corporation. However, the prior sentence shall not limit the power of
the corporation to vote any shares, including its own shares, held by it in a
fiduciary capacity. Redeemable shares are not entitled to vote after notice of
redemption is mailed to the holders and a sum sufficient to redeem the shares
has been deposited with a bank, trust company, or other financial institution
under an irrevocable obligation to pay the holders the redemption price on
surrender of the shares.
ARTICLE III. BOARD OF DIRECTORS
3.01. General Powers and Number. The business and affairs of the
corporation shall be managed by its Board of Directors. The number of
directors of the corporation shall be seven (7) and shall be divided into three
classes, as nearly equal in number as possible. The terms of the directors
shall be staggered such that a group consisting of approximately one-third
(1/3) of the directors shall have terms that expire at the first annual
shareholders meeting after their election, a second group consisting of
approximately one-third (1/3) of the directors shall have terms that expire at
the second annual shareholders meeting after their election, and the terms of
the remaining directors shall expire at the third annual shareholders meeting
after their election. At each annual shareholders meeting held thereafter, the
number of directors equal to the number of the group whose term expires at the
time of the meeting shall be chosen for a term of three years. The number of
directors may be increased or decreased from time to time by amendment to this
Section adopted by the shareholders or the Board of Directors, but no decrease
shall have the effect of shortening the term of an incumbent director.
3.02. Tenure and Qualifications. Each director shall be elected by a
plurality of the votes cast by the shares entitled to vote in the election at a
shareholders meeting at which a quorum is present; i.e., the individuals with
the largest number of votes are elected as directors up to the maximum number
of directors to be chosen in the election. In the event two or more persons
tie for the last vacancy to be filled, a run-off vote shall be taken from among
the candidates receiving the tie vote. Each director shall hold office for the
remainder of the term for which he or she has been elected and until the
director's successor shall have been elected, or until his or her prior death,
resignation or removal. Any director or
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directors may be removed from office by the shareholders, but only for cause,
if the votes cast to remove the director exceeds the number cast not to remove
him or her, taken at a meeting of shareholders called for that purpose,
provided that the meeting notice states that the purpose, or one of the
purposes, of the meeting is removal of the director. A director may resign at
any time by delivering a written resignation to the Board of Directors, its
chairperson, or the Secretary of the corporation. Directors need not be
residents of the State of Wisconsin or shareholders of the corporation.
3.03. Regular Meetings. A regular meeting of the Board of Directors
shall be held, without other notice than this Bylaw, immediately after the
annual meeting of shareholders, and each adjourned session thereof. The place
of such regular meeting shall be the same as the place of the meeting of
shareholders which precedes it, or such other suitable place as may be
announced at such meeting of shareholders. The Board of Directors may provide,
by resolution, the time and place, either within or without the State of
Wisconsin, for the holding of additional regular meetings without other notice
than such resolution.
3.04. Special Meetings. Special meetings of the Board of Directors
may be called by or at the request of the President or any two directors. The
persons calling any special meeting of the Board of Directors may fix any
place, either within or without the State of Wisconsin, as the place for
holding any special meeting of the Board of Directors called by them, and if no
other place is fixed the place of meeting shall be the principal business
office of the corporation in the State of Wisconsin.
3.05. Meetings By Telephone or Other Communication Technology. (a)
Any or all directors may participate in a regular or special meeting or in a
committee meeting of the Board of Directors by, or conduct the meeting through
the use of, telephone or any other means of communication by which either: (i)
all participating directors may simultaneously hear each other during the
meeting or (ii) all communication during the meeting is immediately transmitted
to each participating director, and each participating director is able to
immediately send messages to all other participating directors.
(b) If a meeting will be conducted through the use of any means
described in paragraph (a), all participating directors shall be informed that
a meeting is taking place at which official business may be transacted.
A director participating in a meeting by any means described in paragraph (a)
is deemed to be present in person at the meeting.
(c) The identity of each director participating in a
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meeting of the Board of Directors or a committee thereof by any means described
in paragraph (a) must be verified before the directors vote at the meeting (i)
on a plan of merger or share exchange; (ii) to sell, lease, exchange or
otherwise dispose of substantial property or assets of the corporation; (iii)
to voluntarily dissolve the corporation or to revoke voluntary dissolution
proceedings; or (iv) to file for bankruptcy. The procedure for verifying a
director's identity shall be by disclosure by the director of a confidential
Director Identification Number assigned to such director in advance of the
meeting by the Secretary which is provided confidentially to the director with
the notice of the meeting or otherwise. A transaction within the meaning of
subpart (ii) of this paragraph (c) shall be one which involves the sale, lease,
exchange or other disposition of more than fifty percent (50%) in value of the
corporation's assets to a person other than a subsidiary of the corporation.
