CONFORMED
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended: March 31, 2000
----------------
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
Commission file number: 1-7626
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UNIVERSAL FOODS CORPORATION
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(Exact name of registrant as specified in its charter)
Wisconsin 39-0561070
- ------------------------------- ---------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
777 East Wisconsin Avenue, Milwaukee, Wisconsin 53202-5304
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(Address of principal executive offices)
Registrant's telephone number, including area code: (414) 271-6755
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433 East Michigan Street, Milwaukee, Wisconsin 53202
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(Former name, former address and former fiscal year, if changed since last
report.)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or such shorter period that the
Registrant was required to file such reports) and (2) has been subject to
such filing requirements for at least the past 90 days.
Yes X No
---- ----
Indicate the number of shares outstanding of each of the issuer's classes
of Common Stock as of the latest practicable date.
Class Outstanding at April 30, 2000
- --------------------------------------- -----------------------------
Common Stock, par value $0.10 per share 49,656,470 shares
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<PAGE>
UNIVERSAL FOODS CORPORATION
INDEX
<TABLE>
<CAPTION>
Page No.
--------
<S> <C>
PART I. FINANCIAL INFORMATION:
Item 1. Financial Statements:
Consolidated Condensed Balance Sheets
- March 31, 2000 and September 30, 1999. 1
Consolidated Condensed Statements of Earnings
- Three and Six Months Ended March 31, 2000 and 1999. 2
Consolidated Condensed Statements of Cash Flows
- Six Months Ended March 31, 2000 and 1999. 3
Notes to Consolidated Condensed Financial Statements. 4
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations. 6
Item 3. Quantitative and Qualitative Disclosures About
Market Risk. 7
PART II. OTHER INFORMATION:
Item 4. Submission of Matters to a Vote of Security Holders. 8
Item 6. Exhibits and Reports on Form 8-K. 9
SIGNATURES. 10
EXHIBIT INDEX. 11
</TABLE>
<PAGE>
PART I
FINANCIAL INFORMATION
<PAGE>
UNIVERSAL FOODS CORPORATION
CONSOLIDATED CONDENSED BALANCE SHEETS
(In thousands)
<TABLE>
<CAPTION>
March 31, September 30,
2000 1999
---------- ----------
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ 2,319 $ 4,645
Trade accounts receivable 141,256 143,435
Inventories 222,049 217,217
Prepaid expenses and other current
assets 36,508 39,273
---------- ----------
TOTAL CURRENT ASSETS 402,132 404,570
INVESTMENTS AND OTHER ASSETS 72,432 69,521
INTANGIBLES 314,094 278,309
PROPERTY, PLANT AND EQUIPMENT:
Cost:
Land and buildings 173,478 172,656
Machinery and equipment 519,787 509,107
---------- ----------
693,265 681,763
Less accumulated depreciation 307,486 291,455
---------- ----------
385,779 390,308
---------- ----------
TOTAL ASSETS $1,174,437 $1,142,708
========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Short-term borrowings $164,111 $51,464
Accounts payable and accrued expenses 108,961 140,119
Salaries, wages and withholdings from
employees 13,982 16,777
Income taxes 21,317 23,849
Current maturities of long-term debt 9,491 9,484
---------- ----------
TOTAL CURRENT LIABILITIES 317,862 241,693
DEFERRED INCOME TAXES 27,654 28,446
OTHER DEFERRED LIABILITIES 20,499 20,912
ACCRUED EMPLOYEE AND RETIREE BENEFITS 34,453 34,678
LONG-TERM DEBT 337,451 385,397
SHAREHOLDERS' EQUITY:
Common stock 5,396 5,396
Additional paid-in capital 73,452 74,524
Earnings reinvested in the business 495,843 470,253
---------- ----------
574,691 550,173
Less: Treasury stock, at cost 85,470 71,309
Accumulated other comprehensive
income 50,964 45,278
Other 1,739 2,004
---------- ----------
TOTAL SHAREHOLDERS' EQUITY 436,518 431,582
---------- ----------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $1,174,437 $1,142,708
========== ==========
</TABLE>
See accompanying notes to consolidated condensed financial statements.
-1-
<PAGE>
UNIVERSAL FOODS CORPORATION
CONSOLIDATED CONDENSED STATEMENTS OF EARNINGS
(In thousands except per share amounts)
<TABLE>
<CAPTION>
Three Months Six Months
Ended March 31 Ended March 31
-------------- --------------
2000 1999 2000 1999
----- ----- ----- -----
<S> <C> <C> <C> <C>
Revenue $234,990 $219,914 $469,874 $437,449
Cost of products sold 153,347 143,777 305,398 285,624
Selling and administrative
expenses 48,135 41,152 96,007 85,631
-------- -------- -------- --------
Operating income 33,508 34,985 68,469 66,194
Interest expense 8,067 6,149 15,216 11,906
-------- -------- -------- --------
Earnings before income taxes 25,441 28,836 53,253 54,288
Income taxes 5,092 9,804 14,407 18,381
-------- -------- -------- --------
Net earnings $ 20,349 $ 19,032 $ 38,846 $ 35,907
======== ======== ======== ========
Average number of common
shares outstanding:
Basic 49,530 50,678 49,812 50,858
====== ====== ====== ======
Diluted 49,777 51,278 50,121 51,507
====== ====== ====== ======
Earnings per common share:
Basic $ .41 $ .38 $ .78 $ .71
====== ====== ====== ======
Diluted $ .41 $ .37 $ .78 $ .70
====== ====== ====== ======
Dividends per common share $.1325 $.1325 $ .265 $ .265
====== ====== ====== ======
</TABLE>
See accompanying notes to Consolidated Condensed Financial Statements.
-2-
<PAGE>
UNIVERSAL FOODS CORPORATION
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(In thousands)
<TABLE>
<CAPTION>
Six Months Ended
March 31
-----------------
2000 1999
---- ----
<S> <C> <C>
Net cash provided by operating activities $22,685 $31,959
Cash flows from investing activities:
Acquisition of property, plant and equipment (23,947) (21,266)
Acquisition of new businesses (net of cash
acquired) (44,206) (23,381)
Other items, net (772) (1,973)
-------- --------
Net cash used in investing activities (68,925) (46,620)
Cash flows from financing activities:
Proceeds from additional borrowings 118,859 155,715
Reduction in debt (46,549) (100,549)
Purchase of treasury stock (22,154) (22,242)
Dividends (13,256) (13,513)
Proceeds from options exercised and other 6,919 2,477
-------- --------
Net cash provided by financing activities 43,819 21,888
Effect of exchange rate changes on cash and
cash equivalents 95 (11)
-------- --------
Net (decrease) increase in cash and cash
equivalents (2,326) 7,216
Cash and cash equivalents at beginning of
period 4,645 1,632
-------- --------
Cash and cash equivalents at end of period $ 2,319 $ 8,848
======== ========
Supplemental disclosure of cash flow information:
Cash paid during the period for:
Interest $17,570 $11,488
Income taxes 14,581 11,392
Liabilities assumed in acquisitions $ 1,841 $ -
</TABLE>
See accompanying notes to consolidated condensed financial statements.
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<PAGE>
UNIVERSAL FOODS CORPORATION
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
1. In the opinion of the Company, the accompanying unaudited consolidated
condensed financial statements contain all adjustments (consisting of
only normal recurring accruals) necessary to present fairly the
financial position of the Company as of March 31, 2000 and September
30, 1999 and the results of operations for the three and six month
periods ended March 31, 2000 and 1999 and cash flows for the six month
periods ended March 31, 2000 and 1999. The results of operations for
any interim period are not necessarily indicative of the results to be
expected for the full fiscal year.
2. Refer to the footnotes in the Company's annual financial statements
for the year ended September 30, 1999, for a description of the
accounting policies, which have been continued without change, and
additional details of the Company's financial condition. The details
in those notes have not changed except as a result of normal
transactions in the interim.
3. Expenses are charged to operations in the year incurred. However, for
interim reporting purposes, certain of these expenses are charged to
operations based on an estimate rather than as expenses are actually
incurred.
4. At March 31, 2000 and September 30, 1999, inventories included
finished and in-process products totaling $149,332,000 and
$159,117,000, respectively, and raw materials and supplies of
$72,717,000 and $58,100,000, respectively.
5. During the six months ended March 31, 2000 and 1999, the Company
repurchased 1,125,000 and 1,084,000 shares of common stock for an
aggregate price of $22,154,000 and $24,345,000, respectively.
6. For the six months ended March 31, 2000, depreciation and amortization
were $23,529,000 and $4,640,000, respectively. For the six months
ended March 31, 1999, depreciation and amortization were $21,469,000
and $3,431,000, respectively.
7. The components of comprehensive income for the periods presented are
as follows (in thousands):
<TABLE>
<CAPTION>
Three Months Six Months
Ended March 31 Ended March 31
-------------- --------------
2000 1999 2000 1999
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net earnings $20,349 $19,032 $38,846 $35,907
Other comprehensive
income (loss):
Foreign currency translation
adjustment (2,998) (2,523) (5,686) (1,805)
-------- -------- -------- --------
Comprehensive income $17,351 $16,509 $33,160 $34,102
======== ======== ======== ========
</TABLE>
There are no reclassification adjustments to be reported.
