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BRIGGS & STRATTON CORPORATION AND SUBSIDIARIES
2000 ANNUAL REPORT ON FORM 10-K
EXHIBIT NO. 3.2
BYLAWS
OF
BRIGGS & STRATTON CORPORATION
AS AMENDED AUGUST 2, 2000
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TABLE OF CONTENTS
ARTICLE I. OFFICES; RECORDS
1.01 Principal and Business Offices 1
1.02 Registered Office 1
1.03 Corporate Records 1
ARTICLE II. SHAREHOLDERS
2.01 Annual Meeting 1
2.02 Special Meetings 2
2.03 Place of Meeting 3
2.04 Notices to Shareholders 3
(a) Required Notice 3
(b) Adjourned Meeting 3
(c) Waiver of Notice 3
(d) Contents of Notice 3
(e) Fundamental Transactions 3
2.05 Fixing of Record Date 4
2.06 Shareholder List 5
2.07 Quorum 5
2.08 Conduct of Meetings 5
2.09 Proxies 5
2.10 Voting of Shares 6
ARTICLE III. BOARD OF DIRECTORS
3.01 General Powers 6
3.02 Resignations and Qualifications 6
3.03 Regular Meetings 6
3.04 Special Meetings 6
3.05 Meetings By Telephone or Other Communication Technology 6
3.06 Notice of Meetings 7
3.07 Quorum 7
3.08 Manner of Acting 7
3.09 Conduct of Meetings 7
3.10 Vacancies 7
3.11 Compensation 7
3.12 Presumption of Assent 8
3.13 Committees 8
ARTICLE IV. OFFICERS
4.01 Appointment 8
4.02 Resignation and Removal 8
4.03 Vacancies 9
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4.04 Chairman of the Board 9
4.05 President 9
4.06 Shared Duties of Chairman of the Board and President 9
4.07 Executive Vice Presidents and Vice Presidents 9
4.08 Secretary 9
4.09 Treasurer 9
4.10 Assistants and Acting Officers 10
4.11 Salaries 10
ARTICLE V. CERTIFICATES FOR SHARES AND THEIR TRANSFER
5.01 Certificate for Shares 10
5.02 Signature by Former Officer, Transfer Agent or Registrar 10
5.03 Transfer of Shares 10
5.04 Restrictions on Transfer 10
5.05 Lost, Destroyed or Stolen Certificates 11
5.06 Consideration for Shares 11
5.07 Stock Regulations 11
ARTICLE VI. WAIVER OF NOTICE
6.01 Shareholder Written Waiver 11
6.02 Shareholder Waiver by Attendance 11
6.03 Director Written Waiver 11
6.04 Director Waiver by Attendance 11
ARTICLE VII. ACTION WITHOUT MEETINGS
7.01 Director Action Without Meeting 12
ARTICLE VIII. INDEMNIFICATION
8.01 Indemnification for Successful Defense 12
8.02 Other Indemnification 12
8.03 Written Request 12
8.04 Nonduplication 13
8.05 Determination of Right to Indemnification 13
8.06 Advance of Expenses 14
8.07 Nonexclusivity 14
8.08 Court-Ordered Indemnification 15
8.09 Indemnification and Allowance of Expenses of Employees and Agents 15
8.10 Insurance 15
8.11 Securities Law Claims 15
8.12 Liberal Construction 16
8.13 Definitions Applicable to This Article 16
ARTICLE IX. SEAL
ARTICLE X. AMENDMENTS
10.01 By Shareholders 17
10.02 By Directors 17
10.03 Implied Amendments 17
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BYLAWS
OF
BRIGGS & STRATTON CORPORATION
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. 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 office of the
registered agent of the corporation shall be identical to such registered
office.
1.03. Corporate Records. The following documents and 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.
(f) Current Bylaws.
(g) Written waivers of notice by shareholders or directors (if
any).
(h) Written consents by shareholders or directors for actions
without a meeting (if any).
(i) Voting trust agreements (if any).
(j) Stock transfer agreements to which the corporation is a party
or of which it has notice (if any).
(k) Consents by shareholders and directors.
ARTICLE II. SHAREHOLDERS
2.01. Annual Meeting. The annual meeting of the shareholders shall be
held on the third Wednesday of October of each year at 2:00 p.m. Central
Daylight Time, 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
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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 adjournment thereof, the Board of
Directors shall cause the election to be held at a meeting of the shareholders
as soon thereafter as may be convenient.