3.06. Notice of Meetings. Except as otherwise provided in the
Articles of Incorporation or the Wisconsin Business Corporation Law, notice of
the date, time and place of any special meeting of the Board of Directors and
of any meeting of a committee of the Board shall be given orally or in writing
to each director or committee member at least 48 hours prior to the meeting,
except that notice by mail shall be given at least 72 hours prior to the
meeting. The notice need not describe the purpose of or the business to be
transacted at the meeting. Notice may be communicated in person, by telephone,
telegraph or facsimile, or by mail or private carrier. Oral notice is
effective when communicated. Written notice is effective ag follows: If
delivered in person, when received; if given by mail, when deposited, postage
prepaid, in the United States mail addressed to the director at his or her
business or home address (or such other address as the director may have
designated in writing filed with the Secretary); if given by facsimile, at the
time transmitted to a facsimile number at any address designated above; and if
given by telegraph, when delivered to the telegraph company.
3.07. Quorum. Except as otherwise provided by the Wisconsin Business
Corporation Law, a majority of the number of directors as provided in Section
3.01 shall constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
3.08. Manner of Acting. Except as otherwise provided by the
Wisconsin Business Corporation Law, the affirmative vote 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 vote of a greater number is required
by the Wisconsin Business Corporation Law, or the Articles of Incorporation.
3.09. Conduct of Meetings. The President, and in the President's
absence, a Vice President in the order provided under Section 4.05 of these
Bylaws, and in their absence, any director
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chosen by the directors present, shall call meetings of the Board of Directors
to order and shall chair the meeting. The Secretary of the corporation shall
act as secretary of all meetings of the Board of Directors, but in the absence
of the Secretary, the presiding officer may appoint any assistant secretary or
any director or other person present to act as secretary of the meeting.
3.10. Vacancies. Any vacancy occurring in the Board of Directors,
including a vacancy created by an increase in the number of directors, may be
filled for the remainder of the term by the shareholders or the Board of
Directors. If the directors remaining in office constitute fewer than a quorum
of the Board, the directors may fill a vacancy by the affirmative vote of a
majority of all directors remaining in office. A vacancy that will occur at a
specific later date (because of a resignation effective at a later date or
otherwise) may be filled before the vacancy occurs, but the new director may
not take office until the vacancy occurs.
3.11. Compensation. The Board of Directors, irrespective of any
personal interest of any of its members, may fix the compensation of directors.
3.12. Presumption of Assent. A director who is present and is
announced as present at a meeting of the Board of Directors or a committee
thereof at which action on any corporate matter is taken shall be presumed to
have assented to the action taken unless (i) the director objects at the
beginning of the meeting or promptly upon his or her arrival to holding the
meeting or transacting business at the meeting, or (ii) the director's dissent
or abstention from the action taken is entered in the minutes of the meeting,
or (iii) the director delivers his or her written dissent or abstention to the
presiding officer of the meeting before the adjournment thereof or to the
corporation immediately after the adjournment of the meeting. Such right to
dissent or abstain shall not apply to a director who voted in favor of such
action.
3.13. Committees. The Board of Directors, by resolution adopted by
the affirmative vote of a majority of the number of directors as provided in
Section 3.01, may designate one or more committees, each committee to consist
of two or more directors as members, which to the extent provided in the
resolution as initially adopted, and as thereafter supplemented or amended by
further resolution adopted by a like vote, shall have and may exercise, the
authority of the Board of Directors, except that no committee may; (a)
authorize distributions; (b) approve or propose to shareholders action that
must be approved by shareholders; (c) fill vacancies on the Board of Directors
or any of its committees, except that the Board of Directors may provide by
resolution that any vacancies on a committee shall be filled by the affirmative
vote of a majority of the remaining committee members; (d) amend the Articles
of Incorporation; (e) adopt,
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amend or repeal Bylaws; (f) approve a plan of merger; (g) authorize or approve
reacquisition of shares, except according to a formula or method prescribed by
the Board of Directors; or (h) authorize or approve the issuance or sale or
contract for sale of shares, or determine the designation and relative rights,
preferences and limitations of a class or series of shares, except within
limits prescribed by the Board of Directors. The Board of Directors may elect
one or more of its members as alternate members of any such committee who may
take the place of any absent member or members at any meeting of such
committee, upon request of the Chairman of the Board or the President or upon
request by the chairman of such meeting. Each such committee shall fix its own
rules governing the conduct of its activities and shall make such reports to
the Board of Directors of its activities as the Board of Directors may request.
