EXHIBIT A-8
AMENDED AND RESTATED BYLAWS
OF
ATC MANAGEMENT INC.
The following terms used herein will have the following meaning:
"COMPANY" means American Transmission Company LLC, a Wisconsin limited
liability company.
"CONVERSION" means the conversion of Class B Common Stock into Class A
Common Stock.
"CORPORATION" means ATC Management Inc., a Wisconsin corporation.
"INDEPENDENT DIRECTOR" means a director who is not a director, employee or
independent contractor of a person engaged in the production, sales, marketing,
transmission or distribution of electricity or natural gas or an affiliate of
such person.
"LISTING" means the closing of an offering of Class A Common Stock that has
the effect of listing such shares on the New York Stock Exchange, American Stock
Exchange, Nasdaq National Market System, or any of their successors.
"OPERATING AGREEMENT" means the Operating Agreement of American
Transmission Company LLC, dated as of January 1, 2001.
"OPERATIONS DATE" means the date that the Company commences operations, as
determined by the Public Service Commission of Wisconsin.
These Amended and Restated Bylaws supercede and replace entirely any and
all prior bylaws of the Company and shall be effective as of, and as if in
effect on January 1, 2001.
ARTICLE I
CAPITAL STOCK
1.1 Classes.
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(a) There initially shall be three classes of capital stock of the
Corporation, the preferences, limitations and relative rights of which are be
set forth in the Articles of Incorporation, as it may be amended from time to
time.
(b) Subject to any restrictions imposed by the Wisconsin Business
Corporation Law, the Board of Directors may issue additional shares of capital
stock from time to time.
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1.2 Certificates. The shares of capital stock of the Corporation shall be
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evidenced by certificates in forms prescribed by the Board of Directors and
executed in any manner permitted by law and stating thereon the information
required by law. Transfer agents and/or registrars for one or more classes of
shares of the Corporation may be appointed by the Board of Directors and may be
required to countersign certificates representing shares of such class or
classes. If any officer whose signature or facsimile thereof shall have been
used on a share certificate shall for any reason cease to be an officer of the
Corporation and such certificate shall not then have been delivered by the
Corporation, the Board of Directors may nevertheless adopt such certificate and
it may then be issued and delivered as though such person had not ceased to be
an officer of the Corporation.
1.3 Lost, Destroyed and Mutilated Certificates. Holders of the shares of
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the Corporation shall immediately notify the Corporation of any loss,
destruction or mutilation of the certificate therefor, and the Board of
Directors may in its discretion cause one or more new certificates for the same
number of shares in the aggregate to be issued to such shareholder upon the
surrender of the mutilated certificate or upon satisfactory proof of such loss
or destruction, and the deposit of a bond in such form and amount and with such
surety as the Board of Directors may require.
1.4 Transfer of Shares. The shares of the Corporation shall be
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transferable or assignable only on the books of the Corporation by the holder in
person or by attorney on surrender of the certificate for such shares duly
endorsed and, if sought to be transferred by attorney, accompanied by a written
power of attorney to have the same transferred on the books of the Corporation.
The Corporation will recognize, however, the exclusive right of the person
registered on its books as the owner of shares to receive dividends and to vote
as such owner.
1.5 Fixing Record Date. For the purpose of determining shareholders
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entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or entitled to receive payment of any dividend, or in order
to make a determination of shareholders for any other proper purpose, the Board
of Directors may fix in advance a date as the record date for any such
determination of shareholders, such date in any case to be not more than 70 days
prior to the date on which the particular action, requiring such determination
of shareholders, is to be taken. If no record date is fixed for the
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders, or shareholders entitled to receive payment of a dividend, the
date on which notices of the meeting are mailed or the date on which the
resolution of the Board of Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determination of shareholders.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, such determination shall
apply to any adjournment thereof unless the Board of Directors fixes a new
record date, which it shall do if the meeting is adjourned to a date more than
120 days after the date fixed for the original meeting.
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ARTICLE II
MEETINGS OF SHAREHOLDERS
2.1 Places of Meetings. All meetings of the shareholders shall be held at
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such place, either within or without the State of Wisconsin, as from time to
time may be fixed by the Board of Directors.