At an annual meeting of the shareholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be (a) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the board
of directors, (b) otherwise brought before the meeting by or at the direction of
the board of directors, or (c) brought before the meeting by a shareholder
pursuant to this bylaw.
Only persons who are nominated in accordance with the procedures set
forth in this bylaw shall be eligible for election as directors. Nominations of
persons for election to the board of directors of the corporation may be made at
a meeting of shareholders by or at the direction of the board of directors or by
any shareholder of the corporation entitled to vote for the election of
directors at the meeting who complies with the procedures set forth in this
bylaw.
For business to be properly brought before an annual meeting by a
shareholder, and for nominations by shareholders for the election of directors,
the shareholder must have given timely notice thereof in writing to the
Secretary of the corporation. All notices given pursuant to this Section shall
be in writing and must be received by the Secretary of the corporation not later
than ninety days prior to the anniversary date of the annual meeting of
shareholders in the immediately preceding year. All such notices shall include
(i) a representation that the person sending the notice is a shareholder of
record and will remain such through the record date for the meeting, (ii) the
name and address, as they appear on the corporation's books, of such
shareholder, (iii) the class and number of the corporation's shares which are
owned beneficially and of record by such shareholder, and (iv) a representation
that such shareholder intends to appear in person or by proxy at such meeting to
make the nomination or move the consideration of other business set forth in the
notice. Notice as to proposals with respect to any business to be brought before
the meeting other than election of directors shall also set forth the text of
the proposal and may set forth any statement in support thereof that the
shareholder wishes to bring to the attention of the corporation, and shall
specify any material interest of such shareholder in such business. Notice as to
nominations shall set forth the name(s) of the nominee(s), address(es) of each,
a description of all arrangements or understandings between the shareholder and
each nominee and any person or persons (naming such person or persons) pursuant
to which the nomination or nominations are to be made by the shareholder, the
written consent of each nominee to serve as a director if so elected and such
other information as would be required to be included in a proxy statement
soliciting proxies for the election of the nominee(s) of such shareholder.
The chairman of the meeting shall refuse to acknowledge the nomination
of any person or the consideration of any business not made in compliance with
the foregoing procedures.
2.02. Special Meetings. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by statute, may be called by
the Chairman of the Board, the President or a majority of 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.
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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 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 Article of
Incorporation), by or at the direction of the Chairman of the Board, if
there is one, the President or the Secretary, to each shareholder
entitled to vote at such meeting or, for the fundamental transactions
described in subsections (e)(1) to (4) below (for which the Wisconsin
Business Corporation Law requires that notice be given to shareholders
not entitled to vote), to all shareholders. For purposes of this
Section 2.04, notice by "electronic transmission" (as defined in the
Wisconsin Business Corporation Law) is written notice. Written notice
is effective:
(1) When mailed, if mailed postpaid and addressed to the
shareholder's address shown in the corporation's current record
of shareholders.
(2) When electronically transmitted to the shareholder in a
manner authorized by the shareholder.
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 for which shareholder approval is required
by law, 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 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 these
Bylaws, in the Articles of Incorporation, or 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: (1) a proposed amendment to the Articles
of Incorporation (including any restated articles); (2) a plan of
merger or share exchange for which shareholder approval is required by
law; (3) the sale, lease, exchange or other disposition of all or
substantially all of the corporation's property, with or without
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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 or a copy of the restated articles that
identifies any amendment or other change; (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.
2.05. Fixing of Record Date. The Board of Directors may fix in advance
a date as the record date for any determination of shareholders entitled to
notice of a shareholders' 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 or to
notice of or to vote at a meeting of shareholders, (a) the close of business on
the day before the corporation receives the first written demand for a
shareholder meeting, or (b) the close of business on the day before the first
notice of the meeting is mailed or otherwise delivered to shareholders, 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.
In order that the corporation may determine the shareholders entitled
to consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten (10) days after the date
upon which the resolution fixing the record date is adopted by the Board of
Directors. Any shareholder of record seeking to have the shareholders authorize
or take corporate action by written consent shall, by written notice to the
Secretary, request the Board of Directors to fix the record date. The Board of
Directors shall promptly, but in all events within ten (10) days after the date
on which such a request is received, adopt a resolution fixing the record date.