-4-
<PAGE>
8. Operating results by segment for the periods presented are as follows
(in thousands):
<TABLE>
<CAPTION>
Performance Natural Corporate
Products Products and Other Consolidated
-------- -------- --------- ------------
Quarter ended March 31, 2000
----------------------------
<S> <C> <C> <C> <C>
Revenues from external customers $157,125 $65,039 $12,826 $234,990
Intersegment revenues 11,296 3,071 -- 14,367
-------- ------- --------- --------
Total revenue $168,421 $68,110 $12,826 $249,357
======== ======= ========= ========
Operating profit $ 29,047 $10,402 $(5,941) $33,508
Interest expense -- -- 8,067 8,067
-------- ------- --------- --------
Earning before income taxes $ 29,047 $10,402 $(14,008) $ 25,441
======== ======= ========= ========
Quarter ended March 31, 1999
----------------------------
Revenues from external customers $135,068 $74,201 $ 10,645 $219,914
Intersegment revenues 8,934 2,350 -- 11,284
-------- ------- --------- --------
Total revenue $144,002 $76,551 $ 10,645 $231,198
======== ======= ========= ========
Operating profit $ 24,275 $15,307 $ (4,597) $ 34,985
Interest expense -- -- 6,149 6,149
-------- ------- --------- --------
Earning before income taxes $ 24,275 $15,307 $(10,746) $ 28,836
======== ======= ========= ========
Six months ended March 31, 2000
-------------------------------
Revenues from external customers $306,176 $137,398 $ 26,300 $469,874
Intersegment revenues 21,410 5,689 -- 27,099
-------- ------- --------- --------
Total revenue $327,586 $143,087 $ 26,300 $496,973
======== ======= ========= ========
Operating profit $ 53,962 $ 25,376 $(10,869) $ 68,469
Interest expense -- -- 15,216 15,216
-------- ------- --------- --------
Earning before income taxes $ 53,962 $ 25,376 $(26,085) $ 53,253
======== ======= ========= ========
Six months ended March 31, 1999
-------------------------------
Revenues from external customers $258,737 $157,524 $ 21,188 $437,449
Intersegment revenues 16,320 5,215 -- 21,535
-------- ------- --------- --------
Total revenue $275,057 $162,739 $ 21,188 $458,984
======== ======= ========= ========
Operating profit $ 43,226 $ 32,208 $ (9,240) $ 66,194
Interest expense -- -- 11,906 11,906
-------- ------- --------- --------
Earning before income taxes $ 43,226 $ 32,208 $(21,146) $ 54,288
======== ======= ========= ========
</TABLE>
9. Effective January 1, 2000, the Company acquired for cash the stock of
Dr. Marcus GmbH, a leading manufacturer of natural colors, located in
Hamburg, Germany. Annual revenue is approximately $14,000,000.
10.On January 27, 2000, the Company acquired for cash the remaining
interest in Monarch Food Colors, L.P., located in High Ridge,
Missouri. The Company previously held a 24% ownership interest in
Monarch as a result of the Company's April 1999 purchase of Pointing
Holdings Ltd. Annual revenues for 1999 were just under $10,000,000.
Monarch manufactures colors for the food, pharmaceutical and cosmetic
industries.
11.On February 29, 2000, the Company refinanced $40,000,000 of senior notes
that were due through December 2009 using proceeds from additional short-
term borrowings.
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<PAGE>
ITEM 2.MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
Revenue for the three months ended March 31, 2000 was $234,990,000
compared with $219,914,000 in 1999, a 6.9% increase. Revenue for
the six months ended March 31, 2000 was $469,874,000, an increase of
7.4% over the same period in the prior year. The Performance
Products segment reported increased revenue of 17.0% for the second
quarter and 19.1% year-to-date, offsetting lower revenue in the
Natural Products segment. Gross profit margin was up slightly for
both the quarter and year-to-date. Selling and administrative
expenses increased $6,983,000 and $10,376,000 for the quarter and
six months ended March 31, 2000 compared to the same periods in
1999. Most of the increase in selling and administrative expense is
the result of acquisitions and normal inflationary increases.
Selling and administrative expenses were 20.5% of revenue for the
quarter ended March 31, 2000 compared with 18.7% for the same period
in 1999. Year-to-date selling and administrative expenses were
20.4% of revenue compared to 19.6% in 1999. This increase as a
percentage of sales is primarily due to lower revenue in the Yeast
and Dehydrated Products divisions. For the second quarter of fiscal
2000 operating income decreased 4.2% to $33,508,000. For the six
months ended March 31, 2000, operating income increased to
$68,469,000, or 3.4%, from the prior year. The decrease in
operating income for the second quarter is attributable to lower
revenue in the Natural Products segment.
Interest expense for the second quarter increased to $8,067,000
from $6,149,000 for the same period last year. For the six months
ended March 31, 2000 interest expense increased $3,310,000 to
$15,216,000. The increase in interest expense is a result of
higher average borrowings that were used primarily to fund
acquisitions and working capital requirements.
The effective income tax rate was 20.0% and 27.1%, respectively, for
the three and six months ended March 31, 2000. In the second
quarter of fiscal 2000 the Company recorded a tax benefit resulting
from its decision to close its remaining dehydrated operations in
Ireland. The effective tax rate excluding this benefit would have
been approximately 33.5%.
SEGMENT INFORMATION
Performance Products - The Performance Products segment reported
revenue of $168,421,000 for the second quarter of fiscal 2000, a
17.0% increase. Year-to-date revenues increased 19.1% to
$327,586,000. Color division revenue for the six months was up
36.2% from the prior year reflecting contributions from recent
acquisitions and significant volume increases in several major
product categories, including ink-jets and value-added food colors,
as well as cosmetic and natural colors. Revenue for the Flavor
division was up 9.5% over prior year revenue due to higher worldwide
demand for products. Revenue for all Flavor product categories
increased, with outstanding growth in the dairy product category.
The higher revenue resulted in operating income for the Performance
Products segment increasing 19.7% for the second quarter and 24.8%
year-to-date.
Natural Products - Revenue for the Natural Products segment was
$68,110,000 for the second quarter of fiscal 2000, an 11% decrease
from $76,551,000 for the second quarter of last year. Year-to-date
revenue decreased 12.1% to $143,087,000. An 8.6% decrease in
revenue at the Yeast division was due to competitive price
conditions throughout the yeast industry. Revenue for Dehydrated
Products fell due to lower average selling prices and lower revenue
in Europe resulting from the fiscal 1999 closing of the division's
frozen operation in Ireland. Lower revenue and a 70 basis point
decrease in gross margins resulted in segment operating income
declining 21.1% for the six months ended March 31, 2000, compared to
the prior year. Operating income for the second quarter was down
32.0%.
FINANCIAL CONDITION
The current ratio was 1.3 at March 31, 2000 compared with 1.7 at
September 30, 1999. The decrease is primarily the result of
increased short-term borrowings used to fund acquisitions and the
refinancing of $40,000,000 in senior notes.
-6-
<PAGE>
Net cash provided by operating activities was $22,685,000 for the
six months ended March 31, 2000, compared to $31,959,000 provided
by operating activities for the six months ended March 31, 1999.
The decrease in cash provided by operating activities in fiscal
2000 was primarily due to increased inventories of dehydrated
products and the timing of benefit plan contributions, interest and
taxes as compared to the prior year.
Net cash used in investing activities was $68,925,000 for the six
months ended March 31, 2000 and $46,620,000 for the six months
ended March 31, 1999. Cash used to acquire new businesses was
$44,206,000 for the six months ended March 31, 2000 compared to
$23,381,000 for the same period in 1999. Also included in
investing activities were capital additions of $23,947,000 and
$21,266,000 during fiscal 2000 and 1999, respectively. The capital
expenditure program reflects the Company's continuing commitment to
maintain and enhance product quality, further automate and upgrade
manufacturing processes, and expand the business through internal
growth.
Net cash provided by financing activities was $43,819,000 for the
six months ended March 31, 2000, compared with $21,888,000 in the
comparable period last year. Proceeds from net borrowings of
$72,310,000 during the first six months of fiscal 2000 were used to
fund acquisitions and purchase treasury stock. Dividends of
$13,256,000 and $13,513,000 were paid during fiscal 2000 and 1999,
respectively.
ITEM 3.QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
There have been no material changes in the Company's market risk
during the second quarter ended March 31, 2000. For additional
information on market risk, refer to page 15 of the Company's 1999
Annual Report.
FORWARD-LOOKING INFORMATION
This document contains forward-looking statements that reflect
management's current assumptions and estimates of future economic
circumstances, industry conditions, Company performance and
financial results. The Private Securities Litigation Reform Act of
1995 provides a safe harbor for such forward-looking statements.
Such forward-looking statements are not guarantees of future
performance and involve known and unknown risks, uncertainties and
other factors that could cause actual events to differ materially
from those expressed in those statements. A variety of factors
could cause the Company's actual results and experience to differ
materially from the anticipated results. These factors and
assumptions include the pace and nature of new product
introductions by the Company's customers; execution of the
Company's acquisition program; industry and economic factors
related to the Company's domestic and international business; and
the outcome of various productivity-improvement and cost-reduction
efforts. The Company does not undertake to publicly update or
revise its forward-looking statements even if experience or future
changes make it clear that any projected results expressed or
implied therein will not be realized.
-7-
<PAGE>
PART II
OTHER INFORMATION
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<PAGE>
ITEM 4.SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The information responsive to this item was provided in, and
incorporated by reference from the Company's quarterly report on
Form 10-Q for the quarter ended December 31, 1999, filed on
February 11, 2000.
-8-
<PAGE>
ITEM 6.EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits. (See Exhibit Index following this report.)
(b) No reports on Form 8-K were filed during the quarter ended
March 31, 2000.
-9-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
UNIVERSAL FOODS CORPORATION
Date: May 12, 2000 By: /s/ John L. Hammond
--------------------------------
John L. Hammond, Vice President,
Secretary and General Counsel
Date: May 12, 2000 By: /s/ Michael L. Hennen
---------------------------------
Michael L. Hennen, Vice President
and Controller
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<PAGE>
UNIVERSAL FOODS CORPORATION
EXHIBIT INDEX TO
QUARTERLY REPORT ON FORM 10-Q
FOR THE QUARTER ENDED MARCH 31, 2000
Filed Incorporated by
Exhibit Description Herewith Reference From
- ------- ----------- -------- ---------------
- -
3.1 Universal Foods Corporation Exhibit A to the Registrant's
Amended and Restated Articles Definitive Proxy Statement
of Incorporation adopted filed on Schedule 14A on
January 21, 1999 December 15, 1998
(Commission File No. 1-7626)
3.2 Universal Foods Corporation
Amended and Restated Bylaws,
adopted April 6, 2000 X
27 Financial Data Schedule. X
-11-
<PAGE>
<PAGE> 1
Exhibit 3.2
UNIVERSAL FOODS CORPORATION
AMENDED AND RESTATED BY-LAWS
1. OFFICES
1.1 Business Offices. The principal office of the
corporation in the State of Wisconsin shall be located in the
City of Milwaukee, County of Milwaukee. The corporation may have
such other 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.