2.2 Annual Meetings. The annual meeting of the shareholders, for the
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election of Directors and transaction of such other business as may come before
the meeting, shall be held in each year on the third Tuesday in June, at 10
a.m., or such other day as shall be determined by the Board of Directors.
2.3 Special Meetings. A special meeting of the shareholders for any
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purpose or purposes may be called at any time by the Chairman of the Board, the
President or any Director. In addition, the Corporation shall call a special
meeting upon the demand of holders of at least 10% of all votes entitled to be
cast on any issue proposed to be considered at the proposed special meeting,
which demands shall be signed and dated and shall describe one or more purposes
for which the meeting is to be held. At a special meeting no business shall be
transacted and no corporate action shall be taken other than that stated in the
notice of the meeting.
2.4 Notice of Meetings. Written or printed notice stating the place, day
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and hour of every meeting of the shareholders and, in case of a special meeting,
the purpose or purposes for which the meeting is called, shall be mailed not
less than 10 nor more than 60 days before the date of the meeting to each
shareholder of record entitled to vote at such meeting, at his address which
appears in the share transfer books of the Corporation. Such further notice
shall be given as may be required by law, but meetings may be held without
notice if all the shareholders entitled to vote at the meeting are present in
person or by proxy or if notice is waived in writing by those not present,
either before or after the meeting.
2.5 Quorum. Any number of shareholders together holding at least a
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majority of the outstanding shares of capital stock entitled to vote with
respect to the business to be transacted, who shall be present in person or
represented by proxy at any meeting duly called, shall constitute a quorum for
the transaction of business. If less than a quorum shall be in attendance at the
time for which a meeting shall have been called, the meeting may be adjourned
from time to time by a majority of the shareholders present or represented by
proxy without notice other than by announcement at the meeting.
2.6 Voting.
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(a) At any meeting of the shareholders each shareholder of a class
entitled to vote on any matter coming before the meeting shall, as to such
matter, have one vote, in person or by proxy, for each share of capital stock of
such class standing in his name on the books of the Corporation on the date, not
more than seventy days prior to such meeting, fixed by the Board of Directors as
the record date for the purpose of determining shareholders entitled to vote.
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Every proxy shall be in writing, dated and signed by the shareholder entitled to
vote or his duly authorized attorney-in-fact.
(b) The act of the majority of shareholders of a class at which a
quorum is present shall be the act of such class of shareholders; provided,
however, that a unanimous vote of the holders of the Class B Common Stock is
required to (i) amend this Section 2.6 or Section 3.2 prior to the tenth
anniversary of the Operations Date, (ii) approve a public offering before the
third anniversary of the Operations Date; (iii) amend any provision hereof that
incorporates or embodies a provision of 1999 Wisconsin Act 9; or (iv) amend
Section 3.5(d) with respect to the requirement of a two-thirds affirmative vote
by the Directors to issue Preferred Stock.
2.7 Inspectors. An appropriate number of inspectors for any meeting of
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shareholders may be appointed by the Chairman of such meeting. Inspectors so
appointed will open and close the polls, will receive and take charge of proxies
and ballots, and will decide all questions as to the qualifications of voters,
validity of proxies and ballots, and the number of votes properly cast.
ARTICLE III
DIRECTORS
3.1 General Powers. The property, affairs and business of the
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Corporation shall be managed under the direction of the Board of Directors, and,
except as otherwise expressly provided by law, the Articles of Incorporation or
these Bylaws, all of the powers of the Corporation shall be vested in such
Board. Without limiting the foregoing, the Board will consider and approve, for
each fiscal year, an operating and a capital budget for the Company.
3.2 Number of Directors.
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(a) Until the earlier of (1) the Conversion, or (2) the Listing, the
number of Directors constituting the Board of Directors shall be five plus the
number of Directors that an individual shareholder or group of shareholders is
entitled to appoint in accordance with Chapter 196 of the Wisconsin Statutes.
(i) Four of the five Directors that an individual shareholder or
group of shareholders is not entitled to appoint shall be Independent
Directors.
(ii) The fifth Director that an individual shareholder or group of
shareholders is not entitled to appoint shall be the President of the
Corporation.