If no record date has been fixed by the Board of Directors within ten (10) days
of the date on which such a request is received, the record date for determining
shareholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is required by
applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
corporation by delivery to its registered office in the State of Wisconsin, its
principal place of business, or any officer or agent of the corporation having
custody of the book in which proceedings of meetings of shareholders are
recorded. Delivery made to the corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by applicable law, the record date for determining
shareholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the date on which the Board of
Directors adopts a resolution taking such prior action.
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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 list, 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 shall
not affect the validity of any action taken at such meeting.
2.07. Quorum. Except as otherwise provided in the Articles of
Incorporation or in the Wisconsin Business Corporation Law, 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. 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 or, in his or her
absence, the President, and, in the President's absence, any Officer or Director
chosen by the shareholders present or represented by proxy shall call the
meeting of the shareholders to order and shall act as Chairman 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 as provided in the Wisconsin
Business Corporation Law. The means by which a shareholder or the shareholder's
authorized officer, director, employe, agent or attorney-in-fact may authorize
another person to act for the shareholder by appointing the person as proxy
include:
(a) Appointment of a proxy in writing by signing or causing the
shareholder's signature to be affixed to an appointment form by any
reasonable means, including, but not limited to, by facsimile
signature.
(b) Appointment of a proxy by transmitting or authorizing the
transmission of an electronic transmission of the appointment to the
person who will be appointed as proxy or to a proxy solicitation firm,
proxy support service organization or like agent authorized to receive
the transmission by the person who will be appointed as proxy. Every
electronic transmission shall contain, or be accompanied by,
information that can be used to reasonably determine that the
shareholder transmitted or authorized the transmission of the
electronic transmission. Any person charged with determining whether a
shareholder transmitted or authorized the transmission of the
electronic transmission shall specify the information upon which the
determination is made.
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An appointment of a proxy is effective when a signed appointment form
or an electronic transmission of the appointment is received by the inspector of
election or the officer or agent of the corporation authorized to tabulate
votes. An appointment is valid for 11 months unless a different period is
expressly provided in the appointment. An appointment of a proxy is revocable
unless the appointment form or electronic transmission states that it is
irrevocable and the appointment is coupled with an interest. The presence of a
shareholder who has made an effective proxy appointment shall not of itself
constitute a revocation. The Board of Directors shall have the power and
authority to make rules that are not inconsistent with the Wisconsin Business
Corporation Law as to the validity and sufficiency of proxy appointments.
2.10. Voting of Shares. Each outstanding share shall be entitled to one
(1) vote on each matter submitted to a vote at a meeting of shareholders, except
to the extent that the voting rights of the shares are enlarged, limited or
denied by the Articles of Incorporation or the Wisconsin Business Corporation
Law. 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.
ARTICLE III. BOARD OF DIRECTORS
3.01. General Powers. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of the corporation shall be
managed under the direction of, its Board of Directors.
3.02. Resignations and Qualifications. A director may resign at any
time by delivering a written resignation to the Board of Directors, to the
Chairman of the Board (if there is one), or to the corporation through the
Secretary or otherwise. Directors need not be residents of the State of
Wisconsin or shareholders of the corporation. Anything in the Section
notwithstanding, no director shall serve beyond the annual meeting of
shareholders following his attainment of age 70.
3.03. Regular Meetings. The Board of Directors may provide, by
resolution, the time and place, either within or without the State of Wisconsin,
for the holding of regular meetings without other notice than such resolution.
3.04. Special Meetings. Special meetings of the Board of Directors may
be called by or at the request of the Chairman of the Board, the President or
any two (2) directors. Special meetings of any committee may be called by or at
the request of the foregoing persons or the Chairman of the committee. The
persons calling any special meeting of the Board of Directors or committee may
fix any place, either within or without the State of Wisconsin, as the place for
holding any special meeting called by them, and if no other place is fixed the
place of meeting shall be the principal 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.
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(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.