1.2 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,
and the address of the registered office may be changed from time
to time by the Board of Directors.
2. SHAREHOLDERS
2.1 Annual Meeting. The date of the annual meeting of
shareholders shall be set by the Board of Directors each year for
the third Thursday after the first Friday of January, or on such
other day as may be designated by the Board of Directors, upon
the recommendation of the Nominating Committee, for the purpose
of electing directors and transacting such other business as may
come before the meeting; provided, however, that any such other
date shall be not later than March 1. In fixing a meeting date
for any annual meeting of shareholders, the Board of Directors
may consider such factors as it deems relevant within the good
faith exercise of its business judgment.
2.2 Purposes of Annual Meeting. At an annual meeting of
shareholders (an "Annual Meeting"), only business properly
brought before the meeting as provided in this Section may be
transacted. To be properly brought before an Annual Meeting,
business must be (i) brought before the meeting by or at the
direction of the Board of
Directors, or (ii) otherwise properly brought before the meeting
by a shareholder of record where the shareholder has complied
with the requirements of this Section. To bring business before
an Annual Meeting, a shareholder must have given written notice
thereof, either by personal delivery or by United States
certified mail, postage prepaid, to the Secretary of the
corporation, that is received by the Secretary not less than
fifty (50) days in advance of the third Thursday after the first
Friday in the month of January next following the last Annual
Meeting held; provided that if the Annual Meeting of shareholders
is held earlier than the third Thursday after the first Friday in
the month of January, such notice must be given on or before the
later of (x) the date fifty (50) days prior to the earlier date
of the Annual Meeting and (y) the date ten (10) business days
after the first public disclosure, which may include any public
filing with the Securities and Exchange Commission or a press
release to Dow Jones & Company or any similar service, of the
earlier date of the Annual Meeting. Any such notice shall set
forth the following as to each matter the shareholder proposes to
bring before the Annual Meeting: (A) a brief description of the
business desired to be brought before the meeting and the reasons
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<PAGE> 2
for conducting such business at the meeting and, if such business
includes a proposal to amend the Amended and Restated Articles of
Incorporation or By-laws of the corporation, the language of the
proposed amendment; (B) the name and address, as they appear on
the corporation's books, of the shareholder proposing such
business and the beneficial owner or owners, if any, on whose
behalf the business is proposed; (C) the class and number of
shares of the corporation which are beneficially owned by such
shareholder and beneficial owner or owners; (D) a representation
that the shareholder is a holder of record of stock of the
corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to propose such
business; and (E) any material interest of the shareholder and
beneficial owner or owners in such business and such persons'
reasons for conducting such business at the meeting. If the
chairman of the shareholders meeting shall determine that
business was not properly brought before the meeting and in
accordance with the provisions of the By-laws, he or she shall so
declare to the meeting and any such business not properly brought
before the meeting shall not be transacted. Notwithstanding the
foregoing provisions of this Section, a shareholder shall also
comply with all applicable requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations
thereunder with respect to the matters set forth in this Section.
2.3 Special Meetings.
(a) A special meeting of the shareholders of the
corporation (a "Special Meeting") may be called only by (i) the
Chairman of the Board, (ii) the Chief Executive Officer, or (iii)
the Board of Directors, and shall be called by the Chairman of
the Board or the Chief Executive Officer upon the written demand,
in accordance with this Section 2.3, of the holders of record of
shares representing at least 10% of all the votes entitled to be
cast on any issue proposed to be considered at the Special
Meeting. Only such business shall be conducted at a Special
Meeting as shall have been described in the notice of meeting
sent to shareholders pursuant to Section 2.5 of these By-laws.
(b) To enable the corporation to determine the
shareholders entitled to demand a Special Meeting, the Board of
Directors may fix a record date to determine the shareholders
entitled to make such a demand (the "Demand Record Date"). The
Demand Record Date shall not precede the date upon which the
resolution fixing the Demand Record Date is adopted by the Board
of Directors and shall not be more than ten (10) days after the
date upon which the resolution fixing the Demand Record Date is
adopted by the Board of Directors. Any shareholder of record
seeking to have shareholders demand a Special Meeting shall, by
written notice to the Secretary of the corporation, request the
Board of Directors to fix a Demand Record Date. The Board of
Directors shall promptly, but in all events within ten (10) days
after the date on which a valid request to fix a Demand Record
Date is received, adopt a resolution fixing the Demand Record
Date and shall make a public announcement of such Demand Record
Date. If no Demand Record Date has been fixed by the Board of
Directors within ten (10) days after the date on which such
request is received by the Secretary, the Demand Record Date
shall be the tenth (10th) day after the first date on which a
valid written request to set a Demand Record Date is received by
the Secretary. To be valid, such written request shall set forth
the purpose or purposes for which the Special Meeting is to be
held, shall be signed by one or more shareholders of record (or
their duly authorized proxies or other representatives), shall
2
<PAGE> 3
bear the date of signature of each such shareholder (or proxy or
other representative) and shall set forth all information about
each such shareholder and about the beneficial owner or owners,
if any, on whose behalf the request is made that would be
required to be set forth in a shareholder's notice described in
Sections 2.2 and 3.9 of these By-laws.
(c) For a shareholder or shareholders to demand a
Special Meeting, a written demand or demands for a Special
Meeting by the holders of record as of the Demand Record Date of
shares representing at least ten percent (10%) of all the votes
entitled to be cast on each issue proposed to be considered at
the Special Meeting must be delivered to the corporation. To be
valid, each written demand by a shareholder for a Special Meeting
shall set forth the specific purpose or purposes for which the
Special Meeting is to be held (which purpose or purposes shall be
limited to the purpose or purposes set forth in the written
request to set a Demand Record Date received by the corporation
pursuant to paragraph (b) of this Section 2.3), shall be signed
by one or more persons who as of the Demand Record Date are
shareholders of record (or their duly authorized proxies or other
representatives), shall bear the date of signature of each such
shareholder (or proxy or other representative), shall set forth
the name and address, as they appear in the corporation's books,
of each shareholder signing such demand and the class or series
and number of shares of the corporation which are owned of record
and beneficially by each such shareholder, shall be sent to the
Secretary by hand or by certified or registered mail, return
receipt requested, and shall be received by the Secretary within
seventy (70) days after the Demand Record Date.
(d) The corporation shall not be required to call a
Special Meeting upon shareholder demand unless, in addition to
the documents required by paragraph (c) of this Section 2.3, the
Secretary receives a written agreement signed by each Soliciting
Shareholder (as defined herein), pursuant to which each
Soliciting Shareholder, jointly and severally, agrees to pay the
corporation's costs of holding the Special Meeting, including the
costs of preparing and mailing proxy materials for the
corporation's own solicitation, provided that if each of the
resolutions introduced by any Soliciting Shareholder at such
meeting is adopted, and each of the individuals nominated by or
on behalf of any Soliciting Shareholder for election as director
at such meeting is elected, then the Soliciting Shareholders
shall not be required to pay such costs. For purposes of this
paragraph (d) the following terms shall have the meanings set
forth below:
(i) "Affiliate" shall have the meaning
assigned to such term in Rule 12b-2
promulgated under the Securities
Exchange Act of 1934, as amended (the
"Exchange Act").
(ii) "Participant" shall have the meaning
assigned to such term in Rule 14a-11
promulgated under the Exchange Act.
(iii) "Person" shall mean any individual,
firm, corporation, partnership, joint
venture, association, trust,
unincorporated organization or other
entity.
(iv) "Proxy" shall have the meaning assigned
to such term in Rule 14a-1 promulgated
under the Exchange Act.
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(v) "Solicitation" shall have the meaning
assigned to such term in Rule 14a-11
promulgated under the Exchange Act.
(vi) "Soliciting Shareholder" shall mean,
with respect to any Special Meeting
demanded by a shareholder or
shareholders, any of the following
Persons:
(A) if the number of shareholders
signing the demand or demands of
meeting delivered to the
corporation pursuant to paragraph
(c) of this Section 2.3 is ten (10)
or fewer, each shareholder signing
any such demand;
(B) if the number of shareholders
signing the demand or demands of
meeting delivered to the
corporation pursuant to paragraph
(c) of this Section 2.3 is more
than ten (10), each Person who
either (I) was a Participant in any
Solicitation of such demand or
demands or (II) at the time of the
delivery to the corporation of the
documents described in paragraph
(c) of this Section 2.3, had
engaged or intended to engage in
any Solicitation of Proxies for use
at such Special Meeting (other than
a Solicitation of Proxies on behalf
of the corporation); or
(C) any Affiliate of a Soliciting Shareholder,
if a majority of the directors of the
corporation then in office determine,
reasonably and in good faith, that such
Affiliate should be required to sign the
written notice described in paragraph
(c) of this Section 2.3 and/or the
written agreement described in this
paragraph (d) in order to prevent the
purposes of this Section 2.3 from being
evaded.
(e) Except as provided in the following sentence, any
Special Meeting shall be held at such hour and day as may be
designated by whichever of the Chairman of the Board, the Chief
Executive Officer or the Board of Directors shall have called
such meeting. In the case of any Special Meeting called by the
Chairman of the Board or the Chief Executive Officer upon the
demand of shareholders (a "Demand Special Meeting"), such meeting
shall be held at such hour and day as may be designated by the
Board of Directors; provided, however, that the date of any
Demand Special Meeting shall be not more than seventy (70) days
after the Meeting Record Date (as defined in Section 2.6); and
provided further that in the event that the directors then in
office fail to designate an hour and date for a Demand Special
Meeting within ten (10) days after the date that valid written
demands for such meeting by the holders of record as of the
Demand Record Date of shares representing at least ten percent
(10%) of all the votes entitled to be cast on each issue proposed
to be considered at the special meeting are delivered to the
corporation (the "Delivery Date"), then such meeting shall be
held at 2:00 P.M. local time on the one hundredth (100th) day
after the Delivery Date, or if such one hundredth (100th) day is
not a Business Day (as defined below), on the first preceding
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Business Day. In fixing a meeting date for any Special Meeting,
the Chairman of the Board, the Chief Executive Officer or the
Board of Directors may consider such factors as he or it deems
relevant within the good faith exercise of his or its business
judgment, including, without limitation, the nature of the action
proposed to be taken, the facts and circumstances surrounding any
demand for such meeting, and any plan of the Board of Directors
to call an Annual Meeting or a Special Meeting for the conduct of
related business.