Unless otherwise provided by the Board of Directors in creating a committee, a
committee may employ counsel, accountants and other consultants to assist it in
the exercise of authority. The creation of a committee, delegation of
authority to a committee or action by a committee does not relieve the Board of
Directors or any of its members of any responsibility imposed on the Board of
Directors or its members by law.
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ARTICLE IV. OFFICERS
4.01. Appointment. The officers shall include a Chairman of the
Board, a President, one or more Vice Presidents (the number and designations to
be determined by the Board of Directors), a Secretary and such other
officers if any, as may be deemed necessary by the Board of Directors, each of
whom shall be appointed by the Board of Directors. Any two or more offices may
be held by the same person.
4.02. Resignation and Removal. An officer or assistant officer
shall hold office until he or she resigns, dies, is removed hereunder, or a
different person is appointed to the office. An officer or assistant officer
may resign at any time by delivering an appropriate written notice to the
corporation. The resignation is effective when the notice is delivered,
unless the notice specifies a later effective date and the corporation accepts
the later effective date. Any officer, assistant officer or agent may be
removed by the Board of Directors with or without cause, but such removal shall
be without prejudice to the contract rights, if any, of the officer or
assistant officer so removed and the corporation. Appointment shall not of
itself create contract rights.
4.03. Vacancies. A vacancy in any office because of death,
resignation, removal or otherwise, shall be filled by the Board of Directors.
If a resignation is effective at a later date, the Board of Directors may
fill the vacancy before the effective date if the Board of Directors provides
that the successor may not take office until the effective date.
4.04. Chief Executive Officer. The Board of Directors may elect a
Chairman of the Board and shall elect a President. The Board of Directors
shall designate one of them as Chief Executive Officer.
In the event that there are both a Chairman and a President, and
the Chairman is designated as Chief Executive Officer, then the President shall
perform such duties as the Chief Executive Officer may prescribe. If there is
a Chairman he shall preside at all meetings of the shareholders and of the
Board of Directors; in the absence of a Chairman the President shall preside at
such meetings.
The Chief Executive Officer shall supervise and control all of
the business and affairs of the corporation and shall perform such other duties
as may be prescribed by the Board of Directors from time to time. The Chief
Executive Officer shall have authority, subject to such rules as may be
prescribed by the Board of Directors, to appoint such agents and employees of
the corporation as he or she shall deem necessary, to prescribe their powers,
duties and compensation, and to delegate authority to them. Such agents and
employees shall hold office at the discretion of the Chief Executive Officer.
The Chief Executive Officer shall have authority to sign,
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execute and acknowledge, on behalf of the corporation, all deeds, mortgages,
bonds, stock certificates, contracts, leases, reports and all other documents
or instruments necessary or proper to be executed in the course of the
corporation's regular business, or which shall be authorized by resolution of
the Board of Directors; and, except as otherwise provided by law or the Board
of Directors, the Chief Executive Officer may authorize the President or any
Vice President or other officer or agent of the corporation to sign, execute
and acknowledge such documents or instruments in his or her place and stead.
4.05. Vice Presidents. In the absence of the Chairman of the Board,
and the President, or in the event of their inability or refusal to act, or in
the event for any reason it shall be impractical for the Chairman or the
President to act personally, a Vice President (or in the event there be more
than one Vice President, the Vice Presidents in the order designated by the
Board of Directors, or in the absence of any designation, then in the
order of their election) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions
upon the President. Any Vice President may sign, with the Secretary or
Assistant Secretary, certificates for shares of the corporation; and shall
perform such other duties and have such authority as from time to time may be
delegated or assigned to him or her by the President or 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 the Vice President's authority
to act in the stead of the President.
4.06. Secretary. The Secretary shall: (a) keep (or cause to be kept)
regular minutes of all meetings of the shareholders, the Board of Directors and
any committees of the Board of Directors in one or more books provided for that
purpose; (b) see that all notices are duly given in accordance with the
provisions of these Bylaws or as required by law; (c) be custodian of the
corporate records and of the seal of the corporation, if any, and see that the
seal of the corporation, if any, is affixed to all documents which are
authorized to be executed on behalf of the corporation under its seal; (d) keep
or arrange for the keeping of a register of the post office address of each
shareholder which shall be furnished to the Secretary by such shareholder; (e)
sign with the President, or a Vice President, certificates for shares of the
corporation, the issuance of which shall have been authorized by resolution of
the Board of Directors; (f) have general charge of the stock transfer books of
the corporation; and (g) in general perform all duties incident to the office
of Secretary and have such other duties and exercise such authority ag from
time to time may be delegated or assigned to him or her by the President or by
the Board of Directors.