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
special 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. For purposes of this Section 3.06, notice by electronic transmission is
written notice. The notice need not describe the purpose of the meeting. Notice
may be communicated in person, by mail or other method of delivery (meaning any
method of delivery used in conventional commercial practice, including delivery
by hand, mail, commercial delivery and "electronic transmission," as defined in
the Wisconsin Business Corporation Law); by telephone, including voice mail,
answering machine or answering service; or by any other electronic means. Oral
notice is effective when communicated. Written notice is effective as follows:
If delivered in person or by commercial delivery, 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; if given by telegraph, when delivered to the telegraph
company; and if given by electronic transmission, when electronically
transmitted to the director in a manner authorized by the director.
3.07. Quorum. Except as otherwise provided by the Wisconsin Business
Corporation Law, a majority of the number of directors specified in accordance
with the Articles of Incorporation shall constitute a quorum of the Board of
Directors. Except as otherwise provided by the Wisconsin Business Corporation
Law, a majority of the number of directors appointed to serve on a committee
shall constitute a quorum of the committee.
3.08. Manner of Acting. Except as otherwise provided by the Wisconsin
Business Corporation Law or the Articles of Incorporation, the affirmative vote
of a majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors or any committee thereof.
3.09. Conduct of Meetings. The Chairman of the Board, or in his or her
absence, the President, and in the President's absence, any director 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 shall
be filled in the manner provided in the Articles of Incorporation.
3.11. Compensation. The Board of Directors, irrespective of any
personal interest of any of its members, may fix the compensation of directors.
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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. Unless the Articles of Incorporation otherwise
provide, the Board of Directors, by resolution adopted by the affirmative vote
of a majority of all the directors then in office, may create one (1) or more
committees, each committee to consist of two (2) 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,
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 the Wisconsin Business Corporation Law requires 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, amend or repeal Bylaws; (f) approve a plan of merger
not requiring shareholder approval; (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 by the
Chairman of the Board, if there is one, the President or upon request by the
Chairman of such meeting. Each such committee shall fix its own rules
(consistent with the Wisconsin Business Corporation Law, the Articles of
Incorporation and these Bylaws) 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.
ARTICLE IV. OFFICERS
4.01. Appointment. The principal officers may include a Chairman of the
Board, a President, one or more Executive Vice Presidents or Vice Presidents
(the number and designations to be determined by the Board of Directors), a
Secretary, a Treasurer 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 shall hold office until he or
she resigns, dies, is removed hereunder, or a different person is appointed to
the office. An 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 may be removed by the
Board of Directors with or without cause and notwithstanding the contract
rights, if any, of the person removed. Except as provided in the preceding
sentence, the resignation or removal is subject to any remedies provided by any
contract between the officer and the corporation or otherwise provided by law.
Appointment shall not of itself create contract rights.
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4.03. Vacancies. A vacancy in any office because of death, resignation,
removal or otherwise, may 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. Chairman of the Board. The Chairman of the Board shall be the
chief executive officer of the corporation; he shall preside at all meetings of
the shareholders and Board of Directors; he shall have general and active
management of the business of the corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect.
4.05. President. The President shall be the chief operating officer of
the corporation. He shall supervise the day to day operations of the
corporation's business. In the absence of the Chairman of the Board, or in the
event that that office is for any reason vacant, the President shall perform the
functions of the Chairman of the Board. The President shall perform such other
duties as may be prescribed from time to time by the Chairman of the Board or
the Board of Directors.
4.06. Shared Duties of Chairman of the Board and President. The
Chairman of the Board and the President are each severally authorized to sign,
execute and acknowledge, on behalf of the corporation, all deeds, mortgages,
bonds, stock certificates, contracts, leases, reports and all other documents or
instruments necessary or proper to be executed in the course of the
corporation's regular business, or which shall be authorized by resolution of
the Board of Directors; and, except as otherwise provided by law or directed by
the Board of Directors, the Chairman of the Board and the President may
authorize any Executive Vice President or 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.
4.07. Executive Vice Presidents and Vice Presidents. Any Executive Vice
President or Vice President may sign, with the 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 Chairman of the Board or the Board of Directors. The execution of
any instrument of the corporation by any Executive Vice President or Vice
President shall be conclusive evidence, as to third parties, of the Executive
Vice President or Vice President's authority to act in the stead of the
President.
4.08. 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 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 as from time to time may be delegated or
assigned to him or her by the President or Chairman of the Board or by the Board
of Directors.