(f) The corporation may engage independent inspectors
of elections to act as an agent of the corporation for the
purpose of promptly performing a ministerial review of the
validity of any purported written demand or demands for a Special
Meeting received by the Secretary. For the purpose of permitting
the inspectors to perform such review, no purported demand shall
be deemed to have been delivered to the corporation until the
earlier of (i) five (5) Business Days following receipt by the
Secretary of such purported demand and (ii) such date as the
independent inspectors certify to the corporation that the valid
demands received by the Secretary represent at least ten percent
(10%) of all the votes entitled to be cast on each issue proposed
to be considered at the Special Meeting. Nothing contained in
this paragraph shall in any way be construed to suggest or imply
that the Board of Directors or any shareholder shall not be
entitled to contest the validity of any demand, whether during or
after such five (5) Business Day period, or to take any other
action (including, without limitation, the commencement,
prosecution or defense of any litigation with respect thereto).
(g) For purposes of these By-laws, "Business Day"
shall mean any day other than a Saturday, a Sunday or a day on
which banking institutions in the State of Wisconsin are
authorized or obligated by law or executive order to close.
2.4 Place of Meeting. The Board of Directors, the
Chairman of the Board or the Chief Executive Officer may
designate any place, either within or without the State of
Wisconsin, as the place of meeting for the Annual Meeting, any
Special Meeting or any postponement thereof. If the Board of
Directors, the Chairman of the Board or the Chief Executive
Officer shall fail or neglect to make such designation, the
Secretary shall designate the place of such meeting. If no
designation is made, the place of meeting shall be the registered
office of the corporation in the State of Wisconsin. Any
adjourned meeting may be reconvened at any place designated by
vote of the Board of Directors or by the Chairman of the Board or
the Chief Executive Officer.
2.5 Notice of Meeting. The corporation shall send
written or printed notice stating the place, day and hour of any
Annual Meeting or Special Meeting not less than ten (10) days nor
more than sixty (60) days before the date of such meeting either
personally or by mail to each shareholder of record entitled to
vote at such meeting and to other shareholders as may be required
by law or by the Amended and Restated Articles of Incorporation.
In the event of any Demand Special Meeting, such notice of
meeting shall be sent not more than thirty (30) days after the
Delivery Date. If mailed, such notice of meeting shall be
addressed to the shareholder at the shareholder's address as it
appears on the corporation's record of shareholders. Unless
otherwise required by law or the Amended and Restated Articles of
Incorporation, a notice of an Annual Meeting need not include a
description of the purpose for which the meeting is called. In
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the case of any Special Meeting, (a) the notice of meeting shall
describe any business that the Board of Directors shall have
theretofore determined to bring before the meeting and (b) in the
case of a Demand Special Meeting, the notice of meeting (i) shall
describe any business set forth in the statement of purpose of
the demands received by the corporation in accordance with
Section 2.3 of these By-laws and (ii) shall contain all of the
information required in the notice received by the corporation in
accordance with Section 2.3(b) of these By laws. A shareholder's
attendance at a meeting, in person or by proxy, waives objection
to the following: (A) lack of notice or defective notice of the
meeting, unless the shareholder at the beginning of the meeting
or promptly upon arrival objects to holding the meeting or
transacting business at the meeting; and (B) consideration of a
particular matter at 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.
2.6 Fixing of Certain Record Dates.
(a) The Board of Directors may fix a future date not
less than ten (10) days and not more than sixty (60) days prior
to the date of any Annual Meeting or Special Meeting as the
record date for the determination of shareholders entitled to
notice of, or to vote at, such meeting (the "Meeting Record
Date"). In the case of any Demand Special Meeting, (i) the
Meeting Record Date shall be not later than the thirtieth (30th)
day after the Delivery Date and (ii) if the Board of Directors
fails to fix the Meeting Record Date within thirty (30) days
after the Delivery Date, then the close of business on such
thirtieth (30th) day shall be the Meeting Record Date. The
shareholders of record on the Meeting Record Date shall be the
shareholders entitled to notice of and to vote at the meeting.
Except as may be otherwise provided by law, a determination of
shareholders entitled to notice of or to vote at a meeting of
shareholders is effective for any adjournment of such meeting
unless the Board of Directors fixes a new Meeting Record Date,
which it shall do if the meeting is postponed or adjourned to a
date more than one hundred twenty (120) days after the date fixed
for the original meeting.
(b) The Board of Directors may fix a future date as
the record date for the determination of shareholders entitled to
receive payment of any share dividend or distribution. If no
record date is so fixed by the Board of Directors, the record
date for determining shareholders entitled to a distribution
(other than a distribution involving a purchase, redemption or
other acquisition of the corporation's shares) or a share
dividend is the date on which the Board of Directors authorized
the distribution or share dividend, as the case may be.
2.7 Voting Lists. After a record date for a Special
Meeting or Annual Meeting has been fixed, the corporation shall
prepare a list of the names of all of the shareholders entitled
to notice of the meeting. The list shall be arranged by class or
series of shares, if any, and show the address of and number of
shares held by each shareholder. Such list shall be available for
inspection by any shareholder, beginning two business days after
notice of the meeting is given for which the list was prepared
and continuing to the date of the meeting, at the corporation's
principal office or at a place identified in the meeting notice
in the city where the meeting will be held. The corporation
shall make the shareholders' list available at the meeting, and
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any shareholder or his or her agent or attorney may inspect the
list at any time during the meeting or any adjournment thereof.
Refusal or failure to prepare or make available the shareholders'
list shall not affect the validity of any action taken at a
meeting of shareholders.
2.8 Quorum; Votes. Shares entitled to vote as a separate
voting group may take action on a matter at a meeting only if a
quorum of those shares exists with respect to that matter. If
the corporation has only one class of stock outstanding, such
class shall constitute a separate voting group for purposes of
this Section 2.8. Except as otherwise provided in the Amended
and Restated Articles of Incorporation or the Wisconsin Business
Corporation Law, a majority of the votes entitled to be cast on
the matter shall constitute a quorum of the voting group for
action on that matter. Once a share is represented for any
purpose at a meeting, other than for the purpose of objecting to
holding the meeting or transacting business at the meeting, it is
considered present for purposes of determining whether a quorum
exists for the remainder of the meeting and for any adjournment
of that meeting unless a new record date is or must be set for
the adjourned meeting. If a quorum exists, except in the case of
the election of directors, action on a matter shall be approved
if the votes cast within the voting group favoring the action
exceed the votes cast opposing the action, unless the Amended and
Restated Articles of Incorporation or the Wisconsin Business
Corporation Law requires a greater number of affirmative votes.
Unless otherwise provided in the Amended and Restated Articles of
Incorporation, each director shall be elected by a plurality of
the votes cast by the shares entitled to vote in the election of
directors at a meeting at which a quorum is present.
2.9 Proxies. At all meetings of shareholders, a
shareholder entitled to vote may vote his or her shares in person
or by proxy. A shareholder may appoint a proxy to vote or
otherwise act for the shareholder by signing an appointment form,
either personally or by his or her attorney-in-fact. An
appointment of a proxy is effective when received by the
Secretary or other officer or agent of the corporation authorized
to tabulate votes. An appointment is valid for eleven months
from the date of its signing unless a different period is
expressly provided in the appointment form.
2.10 Voting of Shares. Each outstanding share, regardless
of class, shall be entitled to one vote upon each matter
submitted to a vote at a meeting of shareholders, except to the
extent that the voting rights of the shares of any class or
classes are enlarged, limited, or denied by the Amended and
Restated Articles of Incorporation of the corporation or by the
Wisconsin Business Corporation Law.
2.11 Subsidiary Shares. Shares held by another
corporation, if a sufficient number of shares entitled to elect a
majority of the directors of such other corporation is held
directly or indirectly by the corporation, shall not be entitled
to vote at any meeting, but shares held in a fiduciary capacity
may be voted.
2.12 Acceptance of Instruments Showing Shareholder Action.
If the name signed on a vote, consent, waiver or proxy
appointment corresponds to the name of a shareholder, the
corporation, if acting in good faith, may accept the vote,
consent, waiver or proxy appointment and give it effect as the
act of a shareholder. If the name signed on a vote, consent,
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waiver or proxy appointment does not correspond to the name of a
shareholder, the corporation, if acting in good faith, may accept
the vote, consent, waiver or proxy appointment and give it effect
as the act of the shareholder if any of the following apply:
(a) The shareholder is an entity and the name signed
purports to be that of an officer or agent of the entity.
(b) The name purports to be that of a personal
representative, administrator, executor, guardian or conservator
representing the shareholder and, if the corporation requests,
evidence of fiduciary status acceptable to the
corporation is presented with respect to the vote, consent,
waiver or proxy appointment.
(c) The name signed purports to be that of a receiver
or trustee in bankruptcy of the shareholder and, if the
corporation requests, evidence of this status acceptable to the
corporation is presented with respect to the vote, consent,
waiver or proxy appointment.
(d) The name signed purports to be that of a pledgee,
beneficial owner, or attorney-in-fact of the shareholder and, if
the corporation requests, evidence acceptable to the corporation
of the signatory's authority to sign for the shareholder is
presented with respect to the vote, consent, waiver or proxy
appointment.
(e) Two or more persons are the shareholders as
cotenants or fiduciaries and the name signed purports to be the
name of at least one of the co-owners and the person signing
appears to be acting on behalf of all co-owners.
The corporation may reject a vote, consent, waiver or
proxy appointment if the Secretary or other officer or agent of
the
corporation who is authorized to tabulate votes, acting in good
faith, has reasonable basis for doubt about the validity of the
signature on it or about the signatory's authority to sign for
the shareholder.
2.13 Conduct of Meeting. The Chairman of the Board, and
in his or her absence, any officer or director designated by the
Chairman of the Board, and in his or her absence, the Chief
Executive Officer, and in his or her absence, the President, and
in his or her absence, a Vice President in the order provided
under Section 4.7 of these By-laws, and in their absence, any
person chosen by the shareholders present, shall call any Annual
Meeting or Special Meeting to order and shall act as Chairman of
the Meeting, and the Secretary of the corporation shall act as
secretary of any meeting of the shareholders, but in the absence
of the Secretary, the Chairman of the Meeting may appoint any
other person to act as secretary of the meeting.