(b) Upon the earlier of (1) the Conversion, or (2) the Listing, the
number of Directors shall be the sum of (A) the number of Directors that an
individual shareholder or group of shareholders is entitled to appoint under
Chapter 196 of the Wisconsin Statutes and (B) the number specified in clause (A)
plus one, or, if required to make the total number of Directors an odd number,
plus two.
(i) At least four of the Directors specified in clause (B) shall be
Independent Directors.
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(ii) Notwithstanding Section 196.485(3m)(c)(1), it is unanimously
agreed that the number of Directors may exceed 14.
(c) The provisions set forth in this Section 3.2 may be amended during
the first ten years following the Operations Date only by the unanimous vote of
the holders of the Class B Common Stock and thereafter by a 2/3 vote of such
holders.
3.3 Term.
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(a) The four Directors specified in Section 3.2(a)(i) shall be elected
for four-year terms; provided, that initially one such Director shall be elected
for a one-year term, one for a two-year term, and one for a three-year term; and
provided, further, that such terms may be adjusted to accommodate the
requirements of Section 3.3(b).
(b) The number of Directors specified in Section 3.2(b)(ii) shall be
divided into four groups as evenly as possible, with each group being elected
for four-year terms, provided that initially one such group shall be elected for
a one-year term, one for a two-year term, and one for a three-year term.
3.4 Election and Removal of Directors.
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(a) Directors shall be elected at each annual meeting of shareholders
to succeed those Directors whose terms have expired and to fill any vacancies
then existing.
(b) Any Director appointed in accordance with Chapter 196.485 of the
Wisconsin Statutes may be removed only with the approval of the Shareholder that
designated such Director. Any other Director may be removed from office at a
meeting called expressly for that purpose by the vote of shareholders holding
not less than a majority of the shares entitled to vote at an election of such
Director.
(c) Any vacancy occurring in the Board of Directors shall be filled as
follows: If the vacancy is with respect to a Director entitled to be appointed
in accordance with Chapter 196.485 of the Wisconsin Statutes, the Shareholder
entitled to appoint such Director shall designate a replacement to serve the
remainder of the term. If the vacancy is with respect to any other Director, it
may be filled by a vote of the remaining Directors, and the term of office of
any Director so elected shall expire at the next shareholders' meeting at which
Directors are elected.
3.5 Meetings of Directors.
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(a) An annual meeting of the Board of Directors shall be held as soon
as practicable after the adjournment of the annual meeting of shareholders at
such place as the Board may designate. Other meetings of the Board of Directors
shall be held at places within or without the State of Wisconsin and at times
fixed by resolution of the Board, or upon call of the Chairman of the Board, the
President or upon the written request of two or more Directors. The Secretary or
officer performing the Secretary's duties shall give not less than 48 hours'
notice by letter, telegraph or telephone (or in person) of all meetings of the
Board of Directors, provided that notice need not be given of the annual meeting
or of regular meetings held at times and places fixed by resolution of the
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Board. Meetings may be held at any time without notice if all of the Directors
are present, or if those not present waive notice in writing either before or
after the meeting. The notice of meetings of the Board need not state the
purpose of the meeting.
(b) Any regular or special meeting of the Board of Directors may be
held by or through any means of communication by which all participating
directors may simultaneously hear each other during the meeting, or whereby all
communications 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. If a meeting is held in
reliance on the foregoing, 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 pursuant to the foregoing is deemed to be present in
person at the meeting.
(c) Action required or permitted by this Agreement to be taken at a
Board of Directors meeting may be taken without a meeting if the action is taken
by all of the Directors of the Board of Directors as evidenced by one or more
written consents. Such written consent or consents shall be signed by each
Director either before or after the action is taken, state the action taken, and
be included in the minutes or filed with the corporate records reflecting the
action taken.
(d) Until the Listing, two-thirds of the number of Directors
prescribed in these Bylaws shall constitute a quorum for the transaction of
business. Thereafter, a majority of the number of Directors prescribed in these
Bylaws shall constitute a quorum for the transaction of business. The act of a
majority of Directors present at a meeting at which a quorum is present shall be
the act of the Board of Directors, provided that any decision to issue Preferred
Stock will require the affirmative vote of at least two-thirds of the Directors
then in office. Less than a quorum may adjourn any meeting.