4.07. Treasurer. If the Board of Directors appoints a Treasurer, the
Treasurer shall: (a) have charge and custody of and be
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responsible for all funds and securities of the corporation; (b) receive and
give receipts for moneys due and payable to the corporation from any source
whatsoever, and deposit all such moneys in the name of the corporation in such
banks, trust companies or other depositaries as shall be selected by the
corporation; and (c) in general perform all of the duties incident to the
office of Treasurer and have such other duties and exercise such other
authority as from time to time may be delegated or assigned to him or her by
the President or by the Board of Directors.
4.08. Assistants and Acting Officers. The Board of Directors and the
Chief Executive Officer shall have the power to appoint any person to act ag
assistant to any officer, or as agent for the corporation in the officer's
stead, or to perform the duties of such officer whenever for any reason it is
impracticable for such officer to act personally, and such assistant or acting
officer or other agent so appointed by the Board of Directors or Chief
Executive Officer shall have the power to perform all the duties of the office
to which that person is so appointed to be assistant, or as to which he or she
is so appointed to act, except as such power may be otherwise defined or
restricted by the Board of Directors or the Chief Executive Officer.
4.09. Salaries. The salaries of the principal officers shall be
fixed from time to time by the Board of Directors or by a duly authorized
committee thereof, and no officer shall be prevented from receiving such salary
by reason of the fact that such officer is also a director of the corporation.
ARTICLE V. CERTIFICATES FOR SHARES AND THEIR TRANSFER
5.01. Certificates For Shares. All shares of this corporation
shall be represented by certificates. Certificates representing shares of the
corporation shall be in such form, consistent with law, as shall be determined
by the Board of Directors. At a minimum, a share certificate shall state on
its face the name of the issuing corporation and that it is organized under the
laws of the State of Wisconsin, the name of the person to whom issued, and the
number and class of shares and the designation of the series, if any, that the
certificate represents. If the corporation is authorized to issue different
classes of shares or different series within a class, the front or back of the
certificate must contain either (a) a summary of the designations, relative
rights, preferences and limitations applicable to each class, and the
variations in the rights, preferences and limitations determined for each
series and the authority of the Board of Directors to determine the variations
for future series, or (b) a conspicuous statement that the corporation will
furnish the shareholder the information in clause (a) on request,
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in writing and without charge. Such certificates shall be signed, either
manually or in facsimile, by the Chairman, President or a Vice President and by
the Secretary or an Assistant Secretary. All certificates for shares shall be
consecutively numbered or otherwise identified. The name and address of the
person to whom the shares represented thereby are issued, with the number of
shares and date of issue, shall be entered on the stock transfer books of the
corporation. All certificates surrendered to the corporation for transfer
shall be cancelled and no new certificate shall be issued until the former
certificate for a like number of shares shall have been surrendered and
cancelled, except as provided in Section 5.05.
5.02. Signature by Former Officers. If an officer or assistant
officer, who has signed or whose facsimile signature has been placed upon any
certificate for shares, has ceased to be such officer or assistant officer
before such certificate is issued, the certificate may be issued by the
corporation with the same effect as if that person were still an officer or
assistant officer at the date of its issue.
5.03. Transfer of Shares. Prior to due presentment of a
certificate for shares for registration of transfer, and unless the corporation
has established a procedure by which a beneficial owner of shares held by a
nominee is to be recognized by the corporation as the shareholder, the
corporation may treat the registered owner of such shares as the person
exclusively entitled to vote, to receive notifications and otherwise to have
and exercise all the rights and power of an owner. The corporation may require
reasonable assurance that all transfer endorsements are genuine and effective
and in compliance with all regulations prescribed by or under the authority of
the Board of Directors.
5.04. Restrictions on Transfer. The face or reverse side of each
certificate representing shares shall bear a conspicuous notation of any
restriction upon the transfer of such shares imposed by the corporation or
imposed by any agreement of which the corporation has written notice.
5.05. Lost, Destroyed or Stolen Certificates. Where the owner claims
that his or her certificate for shares has been lost, destroyed or wrongfully
taken, a new certificate shall be issued in place thereof if the owner (a) so
requests before the corporation has notice that such shares have been acquired
by a bona fide purchaser, and (b) if required by the corporation, files with
the corporation a sufficient indemnity bond, and (c) satisfies such other
reasonable requirements as may be prescribed by or under the authority of the
Board of Directors.