2.14 Postponement; Adjournment.
(a) Any Annual Meeting or any Special Meeting called
by the Chairman of the Board, the Chief Executive Officer (other
than a Demand Special Meeting) or the Board of Directors may be
postponed at any time or from time to time after written notice
of the meeting has been delivered to shareholders as follows: (i)
in the case of the Annual Meeting or a Special Meeting called by
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the Board of Directors, by action of the Board of Directors or a
duly authorized committee thereof and (ii) in the case of a
Special Meeting called by the Chairman of the Board or the Chief
Executive Officer, at the request of the person calling the
meeting and with the consent of the Board of Directors or a duly
authorized committee thereof. Any such postponement or
postponements shall be disclosed in any public filing with the
Securities and Exchange Commission or by means of a press release
to Dow Jones & Company or any similar service promptly following
such postponement, and promptly thereafter written notice of such
postponement stating the place, day and hour to which the meeting
was postponed shall be delivered to each shareholder of record
entitled to vote at such meeting.
(b) A meeting of shareholders
may be adjourned to a different date, time or place from time to
time, whether or not there is a quorum, (i) at any time, upon a
resolution of shareholders if the number of votes cast in favor
of such resolution exceed the number of votes cast against such
resolution, or (ii) by order of the chairman of the meeting, but
only where such order is delivered before any business is
transacted at such meeting and such adjournment is for a period
of thirty (30) days or less. At such adjourned meeting at which
a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting
originally noticed. Any such adjournment or adjournments
pursuant to clause (i), if the new date, time and place of the
meeting are not announced at the meeting prior to adjournment or
if a new record date is or must be fixed for the meeting, or
pursuant to clause (ii) shall be disclosed in any public filing
with the Securities and Exchange Commission or by means of a
press release to Dow Jones & Company or any similar service
promptly following such adjournment, and promptly thereafter
written notice of such adjournment stating the date, time and
place to which the meeting was adjourned shall be delivered to
each shareholder of record entitled to vote at such meeting,
except that (except as may be otherwise required by law) no such
disclosure in filings, press releases or notices to shareholders
shall be required if an adjournment is for a period of fortyeight
(48) hours or less.
3. BOARD OF DIRECTORS
3.1 General Powers. All corporate powers of
the corporation shall be exercised by or under the authority of,
and the business and affairs of the corporation managed under the
direction of,
its Board of Directors.
3.2 Number, Tenure and Qualifications.
(a) The number of directors of the corporation shall
be eleven (11). No more than two (2) officers or employees of
the corporation or any of its subsidiaries shall simultaneously
serve as directors of the corporation. The directors shall be
divided into three (3) classes with the first class to consist of
three (3) directors and the second and third classes to consist
of four (4) directors each. The term of office of those of the
first class shall expire at the Annual Meeting to be held in
January, 1984, and of the second class one year thereafter and of
the third class, two years thereafter, and in all cases, until
their respective successors shall have been elected and
qualified. At the Annual Meetings following the initial election
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of directors by classes, the successors to the class of directors
whose term expires in that year shall be elected for a term of
three (3) years to succeed those whose terms expire, so that the
term of office of one class of directors shall expire in each
year, but, subject to the provisions of the By-laws of the
corporation, each director shall hold office for the term for
which he or she is elected and until his or her successor is
elected and, if necessary, qualified or until there is a decrease
in the number of directors that takes effect upon or after the
expiration of the term for which he or she is elected.
(b) Directors need not be residents of the State of
Wisconsin or shareholders of the corporation. A director having
attained age seventy (70) shall automatically cease to be a
director of the corporation effective as of the Annual Meeting
immediately following such director's seventieth (70th) birthday.
All directors who are also officers of the corporation shall
automatically cease to be directors of the corporation, effective
as of his or her date of termination of employment from the
corporation, with the exception of any corporate officer holding,
or who has held the position of Chief Executive Officer.
(c) A Chairman of the Board shall be elected by the
Board of Directors from among its members to preside at all
meetings of the shareholders and the Board of Directors. The
Director, who need not be an employee of the corporation, elected
Chairman of the Board shall serve in such position for the term
of office as elected by the shareholders or the Board of
Directors and until his or her successor shall have been duly
elected or until his or her death or until resignation or removal
in the manner hereinafter provided. The Chairman of the Board,
if an employee of the corporation, may be elected Chief Executive
Officer of the corporation by the Board of Directors. The
Chairman of the Board shall perform all duties incident to the
office and such other duties as may be prescribed by the Board of
Directors from time to time.
(d) All directors of the corporation, who are not
simultaneously employed as officers by the corporation, shall be
properly compensated and reimbursed for their services as a
director on the basis of an annual retainer, meeting attendance
fees and reasonable expenses incurred as a director as
established and approved annually by the Board of Directors upon
the recommendation of the Nominating Committee. Any employee of
the corporation, who is elected a director of the corporation,
shall not receive any compensation, expense reimbursement or
participation in director benefit programs for his or her
services as a director of the corporation. A Chief Executive
Officer, who retires from the corporation prior to attaining age
seventy (70) while serving as a director, immediately becomes
eligible for compensation, expense reimbursement and director
benefit program participation as a non-employee director
effective as of the individual's retirement date from the
corporation.
3.3 Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this By-law
immediately after, and at the same place as, the Annual Meeting
of shareholders, and each adjourned session thereof. The Board
of Directors may, by resolution, provide the time and place,
either within or without the State of Wisconsin, for the holding
of additional regular meetings without other notice than such
resolution.
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3.4 Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the Chairman of
the Board, Chief Executive Officer or a majority of the number of
directors fixed by Section 3.2. The person or persons authorized
to call special meetings of the Board of Directors may fix any
place, either within or without the State of Wisconsin, as the
place for holding any special meeting of the Board of Directors
called by them.
3.5 Notice of Meetings. Except as otherwise provided in
the Amended and Restated 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 of Directors shall be
given orally or in writing to each director or committee member
at least forty-eight (48) hours prior to the meeting, except that
notice by mail shall be given at least seventy-two (72) hours
prior to the meeting. The notice need not describe the purpose of
the meeting.
3.6 Quorum; Votes. One-third (1/3) of the number of
directors fixed by Section 3.2 shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors,
but though less than such quorum is present at a meeting, a
majority of the directors present may adjourn the meeting from
time to time without further notice. If a quorum is present when
a vote is taken, the affirmative vote of a majority of directors
present shall be the act of the Board of Directors, unless the
act of a greater number is required by law, by the Amended and
Restated Articles of Incorporation or by these Bylaws.
3.7 Removal and Resignation. A director may be removed
from office by the affirmative vote of the holders of two-thirds
(2/3) of the outstanding shares entitled to vote taken at a
meeting called for that purpose. A director may resign at any
time by delivering his written resignation to the Secretary of
the corporation or to the Chairman of the Board.
A resignation is effective when the notice is received unless the
notice specifies a later effective date.
3.8 Vacancies. Any vacancy occurring in the Board of
Directors, including a vacancy created by an increase in the
number of directors, may be filled by any of the following: (i)
the shareholders, (ii) the Board of Directors or (iii) if the
directors remaining in office constitute fewer than a quorum of
the Board of Directors, the directors, by the affirmative vote of
a majority of all directors remaining in office; provided,
however, that if the vacant office was held by a director elected
by a voting group of shareholders, only the holders of shares of
that voting group may vote to fill the vacancy if it is filled by
the shareholders, and only the remaining directors elected by
that voting group may vote to fill the vacancy if it is filled by
the directors. The Directors so elected shall hold office until
the next succeeding election of the class for which such director
shall have been elected.
3.9 Nominations. Nominations for the election of
directors may be made only by the Board of Directors, by the
Nominating Committee of the Board of Directors (or, if none, any
other committee serving a similar function) or by any shareholder
entitled to vote generally in elections of directors where the
shareholder complies with the requirements of this Section. Any
shareholder of record entitled to vote generally in elections of
directors may nominate one or more persons for election as
directors at a meeting of shareholders only if written notice of
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such shareholder's intent to make such nomination or nominations
has been given to the Secretary of the corporation and is
received by the Secretary (i) with respect to an election to be
held at an Annual Meeting, not more than ninety (90) days nor
less than fifty (50) days in advance of the third Thursday after
the first Friday of the month of January next following the last
Annual Meeting held; provided, that if the Annual Meeting is held
earlier than the third Thursday after the first Friday of the
month of January, such notice must be given on or before the
later of (x) the date fifty (50) days prior to the earlier date
of the Annual Meeting and (y) the date ten (10) business days
after the first public disclosure, which may include any public
filing with the Securities and Exchange Commission or a press
release to Dow Jones & Company or any similar service, of the
earlier date of the Annual Meeting, and (ii) with respect to an
election to be held at a Special Meeting as to which notice of
such meeting states that it is to be held for the election of
directors, not earlier than ninety (90) days prior to such
Special Meeting and not later than the close of business on the
later of (x) the tenth (10th) business day following the date on
which notice of such meeting is first given to shareholders and
(y) the fiftieth (50th) day prior to such Special Meeting. Each
such notice of a shareholder's intent to nominate a director or
directors at an Annual Meeting or Special Meeting shall set forth
the following: (A) the name and address, as they appear on the
corporation's books, of the shareholder who intends to make the
nomination and of the beneficial owner or owners, if any, on
whose behalf the nomination is to be made and the name and
residence address of the person or persons to be nominated; (B)
the class and number of shares of the corporation which are
beneficially owned by the shareholder and beneficial owner or
owners; (C) a representation that the shareholder is a holder of
record of stock of the corporation entitled to vote at such
meeting and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the
notice; (D) a description of all arrangements or understandings
between the shareholder and/or beneficial owner or owners and
each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are
to be made by the shareholders; (E) such other information
regarding each nominee proposed by such shareholder as would be
required to be disclosed in solicitations of proxies for election
of directors, or would be otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended, including any information that would be
required to be included in a proxy statement filed pursuant to
Regulation 14A had the nominee been nominated by the Board of
Directors; and (F) the written consent of each nominee to be
named in a proxy statement and to serve as a director of the
corporation if so elected. No person shall be eligible to serve
as a director of the corporation unless nominated in accordance
with the procedures set forth in this By-law. If the chairman of
the shareholders meeting shall determine that a nomination was
not made in accordance with the procedures prescribed by the
Bylaws, he or she shall so declare to the meeting and the
defective nomination shall be disregarded. Notwithstanding the
foregoing provisions of this Section 3.9, a shareholder shall
also comply with all applicable requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations
thereunder with respect to the matters set forth in this Section.