3.6 Compensation. By resolution of the Board, Directors may be allowed
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a fee and expenses for attendance at all meetings, but nothing herein shall
preclude Directors, other than Independent Directors, from serving the
Corporation in other capacities and receiving compensation for such other
services.
3.7 Qualification of Directors. No Director may stand for re-election
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if he or she shall have attained the age of 70 prior to the annual meeting for
the election of Directors. Until the Listing, if an Independent Director
resigns, retires or is otherwise terminated from his or her primary employment
and does not obtain, within six months thereafter, an employment position
comparable to the one he or she had when first elected a Director, he or she
shall resign from the Board effective the sixth month after termination of his
primary employment, unless prior thereto a majority of the Class B Shareholders
shall affirmatively vote to retain such director.
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ARTICLE IV
COMMITTEES
4.1 Executive Committee. The Board of Directors, by resolution adopted
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by a majority of the number of Directors fixed by these Bylaws, may elect an
Executive Committee which shall consist of not less than three elected
Directors, including the President and one Independent Director. When the Board
of Directors is not in session, the Executive Committee shall have all power
vested in the Board of Directors by law, by the Articles of Incorporation, or by
these Bylaws, provided that the Executive Committee shall not have power to
approve or recommend to shareholders action that the Wisconsin Business
Corporation Law requires to be approved by shareholders, fill vacancies on the
Board or on any of its committees, amend the Articles of Incorporation, adopt,
amend, or repeal the Bylaws, approve a plan of merger not requiring shareholder
approval, authorize or approve a distribution, except according to a general
formula or method prescribed by the Board of Directors, or 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, other than within limits specifically prescribed by the Board
of Directors.
The Executive Committee shall report at the next regular or special meeting
of the Board of Directors all action, which the Executive Committee may have
taken on behalf of the Board since the last regular or special meeting of the
Board of Directors.
4.2 Finance Committee. The Board of Directors, by resolution adopted
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by a majority of the number of Directors fixed by these Bylaws, may elect a
Finance Committee, which shall consist of not less than three Directors,
including one Independent Director. The Finance Committee shall consider and
report to the Board with respect to operating and capital budgets of the Company
and the Corporation, plans for Company expansion, capital structure and
long-range financial requirements. The Committee shall also consider and report
to the Board with respect to such other matters relating to the financial
affairs of the Corporation as may be requested by the Board or the appropriate
officers of the Corporation. The Committee shall report periodically to the
Board of Directors on all action, which it may have taken.
4.3 Audit Committee. The Board of Directors, by resolution of a
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majority of the number of Directors fixed by these Bylaws, may elect an Audit
Committee which shall consist of not less than three Directors, including one
Independent Director. The Audit Committee shall consider and report to the Board
with respect to the Corporation's accounting and treasury controls, the
appointment of an independent auditing firm, and such other matters as shall be
requested of it by the Board. The Committee shall report periodically to the
Board of Directors on all action which it may have taken. Prior to the Listing,
the Corporation shall establish a charter for the Audit Committee that is
consistent with the requirements of the exchange or system upon which the
Corporation's stock is traded, and with the rules and regulations of the
Securities and Exchange Commission.
4.4 Other Committees. The Board of Directors, by resolution adopted by
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a majority of the number of Directors fixed by these Bylaws, may establish such
other standing or special committees of the Board as it may deem advisable,
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consisting of not less than two Directors; and the members, terms and authority
of such committees shall be as set forth in the resolutions establishing the
same. The Board of Directors shall have the power to change the membership of or
to dissolve any committee at any time.
4.5 Meetings. Regular and special meetings of any Committee
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established pursuant to this Article may be called and held subject to the same
requirements with respect to time, place and notice as are specified in these
Bylaws for regular and special meetings of the Board of Directors.
4.6 Quorum and Manner of Acting. A majority of the members of any
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Committee serving at the time of any meeting thereof shall constitute a quorum
for the transaction of business at such meeting. The action of a majority of
those members present at a Committee meeting at which a quorum is present shall
constitute the act of the Committee.
4.7 Term of Office. Members of any Committee shall be elected as above
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provided and shall hold office until their successors are elected by the Board
of Directors or until such Committee is dissolved by the Board of Directors.