5.06. Consideration for Shares. The shares of the
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corporation may be issued for such consideration as shall be fixed from time to
time and determined to be adequate by the Board of Directors, provided that any
shares having a par value shall not be issued for a consideration less than the
par value thereof. The consideration may consist of any tangible or intangible
property or benefit to the corporation, including cash, promissory notes,
services performed, contracts for services to be performed, or other securities
of the corporation. If the corporation issues or authorizes the issuance of
shares for promissory notes or for promises of future services, it shall report
to the shareholders in accordance with Section 2.04(f) of these Bylaws the
number of shares authorized or issued and the consideration received or to be
received by the corporation. When the corporation receives the consideration
for which the Board of Directors authorized the issuance of shares, such shares
shall be deemed to be fully paid and nonassessable by the corporation.
5.07. Stock Regulations. The Board of Directors shall have the
power and authority to make all such rules and regulations not inconsistent
with the statutes of the State of Wisconsin as it may deem expedient concerning
the issue, transfer and registration of certificates representing shares of
the corporation.
ARTICLE VI WAIVER OF NOTICE
6.01. Shareholder Written Waiver. A shareholder may waive any
notice required by the Wisconsin Business Corporation Law, the Articles of
Incorporation or these Bylaws before or after the date and time stated in the
notice. The waiver shall be in writing and signed by the shareholder entitled
to the notice, shall contain the same information that would have been required
in the notice under the Wisconsin Business Corporation Law except that the time
and place of meeting need not be stated, and shall be delivered to the
corporation for inclusion in the corporate records.
6.02. Shareholder Waiver by Attendance. A shareholder's attendance
at a meeting, in person or by proxy, waives objection to both of the following:
(a) Lack of notice or defective notice of the meeting, unless
the shareholder at the beginning of the meeting or promptly upon
arrival objects to holding the meeting or transacting business at
the meeting.
(b) Consideration of a particular matter at the meeting that is
not within the purpose described in the meeting notice, unless the
shareholder objects to considering the matter when it is presented.
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6.03. Director Written Waiver. A director may waive any notice
required by the Wisconsin Business Corporation Law, the Articles of
Incorporation or the Bylaws before or after the date and time stated in the
notice. The waiver shall be in writing, signed by the director entitled to
the notice and retained by the corporation.
6.04. Director Waiver by Attendance. A director's attendance at or
participation in a meeting of the Board of Directors or any committee thereof
waives any required notice to him or her of the meeting unless the director at
the beginning of the meeting or promptly upon his or her 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.
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ARTICLE VII ACTION WITHOUT MEETINGS
7.01. Director Action Without Meeting. Unless the Articles of
Incorporation provide otherwise, action required or permitted by the Wisconsin
Business Corporation Law to be taken at a Board of Directors meeting or
committee meeting may be taken without a meeting if the action is taken by all
members of the Board or committee. The action shall be evidenced by one or
more written consents describing the action taken, signed by each director and
retained by the corporation. Action taken hereunder is effective when the last
director signs the consent, unless the consent specifies a different effective
date. A consent signed hereunder has the effect of a unanimous vote taken at a
meeting at which all directors or committee members were present, and may be
described as such in any document.
ARTICLE VIII INDEMNIFICATION
8.01. Indemnification for Successful Defense. Within 20 days after
receipt of a written request pursuant to Section 8.03, the corporation shall
indemnify a director or officer, to the extent he or she has been successful on
the merits or otherwise in the defense of a proceeding, for all reasonable
expenses incurred in the proceeding if the director or officer was a party
because he or she is a director or officer of the corporation.
8.02. Other Indemnification.
(a) In cases not included under Section 8.01, the corporation
shall indemnify a director or officer against all liabilities and
expenses incurred by the director or officer in a proceeding to
which the director or officer was a party because he or she is a
director or officer of the corporation, unless liability was
incurred because the director or officer breached or failed to
perform a duty he or she owes to the corporation and the breach or
failure to perform constitutes any of the following:
(1) A willful failure to deal fairly with the corporation
or its shareholders in connection with a matter in which the
director or officer has a material conflict of interest.
(2) A violation of criminal law, unless the director or
officer had reasonable cause to believe his or her conduct was
lawful or no reasonable cause to believe his or her conduct
was unlawful.
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(3) A transaction from which the director or officer
derived an improper personal profit.
(4) Wilful misconduct.
(b) Determination of whether indemnification is required under
this Section shall be made pursuant to Section 8.05.
(c) The termination of a proceeding by judgment, order,
settlement or conviction, or upon a plea of no contest or an
equivalent plea, does not, by itself, create a presumption that
indemnification of the director or officer is not required under
this Section.
8.03. Written Request. A director or officer who seeks
indemnification under Sections 8.01 or 8.02 shall make a written request to
the corporation.