3.10 Compensation. The Board of Directors, irrespective
of any personal interest of any of its members, upon the
recommendation of the Nominating Committee, may establish
compensation of all directors for services to the corporation as
directors, or may delegate such authority to an appropriate
committee.
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3.11 Presumption of Assent. A director of the
corporation who is present and is announced as present at a
meeting of the Board of Directors or a committee thereof of which
he or she is a member at which action on any corporate matter is
taken assents to the action taken, unless any of the following
occurs: (i) the director objects at the beginning of the meeting
or promptly upon his or her arrival to the holding of the meeting
or transacting business at the meeting; (ii) the director's
dissent or abstention from the action taken is entered in the
minutes of the meeting; (iii) the director delivers written
notice of his or her dissent or abstention to the presiding
officer of the meeting before its adjournment or to the
corporation immediately after adjournment of the meeting; or (iv)
the director dissents or abstains from action taken, minutes of
the meeting are prepared that fail to show the director's dissent
or abstention from the action taken and the director delivers to
the corporation a written notice of that failure that complies
with Section 180.0141 of the Wisconsin Business Corporation Law
promptly after receiving the minutes. Such right to dissent or
abstain shall not apply to a director who voted in favor of such
action.
3.12 Committees of the Board of Directors.
(a) Subject to the provisions of the Wisconsin
Business Corporation Law, there shall be those committees of the
Board of Directors set forth in Sections 3.13-3.18 of these
Bylaws, and
the Board of Directors may from time to time establish other
committees including standing or special committees, which shall
have such duties and powers as are authorized by these Bylaws or
by the Board of Directors; provided, however, that no committee
shall do any of the following: (i) authorize distributions; (ii)
approve or propose to shareholders action that the Wisconsin
Business Corporation Law requires be approved by shareholders;
(iii) fill vacancies on the Board of Directors or, unless the
Board of Directors provides by resolution that any vacancies on a
committee shall be filled by the affirmative vote of a majority
of the remaining committee members, on any of its committees;
(iv) amend the corporation's Amended and Restated Articles of
Incorporation; (v) adopt, amend or repeal the corporation's By-
laws; (vi) approve a plan of merger not requiring shareholder
approval; (vii) authorize or approve reacquisition of shares,
except according to a formula or method prescribed by the Board
of Directors; and (viii) authorize or approve the issuance or
sale or contract for sale of shares, or determine the designation
and relative rights, preferences and limitations of a class or
series of shares, except that the Board of Directors may
authorize a committee or the Chief Executive Officer of the
corporation to do so within limits prescribed by the Board of
Directors. In addition to the powers expressly enumerated in
these By-laws, the Board of Directors may, by resolution, at any
time desirable, adopt new powers and authority of any committee.
(b) Committee members and the chairman of each
committee, including any alternates, shall be appointed by the
Board of Directors as provided in the Wisconsin Business
Corporation Law. The Chief Executive Officer of the corporation
shall make recommendations to the Board of Directors for its
action concerning members to be appointed to the several
committees of the Board of Directors. Any member of any committee
may be removed at any time with or without cause by the Board of
Directors. Vacancies which occur in any committee may be filled
by a resolution of the Board of Directors. If any vacancy shall
occur in any committee by reason of death, resignation,
disqualification, removal or otherwise, the remaining members of
such committee, so long as the committee has at least two (2)
members and a quorum is present, may continue to act until such
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vacancy is filled. The Board of Directors may, by resolution, at
any time deemed desirable, discontinue any standing or special
committee, subject to the requirements of the By-laws of the
corporation. Members of standing committees, and their chairmen,
shall be appointed yearly at the organizational meeting of the
Board of Directors which is held immediately following the Annual
Meeting of shareholders. Members of committees may receive such
compensation for their services as the Board of Directors, upon
the recommendation of the Nominating Committee, may determine.
3.13 Executive Committee. There shall be an Executive
Committee of the Board of Directors. The Executive Committee
shall consist of the Chief Executive Officer of the corporation
and not less than three (3) other directors. Subject to the
Wisconsin Business Corporation Law and Section 3.12 of these
Bylaws, the Executive Committee shall have all of the powers of
the Board of Directors in the management and conduct of the
business and affairs of the corporation in the intervals between
meetings of the Board of Directors, and shall report its actions
to the
Board of Directors at its regular meetings.
3.14 Audit Committee. There shall be an Audit
Committee of the Board of Directors. The Committee shall have at
least three (3) members. The members of the Committee shall meet
the independence and experience requirements of the New York
Stock Exchange. The Committee shall have the authority to conduct
any investigation appropriate to fulfilling its responsibilities
and shall have the authority to retain, at the Company's expense,
legal, accounting or other consultants it deems necessary in the
performance of its duties. The Committee shall have all of the
responsibilities of a qualified audit committee under New York
Stock Exchange rules including without limitation the
responsibilities set forth below.
Review Procedures
1. Review and reassess the adequacy of this charter at
least annually. Submit the charter to the Board of
Directors for approval and have the document
published at least every three years in accordance
with Securities and Exchange Commission regulations.
2. Review the Company's annual audited financial
statements prior to filing or distribution. Review
should include discussion with management and the
independent auditors of significant issues regarding
accounting principles, practices, and judgments.
3. In consultation with management, the independent
auditors, and the internal auditors, consider the
integrity of the Company's financial reporting
processes and controls. Discuss significant
financial risk exposures and the steps management
has taken to monitor, control, and report such
exposures. Review significant findings prepared by
the independent auditors and the internal auditing
department together with management's responses.
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4. Review with financial management and the independent
auditors the Company's quarterly financial results
prior to filing the Company's Form 10-Q with the
Securities and Exchange Commission. Discuss any
significant changes to the Company's accounting
principles and any items required to be communicated
by the independent auditors in accordance with AICPA
SAS 61. The Chair of the Committee may represent the
entire Audit Committee for purposes of this review.
Independent Auditors
5. The independent auditors are ultimately accountable
to the Audit Committee and the Board of Directors.
The Audit Committee and the Board of Directors shall
have the ultimate authority to select, evaluate the
performance of and, where appropriate, replace the
independent auditors. The Audit Committee shall
annually recommend to the Board of Directors the
appointment or replacement of the independent
auditors.
6. Approve the fees and any other significant
compensation to be paid to the independent auditors.
7. On an annual basis, the Committee shall obtain a
formal written statement from the independent
auditors delineating all relationships between the
Company and its affiliates, including the written
letter and disclosure required by ISB Standard No.
1, as it may be supplemented.
8. From time to time, as appropriate, engage in a
dialogue with the independent auditors with respect
to any disclosed relationships or services that may
impact the objectivity and independence of such
accountants and recommend to the Board of Directors
appropriate action in response to the outside
auditors' report to satisfy itself of the auditors'
independence.
9. Review the independent auditors audit plan - discuss
scope, staffing, locations, reliance upon
management, and internal audit and general audit
approach.
10. Prior to releasing the year-end earnings, discuss
the results of the audit with the independent
auditors. Discuss with the independent accountants
the Company's internal controls and the matters
required to be communicated to audit committees in
accordance with AICPA SAS 61.
Internal Audit Department and Legal Compliance
11. Review the budget, activities, organizational
structure, qualifications and performance of the
internal audit department, as needed.
12. Review any reports covering issues which are
material to the Company's financial statements
prepared by the internal audit department together
with management's response and follow-up to these
reports.
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13. On at least an annual basis, review with the
Company's counsel, any legal matters that could have
a significant impact on the organization's financial
statements, the Company's compliance with applicable
laws and regulations, and inquiries received from
regulators or governmental agencies.
Other Responsibilities
14. Annually prepare, based on the review and
discussions referred to above, a report to
shareholders as required by Securities and Exchange
Commission rules and regulations. The report should
be included in the Company's annual proxy statement.
15. Review and update periodically the Company's Code of
Conduct and ensure that compliance with the Code of
Conduct is adequately monitored by management.
16. Perform any other activities consistent with this
charter, the Company's by-laws, and governing law,
as the Committee or the Board deems necessary or
appropriate.
17. Periodically report to the Board of Directors on
significant results of the foregoing activities.
3.15 Compensation and Development Committee. There shall
be a Compensation and Development Committee of the Board of
Directors. The Committee shall have the following membership and
powers:
(a) The Committee shall be composed of at least three
(3) members. Each member of the Committee shall be both a
"nonemployee director" (within the meaning of Rule 16b-3 of the
Securities and Exchange Act) and an "outside director" (within
the meaning of Section 162(m)(4)(C) of the Internal Revenue
Code).
(b) The Committee shall review and approve all
compensation plans and programs (philosophy and guidelines) for
the senior management of the corporation including salary
structure, base salary, short and long-term incentive
compensation plans, including stock options and nonqualified
benefit plans and programs, including fringe benefit plans and
programs.
(c) The Committee shall prepare such reports as are
required to be included in the corporation's proxy statement.
(d) The Committee shall review and approve annual
changes in the compensation of each officer appointed by the
Board of Directors including base salary and short and long term
incentive awards.
(e) The Committee shall review and approve all awards
under the corporation's Stock Option Plans.
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(f) The Committee shall consider and make
recommendations to the Board of Directors regarding the selection
and retention of all elected officers of the corporation (as
defined in Section 4.1) and shall annually recommend to the Board
of Directors the appointment of such officers of the corporation
at the time of the Annual Meeting of shareholders.
(g) The Committee shall approve all executive
employment contracts.
(h) The Committee shall oversee the selection of
outside consultants to review the compensation programs of the
corporation and shall meet with such consultants with or without
management as appropriate.