4.8 Resignation and Removal. Any member of a Committee may resign at
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any time by giving written notice of his intention to do so to the President or
the Secretary of the Corporation, or may be removed, with or without cause, at
any time by such vote of the Board of Directors as would suffice for his
election.
4.9 Vacancies. Any vacancy occurring in a Committee resulting from any
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cause whatever may be filled by a majority of the number of Directors fixed by
these Bylaws.
ARTICLE V
OFFICERS
5.1 Election of Officers; Terms. The officers of the Corporation shall
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consist of a President, a Vice President, a Secretary and a Chief Financial
Officer. Other officers, including without limitation a Chairman of the Board,
Chief Executive Officer, one or more Vice Presidents (whose seniority and
titles, including Executive Vice Presidents and Senior Vice Presidents, may be
specified by the Board of Directors), and assistant and subordinate officers,
may from time to time be elected by the Board of Directors. All officers shall
hold office until the next annual meeting of the Board of Directors and until
their successors is elected. Any two officers may be combined in the same person
as the Board of Directors may determine.
5.2 Removal of Officers; Vacancies. Any officer of the Corporation may
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be removed summarily with or without cause, at any time, by the Board of
Directors. Vacancies may be filled by the Board of Directors.
5.3 Duties. The officers of the Corporation shall have such duties as
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generally pertain to their offices, respectively, as well as such powers and
duties as are prescribed by law or are hereinafter provided or as from time to
time shall be conferred by the Board of Directors. The Board of Directors may
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require any officer to give such bond for the faithful performance of his duties
as the Board may see fit.
5.4 Duties of the Chief Executive Officer. The Chief Executive Officer
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of the Corporation shall be primarily responsible for the implementation of
policies of the Board of Directors. The Chief Executive Officer also may serve
as the President of the Corporation. He shall have authority over the general
management and direction of the business and operations of the Corporation and
its divisions, if any, subject only to the ultimate authority of the Board of
Directors. He shall be a Director, and, except as otherwise provided in these
Bylaws or in the resolutions establishing such committees, he shall be ex
officio a member of all Committees of the Board. In the absence of the Chairman
and the Vice-Chairman of the Board, or if there are no such officers, the
President shall preside at all corporate meetings. He may sign and execute in
the name of the Corporation share certificates, deeds, mortgages, bonds,
contracts or other instruments except in cases where the signing and the
execution thereof shall be expressly delegated by the Board of Directors or by
these Bylaws to some other officer or agent of the Corporation or shall be
required by law otherwise to be signed or executed. In addition, he shall
perform all duties as from time to time may be assigned to him by the Board of
Directors.
5.5 Duties of the President. The President, who also may be the Chief
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Executive Officer, shall be primarily responsible for the implementation of
policies of the Board of Directors. He shall have authority over the general
management and direction of the business and operations of the Corporation and
its divisions, if any, subject only to the Chief Executive Officer and the
ultimate authority of the Board of Directors. He may sign and execute in the
name of the Corporation share certificates, deeds, mortgages, bonds, contracts
or other instruments except in cases where the signing and the execution thereof
shall be expressly delegated by the Board of Directors or by these Bylaws to
some other officer or agent of the Corporation or shall be required by law
otherwise to be signed or executed. In addition, he shall perform all duties
incident to the office of the President and such other duties as from time to
time may be assigned to him by the Board of Directors.
5.6 Duties of the Vice Presidents. Each Vice President, if any, shall
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have such powers and duties as may from time to time be assigned to him by the
President or the Board of Directors. Any Vice President may sign and execute in
the name of the Corporation deeds, mortgages, bonds, contracts or other
instruments authorized by the Board of Directors, except where the signing and
execution of such documents shall be expressly delegated by the Board of
Directors or the President to some other officer or agent of the Corporation or
shall be required by law or otherwise to be signed or executed.