8.04. Nonduplication. The corporation shall not indemnify a
director or officer under Sections 8.01 or 8.02 if the director or officer has
previously received indemnification or allowance of expenses from any
person, including the corporation, in connection with the same proceeding.
However, the director or officer has no duty to look to any other person for
indemnification.
8.05. Determination of Right to Indemnification.
(a) Unless otherwise provided by the Articles of Incorporation
or by written agreement between the director or officer and the
corporation, the director or officer seeking indemnification under
Section 8.02 shall select one of the following means for determining
his or her right to indemnification:
(1) By a majority vote of a quorum of the board of
directors consisting of directors not at the time parties to
the same or related proceedings. If a quorum of disinterested
directors cannot be obtained, by majority vote of a committee
duly appointed by the board of directors and consisting solely
of 2 or more directors who are not at the time parties to the
same or related proceedings. Directors who are parties to the
same or related proceedings may participate in the designation
of members of the committee.
(2) By independent legal counsel selected by a quorum of
the board of directors or its committee in the manner
prescribed in sub. (l) or, if unable to obtain such a quorum
or committee, by a majority vote
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of the full board of directors, including directors who are
parties to the same or related proceedings.
(3) By a panel of 3 arbitrators consisting of one
arbitrator selected by those directors entitled under sub. (2)
to select independent legal counsel, one arbitrator selected
by the director or officer seeking indemnification and one
arbitrator selected by the 2 arbitrators previously selected.
(4) By an affirmative vote of shares represented at a
meeting of shareholders at which a quorum of the voting group
entitled to vote thereon is present. Shares owned by, or
voted under the control of, persons who are at the time
parties to the same or related proceedings, whether as
plaintiffs or defendants or in any other capacity, may not be
voted in making the determination.
(5) By a court under Section 8.08.
(6) By any other method provided for in any additional
right to indemnification permitted under Section 8.07.
(b) In any determination under (a), the burden of proof is on
the corporation to prove by clear and convincing evidence that
indemnification under Section 8.02 should not be allowed.
(c) A written determination as to a director's or officer's
indemnification under Section 8.02 shall be submitted to both the
corporation and the director or officer within 60 days of the
selection made under (a).
(d) If it is determined that indemnification is required under
Section 8.02, the corporation shall pay all liabilities and expenses
not prohibited by Section 8.04 within 10 days after receipt of the
written determination under (c). The corporation shall also pay all
expenses incurred by the director or officer in the determination
process under (a).
8.06. Advance of Expenses. Within 10 days after receipt of a
written request by a director or officer who is a party to a proceeding, the
corporation shall pay or reimburse his or her reasonable expenses as incurred
if the director or officer provides the corporation with all of the following:
(1) A written affirmation of his or her good
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faith belief that he or she has not breached or failed to
perform his or her duties to the corporation.
(2) A written undertaking, executed personally or on his
or her behalf, to repay the allowance to the extent that it is
ultimately determined under Section 8.05 that indemnification
under Section 8.02 is not required and that indemnification is
not ordered by a court under Section 8.08(b)(2). The
undertaking under this subsection shall be an unlimited
general obligation of the director or officer and may be
accepted without reference to his or her ability to repay the
allowance. The undertaking may be secured or unsecured.
8.07. Nonexclusivity.
(a) Except as provided in (b), Sections 8.01, 8.02 and 8.06 do
not preclude any additional right to indemnification or allowance of
expenses that a director or officer may have under any of the
following:
(1) The Articles of Incorporation.
(2) A written agreement between the director or officer
and the corporation.
(3) A resolution of the board of directors.
(4) A resolution, after notice, adopted by a majority
vote of all of the corporation's voting shares then issued and
outstanding.
(b) Regardless of the existence of an additional right under
(a), the corporation shall not indemnify a director or officer, or
permit a director or officer to retain any allowance of expenses
unless it is determined by or on behalf of the corporation that the
director or officer did not breach or fail to perform a duty he or
she owes to the corporation which constitutes conduct under Section
8.02(a)(1), (2), (3) or (4). A director or officer who is a party
to the same or related proceeding for which indemnification or an
allowance of expenses is sought may not participate in a
determination under this subsection.
(c) Sections 8.01 to 8.13 do not affect the corporation's power
to pay or reimburse expenses incurred by a director or officer in
any of the following circumstances.
(1) As a witness in a proceeding to which he or
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she is not a party.
(2) As a plaintiff or petitioner in a proceeding because
he or she is or was an employee, agent, director or officer of
the corporation.