(i) The Committee shall annually review the
performance of the Chief Executive Officer.
(j) The Committee shall annually review and approve
the Chief Executive Officer's management development and
succession plans for the corporation.
(k) The Committee shall have such other duties as may
be lawfully delegated to it from time to time by the Board of
Directors.
3.16 Finance Committee. There shall be a Finance
Committee of the Board of Directors. The Committee shall have
the following membership and powers:
(a) The Committee shall have at least three (3)
members. At least fifty percent (50%) of the members of the
Committee shall be non-employee directors.
(b) The Committee shall review and approve the
corporation's annual capital budget, longterm financing plans,
existing credit facilities, investments and commercial and
investment banking relationships.
(c) The Committee shall review and approve the
corporation's existing insurance coverages, foreign currency
management and Stock Repurchase Program.
(d) The Committee shall review and approve the
financial management and administrative operation of the
corporation's qualified and non-qualified employee benefit plans.
(e) The Committee shall have such other duties as
lawfully may be delegated to it from time to time by the Board of
Directors.
3.17 Nominating Committee. There shall be a Nominating
Committee of the Board of Directors. The Committee shall have
the following membership and powers:
(a) The Committee shall have at least three (3)
members. All members of the Committee shall be non-employee
directors.
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(b) The Committee shall review candidates to serve as
director and shall recommend candidates to the Board of Directors
for nomination to stand for election at each Annual Meeting of
shareholders or other meetings where directors are to be elected
and shall recommend persons to serve as proxies to vote proxies
solicited by the Board of Directors in connection with such
meetings.
(c) The Committee shall cause the names of all
director candidates that are approved by the Board of Directors
to be listed in the corporation's proxy materials and shall
support the election of all candidates so nominated by the Board
of Directors to the extent permitted by law.
(d) The Committee shall review and make
recommendations to the Board of Directors concerning the
composition and size of the Board of Directors and potential
candidates to serve in the future on the Board of Directors.
(e) The Committee shall review candidates for
election as directors submitted by shareholders for compliance
with these By-laws.
(f) The Committee shall review and recommend to the
Board of Directors the overall compensation programs for
directors, including annual retainer, meeting fees, deferred
compensation, stock or option plans or other incentive plans, and
retirement plans.
(g) The Committee shall recommend to the Board of
Directors the date, time and place of the Annual Meeting of the
shareholders.
(h) The Committee shall have such other duties as
lawfully may be delegated to it from time to time by the Board of
Directors.
3.18 Scientific Advisory Committee.
There shall be a Scientific Advisory Committee of the Board of
Directors. The Committee shall have the following membership and
powers:
(a) The Committee shall have at least three (3)
members. At least fifty percent (50%) of the members of the
Committee shall be non-employee directors.
(b) The Committee shall review and evaluate the
research and development programs of the corporation with respect
to quality and scope.
(c) The Committee shall advise the Board of Directors
on maintaining product leadership through technological
innovation.
(d) The Committee shall review and make
recommendations to the Board of Directors regarding the
technological aspects of the corporation's business, including
new business opportunities.
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(e) The Committee shall report to the Board of
Directors on new technological and regulatory trends that will
have a significant impact on the business of the corporation.
(f) The Committee shall have such other duties as
lawfully may be delegated to it from time to time by the Board of
Directors.
3.19 Meetings of Committees. Each committee of the Board
of Directors shall fix its own rules of procedure which shall
include and be consistent with the provisions of the Wisconsin
Business Corporation Law, these By-laws and any resolutions of
the Board of Directors governing such committee, and shall make
such reports to the Board of Directors of its activities as the
Board of Directors may request. Each committee shall meet as
provided by such rules and shall also meet at the call of its
chairman or any two (2) members of such committee. Unless
otherwise provided by such rules, the provisions of these By laws
under Section 3 entitled "Board of Directors" relating to the
place of holding meetings and the notice required for meetings of
the Board of Directors shall govern the place of meetings and
notice of meetings for committees of the Board of Directors. A
majority of the members of each committee shall constitute a
quorum thereof, except that when a committee consists of two (2)
members, then the two (2) members shall constitute a quorum. In
the absence of a quorum, a majority of the members present at the
time and place of any meeting may adjourn the meeting from time
to time until a quorum shall be present and the meeting may be
held as adjourned without further notice or waiver. Except in
cases where it is otherwise provided by the rules of such
committee, the vote of a majority of the members present at a
duly constituted meeting at which a quorum is present shall be
sufficient to pass any measure by the committee.
3.20 Informal Action Without Meeting. Any action required
or permitted by the Amended and Restated Articles of
Incorporation or By-laws or any provision of law to be taken by
the Board of Directors or a committee at a meeting may be taken
without a meeting if the action is taken by all members of the
Board of Directors or of the committee. The action shall be
evidenced by one or more written consents describing the action
taken, signed by each director or committee member and retained
by the corporation. Such action shall be effective when the last
director or committee member signs the consent, unless the
consent specifies a different effective date.
3.21 Telephonic Meetings. Notwithstanding any place set
forth in the notice of the meeting or these By-laws, members of
the Board of Directors may participate in regular or special
meetings of the Board of Directors and all Committees of the
Board of Directors by or through the use of any means of
communication by which either: (a) all directors participating
may simultaneously hear each other, such as by conference
telephone, or (b) 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; provided however, that the
Chairman of the Board or the chairman of the respective Committee
of the Board of Directors or other person or persons calling a
meeting may determine that the directors cannot participate by
such means, in which case the notice of the meeting, or other
notice to directors given prior to the meeting, shall state that
each director's physical presence shall be required. If a
meeting is conducted through the use of such means, then at the
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commencement of such meeting 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 such means shall be deemed present in person at such
meeting. The identity of each director participating in such a
meeting must be verified in such manner as the chairman of the
meeting deems reasonable under the circumstances before a vote
may be taken.
4. OFFICERS
4.1 Number.
(a) The principal executive officers of the
corporation shall be a Chairman, a Chief Executive Officer, a
President, one or more Vice Presidents, one or more of whom may
be designated Executive Vice President, one or more of whom may
be designated Senior Vice President, and one or more of whom may
be designated Vice President and Group Executive, a Secretary, a
Treasurer, a Controller, a Chief Financial Officer and divisional
presidents, each of whom shall be appointed by the Board of
Directors (the officers thus appointed by the Board of Directors
are sometimes referred to herein as the "elected" officers). All
other officers, other designated divisional or staff officers,
and all assistant officers (including one or more Assistant
Secretaries and/or Assistant Treasurers) shall be appointed by
the Board of Directors or the Chief Executive Officer. Such
officers, agents and employees appointed by the Chief Executive
Officer shall hold office at the discretion of the Chief
Executive Officer. Any two or more offices may be held by the
same person.
(b) The duties of the elected officers shall be those
enumerated herein and any further duties designated by the Board
of Directors. The duties herein specified for particular
officers may be transferred to and vested in such other officers
as the Board of Directors shall appoint from time to time and for
such periods or without limitation as to time as the Board of
Directors shall order.
(c) The duties and powers of all officers appointed
by the Chief Executive Officer shall be those specifically
prescribed for the position(s) by the Chief Executive Officer at
the time of appointment.
4.2 Appointment and Term of Office.
(a) The elected officers of the corporation shall be
appointed annually by the Board of Directors at the first meeting
of the Board of Directors held after each Annual Meeting of the
shareholders. If the appointment of officers shall not be held
at such meeting, such appointment shall be held as soon
thereafter as convenient. Each such officer shall hold office
until his or her successor shall have been duly appointed or
until his or her death or until he or she shall resign or shall
have been removed in the manner hereinafter provided.
(b) A vacancy in any office appointed by the Board of
Directors, because of death, resignation, removal,
disqualification or otherwise may be filled by the Board of
Directors for the unexpired portion of the term.
4.3 Removal. The Board of Directors may remove any
officer or agent at any time, with or without cause and
notwithstanding the contract rights, if any, of the officer or
agent removed. Appointment shall not of itself create contract
rights.
4.4 Resignation. An officer may resign at any
time by delivering written notice to the Secretary of 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.
4.5 The Chief Executive Officer. The Chief Executive
Officer, subject to the control of the Board of Directors, shall
supervise and control all of the business and affairs of the
corporation. He or she shall, in the absence of the Chairman of
the Board, preside at all meetings of the shareholders and
directors. He or she shall have authority, subject to such rules
as may be prescribed by the Board of Directors, to appoint and
remove certain officers and such agents and employees of the
corporation as he or she shall deem necessary, to prescribe their
powers, duties and compensation, and to delegate authority to
them. He or she shall have authority to sign, execute and
acknowledge, on behalf of the corporation, all deeds, mortgages,
bonds 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 the Board of Directors; and except as otherwise provided by
law or the Board of Directors, he or she may authorize any other
officer or agent of the corporation to sign, execute and
acknowledge such documents or instruments in his or her place and
stead. In general, he or she shall perform all duties incident to
the office of Chief Executive Officer and such other duties as
may be prescribed by the Board of Directors from time to time.
4.6 The President. The President shall be the chief
operating officer of the corporation. In the absence of the
Chief Executive Officer or in the event of his or her death,
inability or refusal to act, or in the event for any reason it
shall be impracticable for the Chief Executive Officer to act
personally, the President shall perform the duties of the Chief
Executive Officer and when so acting shall have all the powers of
and be subject to all the restrictions upon the Chief Executive
Officer. The President shall have the authority to sign all
stock certificates, contracts, and other instruments of the
corporation necessary or proper to be executed in the course of
the corporation's regular business, or which shall be authorized
by the Board of Directors, and shall perform all duties as are
incident to his or her office or are properly required of him or
her by the Board of Directors, the Chairman of the Board or the
Chief Executive Officer. He or she shall have the authority,
subject to such rules, directions, or orders as may be prescribed
by the Chairman of the Board, the Board of Directors or the Chief
Executive Officer, to appoint and terminate the appointment of
such agents and employees of the corporation as he or she shall
deem necessary, to prescribe their power, duties and compensation
and to delegate authority to them.