5.7 Duties of the Chief Financial Officer. The Chief Financial Officer
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shall have charge of and be responsible for all funds, securities, receipts and
disbursements of the Corporation, and shall deposit all monies and securities of
the Corporation in such banks and depositories as shall be designated by the
Board of Directors. He shall be responsible (i) for maintaining adequate
financial accounts and records in accordance with generally accepted accounting
practices; (ii) for the preparation of appropriate operating budgets and
financial statements; (iii) for the preparation and filing of all tax returns
required by law; and (iv) for the performance of all duties incident to the
office of Chief Financial Officer and such other duties as from time to time may
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be assigned to him by the Board of Directors, the Finance Committee or the
President. The Chief Financial Officer may sign and execute in the name of the
Corporation share certificates, deeds, mortgages, bonds, contracts or other
instruments, except in cases where the signing and the execution thereof shall
be expressly delegated by the Board of Directors or by these Bylaws to some
other officer or agent of the Corporation or shall be required by law or
otherwise to be signed or executed.
5.8 Duties of the Secretary. The Secretary shall act as secretary of
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all meetings of the Board of Directors and shareholders of the Corporation. When
requested, he shall also act as secretary of the meetings of the committees of
the Board. He shall keep and preserve the minutes of all such meetings in
permanent books. He shall see that all notices required to be given by the
Corporation are duly given and served; shall have custody of the seal of the
Corporation and shall affix the seal or cause it to be affixed to all share
certificates of the Corporation and to all documents the execution of which on
behalf of the Corporation under its corporate seal is duly authorized in
accordance with law or the provisions of these Bylaws; shall have custody of all
deeds, leases, contracts and other important corporate documents; shall have
charge of the books, records and papers of the Corporation relating to its
organization and management as a Corporation; shall see that all reports,
statements and other documents required by law (except tax returns) are properly
filed; and shall in general perform all the duties incident to the office of
Secretary and such other duties as from time to time may be assigned to him by
the Board of Directors or the President.
5.9 Compensation. The Board of Directors shall have authority to fix
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the compensation of all officers of the Corporation.
ARTICLE VI
DISPUTE RESOLUTION
All disputes concerning the Corporation or the Company, including without
limitation, disputes between the shareholders and the Board of Directors or
disputes between officers and the Board of Directors, will be resolved in
accordance with the Dispute Resolution guidelines set forth in Exhibit B to the
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Operating Agreement.
ARTICLE VII
INDEMNIFICATION
7.1 Definitions. In this Article:
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(a) "applicant" means the person seeking indemnification pursuant to
this Article.
(b) "director or officer" means (a) an individual who was or is a
director or officer of the Corporation; (b) an individual who, while a director
or officer of the Corporation, is or was serving at the Corporation's request,
as a director, officer, partner, trustee, member of any governing or
decision-making committee, manager, employee or agent of another corporation,
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limited liability company, partnership, joint venture, trust or other
enterprise; or (c) an individual who, while a director or officer of the
Corporation, is or was serving as administrator or trustee of an employee
benefit plan because his or her duties to the Corporation also impose duties on,
or otherwise involve services by, the person to the plan or to participants in
or beneficiaries of the plan.
(c) "expenses" include fees, costs, charges, disbursements, attorney
fees and any other expenses incurred in connection with a proceeding.
(d) "liability" means the obligation to pay a judgment, settlement,
penalty, assessment, forfeiture or fine, including an excise tax assessed with
respect to an employee benefit plan, and reasonable expenses.
(e) "party" includes an individual who was or is, or who is threatened
to be made, a named defendant or respondent in a proceeding.
(f) "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 bought by or in the right of the corporation or by any
other person.
7.2 Limitation of Liability. No director of the Corporation shall be
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liable to 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 following:
(a) A wilful failure to deal fairly with the corporation or its
shareholders in connection with a matter in which the director has a material
conflict of interest;
(b) A violation of the criminal law, unless the director or officer
had reasonable cause to believe that his or her conduct was lawful or no
reasonable cause to believe that his or her conduct was unlawful;
(c) A transaction from which the director derived an improper personal
profit; or
(d) Wilful misconduct.
7.3 Mandatory Indemnification.
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(a) The Corporation shall indemnify a director or officer, to the
extent that 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.
(b) In cases not included under Section 7.3(a) the Corporation shall
indemnify a director of officer against liability incurred by the director or
officer in a proceeding to which the director or officer was a party because he
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or she is a director or officer of the corporation, unless liability was
incurred because the director or officer breached or failed to perform a duty
that he or she owes to the Corporation and the breach or failure to perform
constitutes any of the following:
(i) A wilful failure to deal fairly with the corporation or its
shareholders in connection with a matter in which the director or officer
has a material conflict of interest;
(ii) A violation of the criminal law, unless the director or officer
had reasonable cause to believe that his or her conduct was lawful or no
reasonable cause to believe that his or her conduct was unlawful;
(iii) A transaction from which the director or officer derived an
improper personal profit; or
(iv) Wilful misconduct.