4.09. Treasurer. The Treasurer shall: (a) have charge and custody of
and be 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 depositories 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
Chairman of the Board or by the Board of Directors.
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4.10. Assistants and Acting Officers. The Board of Directors and the
Chairman of the Board shall have the power to appoint any person to act as
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 Chairman of the
Board 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 Chairman of the Board.
4.11. 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 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 variations for future series, or (b) a
conspicuous statement that the corporation will furnish the shareholder the
information described in clause (a) on request, in writing and without charge.
Such certificates shall be signed, either manually or in facsimile, by the
Chairman of the Board, the President, an Executive Vice President or a Vice
President and by the 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 Officer, Transfer Agent or Registrar. In case
any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon any certificate for shares has ceased to be such
officer, transfer agent or registrar 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, transfer agent or registrar 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.
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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 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.
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, including the appointment or designation of one or more stock
transfer agents and one or more registrars.
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.
6.03. Director Written Waiver. A director 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, 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 twenty (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 that his or her conduct
was lawful or no reasonable cause to believe that his or her
conduct was unlawful.
(3) A transaction from which the director or officer derived
an improper personal profit.
(4) Willful 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.
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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 two
(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. (1) or, if unable to obtain such a quorum or committee, by a
majority vote of the full Board of Directors, including directors
who are parties to the same or related proceedings.
(3) By a panel of three (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 two (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).
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(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 ten (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 ten (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 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
proceedings for which indemnification or an allowance of expenses is
sought may not participate in a determination under this subsection.
(c) Sections 8.01 to 8.14 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 she is not a
party.
(2) As a plaintiff or petitioner in a proceeding because he
or she is or was an employe, agent, director or officer of the
corporation.
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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 shall 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 and Allowance of Expenses of Employes and Agents.
The corporation shall indemnify an employe of the corporation 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 employe was a party
because he or she was an employe of the corporation. In addition, the
corporation may indemnify and allow reasonable expenses of an employe or agent
who is not a director or officer of the corporation to the extent provided by
the Articles of Incorporation or these Bylaws, by general or specific action of
the Board of Directors or by contract.
8.10. lnsurance. The corporation may purchase and maintain insurance on
behalf of an individual who is an employe, agent, director or officer of the
corporation against liability asserted against or incurred by the individual in
his or her capacity as an employe, 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,
8.07 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.
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8.12. Liberal Construction. In order for the corporation to obtain and
retain qualified directors, officers and employes, the foregoing provisions
shall be liberally administered in order to afford maximum indemnification of
directors, officers and, where Section 8.09 of these Bylaws applies, employes.
The indemnification above provided for shall be granted in all applicable cases
unless to do so would clearly contravene law, controlling precedent or public
policy.
8.13. Definitions Applicable to this Article. For purposes of this
Article:
(a) "Affiliate" shall include, without limitation, any
corporation, partnership, joint venture, employe 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.
(c) "Director or officer" means any of the following:
(1) An individual who is or was a director or officer of
this corporation.
(2) An individual 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) An individual 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, employe
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 an individual 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 Article VII of
the Articles of Incorporation.
10.02. By Directors. Except as the Articles of Incorporation may
otherwise provide, these Bylaws may also be amended or repealed and new Bylaws
may be adopted by the Board of Directors by the vote provided in Section 3.08,
but (a) no Bylaw adopted by the shareholders shall be amended, repealed or
readopted by the Board of Directors if the Bylaw so adopted so provides and (b)
a Bylaw adopted or amended by the shareholders that fixes a greater or lower
quorum requirement or a greater voting requirement for the Board of Directors
than otherwise is provided in the Wisconsin Business Corporation Law may not be
amended or repealed by the Board of Directors unless the Bylaw expressly
provides that it may be amended or repealed by a specified vote of the Board of
Directors. Action by the Board of Directors to adopt or amend a Bylaw that
changes the quorum or voting requirement for the Board of Directors must meet
the same quorum requirement and be adopted by the same vote required to take
action under the quorum and voting requirement then in effect, unless a
different voting requirement is specified as provided by the preceding sentence.
A Bylaw that fixes a greater or lower quorum requirement or a greater voting
requirement for shareholders or voting groups of shareholders than otherwise is
provided in the Wisconsin Business Corporation Law may not be adopted, amended
or repealed by the Board of Directors.
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 a vote that would be
sufficient 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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