8.08. Court-Ordered Indemnification.
(a) Except as provided otherwise by written agreement between
the director or officer and the corporation, a director or officer
who is a party to a proceeding may apply for indemnification to the
court conducting the proceeding or to another court of competent
jurisdiction. Application may be made for an initial determination
by the court under Section 8.05(a)(5) or for review by the court of
an adverse determination under Section 8.05(a) (1), (2), (3), (4) or
(6). After receipt of an application, the court shall give any
notice it considers necessary.
(b) The court shall order indemnification if it determines any
of the following:
(1) That the director or officer is entitled to
indemnification under Sections 8.01 or 8.02.
(2) That the director or officer is fairly and reasonably
entitled to indemnification in view of all the relevant
circumstances, regardless of whether indemnification is
required under Section 8.02.
(c) If the court determines under (b) that the director or
officer is entitled to indemnification, the corporation shall pay
the director's or officer's expenses incurred to obtain the
court-ordered indemnification.
8.09. Indemnification of Employees and Agents. The corporation
shall indemnify an employee of the corporation, to the extent that he or she
has been successful on the merits or otherwise in defense of a proceeding, for
all expenses incurred in the proceeding if the employee was a party because
he or she was an employee of the corporation. In addition, the corporation may
indemnify and allow reasonable expenses of an employee or agent who is not a
director or officer to the extent provided by the Articles of Incorporation or
Bylaws, by general or specific action of the board of directors or by contract.
8.10. Insurance. The corporation may purchase and maintain
insurance on behalf of an individual who is an employee, agent, director or
officer of the corporation against liability asserted against or incurred by
the individual in his or her capacity as an
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employee, agent, director or officer, regardless of whether the corporation is
required or authorized to indemnify or allow expenses to the individual against
the same liability under Sections 8.01, 8.02, 8.06 and 8.09.
8.11. Securities Law Claims.
(a) Pursuant to the public policy of the State of Wisconsin,
the corporation shall provide indemnification and allowance of
expenses and may insure for any liability incurred in connection
with a proceeding involving securities regulation described under
(b) to the extent required or permitted under Sections 8.01 to 8.10.
(b) Sections 8.01 to 8.10 apply, to the extent applicable to
any other proceeding, to any proceeding involving a federal or state
statute, rule or regulation regulating the offer, sale or purchase
of securities, securities brokers or dealers, or investment
companies or investment advisers.
8.12. Liberal Construction. In order for the corporation to
obtain and retain qualified directors, officers and employees, the foregoing
provisions shall be liberally administered in order to afford maximum
indemnification of directors, officers and employees and, accordingly, the
indemnification above provided for shall be granted in all cases unless to do
so would clearly contravene applicable law, controlling precedent or public
policy.
8.13. Report to Shareholders. If the corporation indemnifies or
advances expenses to a director or officer as required or permitted by these
bylaws or Wisconsin law in connection with a proceeding by or in the
right of the corporation, the corporation shall report the indemnification or
advance in writing to the shareholders in accordance with Section 2.04(g) of
these Bylaws.
8.14. Definitions. Applicable to this Article.
(a) "Affiliate" shall include, without limitation, any
corporation, partnership, joint venture, employee benefit plan,
trust or other enterprise that directly or indirectly through one or
more intermediaries, controls or is controlled by, or is under
common control with, the corporation.
(b) "Corporation" means this corporation and any domestic or
foreign predecessor of this corporation where the predecessor
corporation's existence ceased upon the consummation of a merger or
other transaction.
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(c) "Director or Officer" means any of the following:
(1) A natural person who is or was a director or officer
of this corporation.
(2) A natural person who, while a director or officer of
this corporation, is or was serving at the corporation's
request as a director, officer, partner, trustee, member of
any governing or decision-making committee, employe or agent
of another corporation or foreign corporation, partnership,
joint venture, trust or other enterprise.
(3) A natural person who, while a director or officer of
this corporation, is or was serving an employe benefit plan
because his or her duties to the corporation also impose
duties on, or otherwise involve services by, the person to the
plan or to participants in or beneficiaries of the plan.
(4) Unless the context requires otherwise, the estate or
personal representative of a director or officer.
For purposes of this Article, it shall be conclusively presumed that any
Director or Officer serving as a director, officer, partner, trustee,
member of any governing or decision-making committee, employee or agent of
an Affiliate shall be so serving at the request of the corporation.
(d) "Expenses" include fees, costs, charges, disbursements,
attorney fees and other expenses incurred in connection with a
proceeding.
(e) "Liability" includes the obligation to pay a judgment,
settlement, penalty, assessment, forfeiture or fine, including an
excise tax assessed with respect to an employe benefit plan, and
reasonable expenses.