(c) The termination of any proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not of
itself create a presumption that the applicant did not meet the standard of
conduct described in Section 7.3(b) of this Article.
7.4 Indemnification of Employees and Agents.
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(a) The Corporation shall indemnify an employee who is not a director
or officer 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 reasonable
expenses incurred in the proceeding if the employee was a party because he or
she was an employee of the Corporation.
(b) In addition to the indemnification required by Section 7.4(a), the
Corporation may by majority vote of a quorum consisting of disinterested
directors, indemnify or contract to indemnify, and allow reasonable expenses of
an employee or agent who is not a director or officer of the Corporation.
7.5 Applicability. The provisions of this Article shall be applicable
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to all proceedings commenced after the adoption hereof by the shareholders of
the Corporation, arising from any act or omission, whether occurring before or
after such adoption. No amendment or repeal of this Article shall have any
effect on the rights provided under this Article with respect to any act or
omission occurring prior to such amendment or repeal. The Corporation shall
promptly take all such actions, and make all such determinations, as shall be
necessary or appropriate to comply with its obligation to make any indemnity
under this Article and shall promptly pay or reimburse all reasonable expenses,
including attorneys' fees, incurred by any such director, officer, employee or
agent in connection with such actions and determinations or proceedings of any
kind arising therefrom.
7.6 Determination of Right to Indemnification. Any indemnification
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under Section 7.3 of this Article (unless ordered by a court) shall be made by
the Corporation only as authorized in the specific case upon a determination
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that indemnification of the applicant is proper in the circumstances because he
has met the applicable standard of conduct set forth in Section 7.3(b). The
determination shall be made:
(a) By the Board of Directors by a majority vote of a quorum
consisting of directors not at the time parties to the proceeding;
(b) If a quorum cannot be obtained under Section 7.6(a), by majority
vote of a committee duly designated by the Board of Directors (in which
designation directors who are parties may participate), consisting solely of two
or more directors not at the time parties to the proceeding;
(c) By special legal counsel:
(i) Selected by the Board of Directors or its committee in the manner
prescribed in Section 7.6(a) or (b); or
(ii) If a quorum of the Board of Directors cannot be obtained under
Section 7.6(a) and a committee cannot be designated under Section 7.6(b) of
this section, selected by majority vote of the full Board of Directors, in
which selection directors who are parties may participate;
(d) By the shareholders, but shares owned by or voted under the
control of directors who are at the time parties to the proceeding may not be
voted on the determination; or
(e) By a court underss.180.0854 of the Wisconsin Statutes.
Any evaluation as to reasonableness of expenses shall be made in the same
manner as the determination that indemnification is appropriate, except that if
the determination is made by special legal counsel, such evaluation as to
reasonableness of expenses shall be made by those entitled under Section 7.6(c)
to select counsel.
Notwithstanding the foregoing, in the event there has been a change in the
composition of a majority of the Board of Directors after the date of the
alleged act or omission with respect to which indemnification is claimed, any
determination as to indemnification and advancement of expenses with respect to
any claim for indemnification made pursuant to this Article shall be made by
special legal counsel agreed upon by the Board of Directors and the applicant.
If the Board of Directors and the applicant are unable to agree upon such
special legal counsel the Board of Directors and the applicant each shall select
a nominee, and the nominees shall select such special legal counsel.
7.7 Indemnification Procedure.
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(a) Upon written request of a director or officer who is a party to a
proceeding, the Corporation may pay or reimburse his or her reasonable expenses
as incurred if the director or officer provides the Corporation with all of the
following:
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(i) a written affirmation of his good faith belief that he or she has
not failed to perform his or her duties to the Corporation.
(ii) A written undertaking, executed personally or on his or her
behalf, to repay the allowance and, if required by the Corporation, to pay
reasonable interest on the allowance to the extent that it is ultimately
determined under Section 7.6 that indemnification under Section 7.3 is not
required and that indemnification is not ordered by a court
underss.180.0854(2)(b) of the Wisconsin Statutes. 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.
(b) Authorizations of payments under this section shall be made by the
persons specified in Section 7.6.
7.8 Insurance. The Corporation may purchase and maintain insurance to
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indemnify it against the whole or any portion of the liability assumed by it in
accordance with this Article and may also procure insurance, in such amounts as
the Board of Directors may determine, on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, limited liability company, joint venture,
trust, employee benefit plan or other enterprise, against any liability asserted
against or incurred by him in any such capacity or arising from his status as
such, whether or not the Corporation would have power to indemnify him against
such liability under the provisions of this Article.
7.9 Additional Indemnification. Every reference herein to directors,
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officers, employees or agents shall include former directors, officers,
employees and agents and their respective heirs, executors and administrators.
The indemnification hereby provided and provided hereafter pursuant to the power
hereby conferred by this Article on the Board of Directors shall not be
exclusive of any other rights to which any person may be entitled, including any
right under policies of insurance that may be purchased and maintained by the
Corporation or others, with respect to claims, issues or matters in relation to
which the Corporation would not have the power to indemnify such person under
the provisions of this Article. Such rights shall not prevent or restrict the
power of the Corporation to make or provide for any further indemnity, or
provisions for determining entitlement to indemnity, pursuant to one or more
indemnification agreements, bylaws, or other arrangements (including, without
limitation, creation of trust funds or security interests funded by letters of
credit or other means) approved by the Board of Directors (whether or not any of
the directors of the Corporation shall be a party to or beneficiary of any such
agreements, bylaws or arrangements); provided, however, that any provision of
such agreements, bylaws or other arrangements shall not be effective if and to
the extent that it is determined to be contrary to this Article or applicable
laws of the State of Wisconsin.
7.10 Severability. Each provision of this Article shall be severable,
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and an adverse determination as to any such provision shall in no way affect the
validity of any other provision.
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ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 Seal. No seal shall be required in connection with the execution
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by the Corporation of any deed, lease, mortgage, agreement, instrument or other
document.
8.2 Fiscal Year. The fiscal year of the Corporation shall end on such
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date and shall consist of such accounting periods as may be fixed by the Board
of Directors.
8.3 Checks, Notes and Drafts. Checks, notes, drafts and other orders
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for the payment of money shall be signed by such persons as the Board of
Directors from time to time may authorize. When the Board of Directors so
authorizes, however, the signature of any such person may be a facsimile.
8.4 Amendment of Bylaws. These Bylaws may be amended or altered at any
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meeting of the Board of Directors; provided that the provisions of Section 2.6
and 3.2 may only be amended by the Class B Shareholders for so long as such
Shares are outstanding. However, subject to the preceding sentence, until the
Listing, the holders of the Class B Common Stock shall have the power to
rescind, amend, alter or repeal any Bylaws and to enact Bylaws which, if
expressly so provided, may not be amended, altered or repealed by the Board of
Directors, and thereafter the holders of the Class A Shares shall have such
authority.
8.5 Voting of Shares Held. Unless otherwise provided by resolution of
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the Board of Directors or of the Executive Committee, if any, the President may
from time to time appoint an attorney or attorneys or agent or agents of the
Corporation, in the name and on behalf of the Corporation, to cast the vote
which the Corporation may be entitled to cast as a shareholder or otherwise in
any other corporation, partnership, limited liability company or joint venture,
any of whose securities may be held by the Corporation, at meetings of the
holders of the shares or other securities of such other corporation,
partnership, limited liability company or joint venture or to consent in writing
to any action by any such other corporation, partnership, limited liability
company or joint venture; and the President shall instruct the person or persons
so appointed as to the manner of casting such votes or giving such consent and
may execute or cause to be executed on behalf of the Corporation, and under its
corporate seal or otherwise, such written proxies, consents, waivers or other
instruments as may be necessary or proper in the premises. In lieu of such
appointment the President may himself attend any meetings of the holders of
shares or other securities of any such other corporation, partnership, limited
liability company or joint venture and there vote or exercise any or all power
of the Corporation as the holder of such shares or other securities of such
other corporation, partnership, limited liability company or joint venture.
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