(f) "Party" includes a natural person who was or is, or who is
threatened to be made, a named defendant or respondent in a
proceeding.
(g) "Proceeding" means any threatened, pending or completed
civil, criminal, administrative or investigative action, suit,
arbitration or other proceeding, whether formal or informal, which
involves foreign, federal, state or local law and which is brought
by or in the right of the corporation or by any other person.
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ARTICLE IX. SEAL
The Board of Directors may provide a corporate seal which may be
circular in form and have inscribed thereon the name of the corporation and
the state of incorporation and the words "Corporate Seal."
ARTICLE X. AMENDMENTS
10.01. By Shareholders. These Bylaws may be amended or repealed
and new Bylaws may be adopted by the shareholders by the vote provided in
Section 2.07 of these Bylaws or by such greater vote as may be required by law.
10.02. By Directors. Except as the Articles of Incorporation or
the Wisconsin Business Corporation Law may otherwise provide, these Bylaws may
also be amended or repealed and new bylaws may be adopted by the Board of
Directors, but no Bylaw adopted by the shareholders shall be amended, repealed
or readopted by the Board of Directors if the Bylaw so adopted so provides.
10.03. Implied Amendments. Any action taken or authorized by the
shareholders or by the Board of Directors, which would be inconsistent with the
Bylaws then in effect but is taken or authorized by affirmative vote of not
less than the number of shares or the number of directors required to amend the
Bylaws so that the Bylaws would be consistent with such action, shall be given
the same effect as though the Bylaws had been temporarily amended or suspended
so far, but only so far, as is necessary to permit the specific action so taken
or authorized.
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EXHIBIT 5
(Form S-8)
May 1, 1996
WEYCO Group, Inc.
234 East Reservoir Avenue
Milwaukee, Wisconsin 53201
Gentlemen:
We are providing this opinion in connection with the Registration
Statement of WEYCO Group, Inc. (the "Company") on Form S-8 (the "Registration
Statement") filed under the Securities Act of 1933, as amended (the "Act"),
with respect to the proposed sale of up to 100,000 shares of Common Stock,
$1.00 par value, of the Company (the "Shares") pursuant to the WEYCO Group,
Inc. 1996 Nonqualified Stock Option Plan (the "Plan"). We have examined (i)
the Registration Statement; (ii) the Company's Articles of Incorporation and
Bylaws, each as amended and/or restated to date; (iii) the Plan; (iv) corporate
proceedings relating to the adoption of the Plan and the issuance of the
Shares; and (v) such other documents and records as we have deemed necessary in
order to render this opinion. In rendering this opinion, we have relied as to
certain factual matters on certificates of officers of the Company and of state
officials.
Based upon the foregoing, it is our opinion that:
1. The Company is a corporation duly incorporated and validly existing
under the laws of the State of Wisconsin.
2. The Shares to be sold from time to time pursuant to the Plan which
are original issuance shares, when issued and paid for as
contemplated by the Registration Statement and the Plan, will
be validly issued, fully paid and non-assessable by the Company
subject to the personal liability which may be imposed on
shareholders by Section 180.0622(2)(b) of the Wisconsin
Business Corporation Law, as judicially interpreted, for debts
owing to employees for services performed, but not exceeding
six months service in any one case. Although Section
180.0622(2)(b) provides that such personal liability of
shareholders shall be "to an amount equal to the par value of
shares owned by them respectively, and to the consideration for
which their shares without par value was issued," the Wisconsin
Supreme Court, by a split decision without a written opinion,
has affirmed a judgment holding shareholders of a corporation
liable under the substantially identical predecessor statute in
effect prior to January 1, 1991 (Section 180.40(6)) for unpaid
employee wages to an amount equal to the consideration for
which their par value shares were issued rather than the
shares' lower stated par value. Local 257 of Hotel and
Restaurant Employees and Bartenders International Union v.
Wilson Street East Dinner Playhouse, Inc., 126 Wis. 2d 284, 375
N.W.2d 664 (1985) (affirming the 1983 decision of the Circuit
Court for Dane County, Wisconsin, in Case No. 82-CV-0023).
We consent to the filing of this opinion as an Exhibit to the Registration
Statement. In giving our consent, we do not admit that we are "experts" within
the meaning of Section 11 of the Act, or that we come within the category of
persons whose consent is required by Section 7 of the Act.
Very truly yours,
QUARLES & BRADY
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accounts, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 19, 1996
incorporated by reference in Weyco Group, Inc.'s Form 10-K for the year ended
December 31, 1995.
ARTHUR ANDERSEN LLP