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4.7 Vice Presidents. At the time of appointment, one or
more of the elected Vice Presidents may be designated Executive
Vice President and one or more of them may be designated Senior
Vice President. In the absence of the President or in the event
of his or her death, inability or refusal to act, or in the event
for any reason it shall be impracticable for the President to act
personally, the Executive Vice Presidents in the order of their
tenure in such position, or in the absence of any such
designation, or in the event of his or her inability to act, any
Senior Vice President in the order of their tenure in such
position, or in the absence of any such designation, or in the
event of his or her inability to act, then the other Vice
Presidents in order of their tenure in such position, shall
perform the duties of the President and when so acting shall have
all the powers of and be subject to all the restrictions upon the
President. Any Vice President may sign, with the Secretary or
Assistant Secretary, certificates for shares of the corporation
and shall perform such other duties as from time to time may be
assigned to him or her by the Chairman of the Board, the Chief
Executive Officer or the Board of Directors.
4.8 The Secretary. The Secretary shall: (a) keep as
permanent records, the minutes of the shareholders' and of the
Board of Directors' meetings, records of actions taken by the
Board of Directors without a meeting, and records of actions
taken by a Committee of the Board of Directors in place of the
Board of Directors and on behalf of the corporation; (b) see that
all notices are duly given in accordance with the provisions of
these By-laws or as required by law; (c) be custodian of the
corporate records and of the seal of the corporation and see that
the seal of the corporation is affixed to all documents the
execution of which on behalf of the corporation under its seal is
duly authorized; (d) maintain or cause an authorized agent to
maintain a record of the corporation's shareholders, in a form
that permits preparation of a list of the names and addresses of
all shareholders, by class or series of shares and showing the
number and class or series of shares held by each shareholder;
and (e) in general perform all duties incident to the office of
Secretary and such other duties as from time to time may be
assigned to him or her by the Chief Executive Officer or by the
Board of Directors.
4.9 The Treasurer. If required by the Board of
Directors, the Treasurer shall give a bond for the faithful
discharge of his or her duties in such sum and with such surety
or sureties as the Board of Directors shall determine. He or she
shall: (a) have charge and custody of and be responsible for all
funds and securities of the corporation, receive and give
receipts for moneys due and payable to the corporation from any
source whatsoever, and deposit all such moneys in the name of the
corporation in such banks, trust companies or other depositaries
as shall be selected in accordance with the provisions of Section
5 of these By-laws; and (b) in general perform all of the duties
incident to the office of Treasurer and such other duties as from
time to time may be assigned to him or her by the Chief Executive
Officer or by the Board of Directors.
4. 10 The Controller. The Controller shall be the
chief accounting officer of the corporation. He or she shall: (a)
maintain appropriate accounting records for the corporation; (b)
cause regular audits of these accounting records to be made; and
(c) in general perform all of the duties incident to the office
of Controller and such other duties as from time to time may be
assigned to him or her by the Chief Executive Officer or by the
Board of Directors.
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4.11 Compensation.
(a) The compensation of the elected officers shall be
fixed from time to time by the Compensation and Development
Committee of the Board of Directors and no such officer shall be
prevented from receiving such compensation by reason of the fact
that he or she is also a Director of the corporation.
(b) The compensation of all officers appointed by the
Chief Executive Officer shall be set by the Chief Executive
Officer, from time to time.
5. CONTRACTS, LOANS, CHECKS AND DEPOSITS
5.1 Contracts. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract
or execute and deliver any instrument in the name of and on
behalf of the corporation, and such authorization may be general
or confined to specific instances.
5.2 Loans. No indebtedness for borrowed money shall be
contracted on behalf of the corporation and no evidences of
indebtedness shall be issued in its name unless authorized by or
under the authority of a resolution of the Board of Directors.
Such authorization may be general or confined to specific
instances.
5.3 Checks, Drafts, etc. All checks, drafts or other
orders for the payment of money, notes or other evidences of
indebtedness issued in the name of the corporation, shall be
signed by such officer or officers, agent or agents of the
corporation and in such manner, including by means of facsimile
signatures, as shall from time to time be determined by or under
the authority of resolution of the Board of Directors.
5.4 Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of
the corporation in such banks, trust companies or other
depositaries as may be selected by or under the authority of the
Board of Directors.
6. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.1 Certificates for Shares. Certificates representing
shares of the corporation shall be in such form as shall be
determined by the Board of Directors. Such certificates shall be
signed by the Chairman, Chief Executive Officer, President or
Chief Financial Officer and by the Secretary or an Assistant
Secretary. All certificates for shares shall be consecutively
numbered or otherwise identified. The name and address of the
person to whom the shares represented thereby are issued, with
the number of shares and the date of issue, shall be entered on
the stock transfer books of the corporation. All certificates
surrendered to the corporation for transfer 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 certificates shall be issued until the former
certificate for a like number of shares shall have been
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surrendered and cancelled, except that in case of a lost,
destroyed or mutilated certificate, a new one may be issued
therefor upon such terms and indemnity to the corporation as the
Board of Directors may prescribe.
6.2 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.
6.3 Uncertificated Shares. The Board of Directors may
authorize the issuance of any shares of any of the corporation's
classes or series without certificates. The authorization does
not affect shares already represented by certificates until the
certificates are surrendered to the corporation.
6.4 Transfer of Shares. Transfer of shares of the
corporation shall be made only on the stock transfer books of the
corporation by the holder of record thereof or by his or her
legal representative, who shall furnish proper evidence of
authority to transfer, or by his or her attorney thereunto
authorized by power of attorney duly executed and filed with the
Secretary of the corporation, and on surrender for cancellation
of the certificate for such shares. The person in whose name
shares stand on the books of the corporation shall be deemed by
the corporation to be the owner thereof for all purposes.
6.5 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.
6.6 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.
6.7 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.
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<PAGE> 25
6.8 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
they 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 stock registrars.
7. WAIVER OF NOTICE
7.1 Shareholder Written Waiver. A shareholder may waive
any notice required by the Wisconsin Business Corporation Law,
the Amended and Restated 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.
7.2 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.
7.3 Director Written Waiver. A director may
waive any notice required by the Wisconsin Business Corporation
Law, the Amended and Restated Articles of Incorporation or these
By-laws 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.
7.4 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.
8. LIABILITY AND INDEMNIFICATION OF OFFICERS AND DIRECTORS
8.1 Limited Liability of Directors to Corporation and
Shareholders. A director is not liable to the corporation, its
shareholders, or any person asserting rights on behalf of the
corporation or its shareholders, for damages, settlements, fees,
fines, penalties or other monetary liabilities arising from a
breach of, or failure to perform, any duty resulting solely from
25
<PAGE> 26
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 willful 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 criminal law, unless the director
had reasonable cause to believe his or her conduct was lawful, or
no reasonable cause to believe his or her conduct was unlawful;
(c) a transaction from which the director derived an
improper personal profit; or
(d) willful misconduct.
8.2 Indemnification.
(a) A 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.
(b) In cases not included under the foregoing
paragraph, a corporation shall indemnify a director or officer
against liability 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:
(i) 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;
(ii) a violation of criminal law, unless the
director or officer had reasonable cause to
believe his or her conduct was lawful or no
reasonable cause to believe his or her
conduct was unlawful;
(iii)a transaction from which the director or
officer derived an improper personal
profit; or
(iv) willful misconduct.
(b) Determination of whether indemnification is
required under this subsection shall be made under section
180.0855 of the Wisconsin Business Corporation Law.
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<PAGE> 27
(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 subsection.
(d) A director or officer who seeks indemnification
under this section shall make a written request to the
corporation.
(e) Indemnification under this section is not
required 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.
8.3 Reliance by Directors and Officers. Unless a
director or officer has knowledge that makes reliance
unwarranted, a director or officer, in discharging his or her
duties to the corporation, may rely on information, opinions,
reports or statements, any of which may be written or oral,
formal or informal, including financial statements and other
financial data, if prepared or presented by any of the following:
(a) an officer or employee of the corporation whom
the director or officer believes in good faith to be reliable and
competent in the matters presented; or
(b) legal counsel, public accountants or other
persons as to matters the director or officer believes in good
faith are within the person's professional or expert competence.
(c) In the case of reliance by a director, a
committee of the Board of Directors of which the director is not
a member if the director believes in good faith that the
committee merits confidence.
8.4 Consideration of Interests in Addition to
Shareholders' Interests. In discharging his or her duties to the
corporation and in determining what he or she believes to be in
the best interests of the corporation, a director or officer may,
in addition to considering the effects of any action on
shareholders, consider any of the following:
(a) the effects of the action on employees, suppliers
and customers of the corporation;
(b) the effects of the action on communities in which
the corporation operates; or
(c) any other factors the director or officer
considers pertinent.
8.5 Insurance. The corporation may purchase and maintain
insurance on behalf of an individual who is an employee, agent,
director or officer of the corporation against liability asserted
against or incurred by the individual in his or her capacity as
an employee, agent, director or officer or arising from his or
her status as an employee, agent, director or officer, regardless
of whether the corporation is required or authorized to indemnify
or allow expenses to the individual against the same liability
under sections 180.0851, 180.0853, 180.0856 and 180.0858 of the
Wisconsin Business Corporation Law.
27
<PAGE> 28
8.6 General.
(a) Except as limited by law, the indemnification and
allowance of expenses provided by Sections 8.1 through 8.5 of
this Article do not
preclude any additional right to indemnification or allowance of
expenses that a director, officer or employee may have under any
written agreement between such person and the corporation,
resolution of the Board of Directors or resolution adopted by the
corporation's shareholders.
(b) For purposes of this article, the definitions
contained in section 180.0850 of the Wisconsin Business
Corporation Law are incorporated herein by this reference. The
term "employee" shall mean a natural person who is or was an
employee of the corporation or who, while an employee of the
corporation, is or was serving at the corporation's request as a
director, officer, partner, committee, employee or agent of
another corporation, partnership, joint venture, trust, or other
enterprise, and, unless the context requires otherwise, the
estate or personal representative of the employee.
(c) The corporation, by its Board of Directors, may
indemnify under Section 8.2, or with any limitations, any
employee or former employee of the corporation with respect to
any action taken or not taken in his or her capacity as or while
an employee. Notwithstanding the foregoing, the corporation
shall indemnify an employee who is not a director or officer
corporation, to the extent that he or she has been successful on
the merits or otherwise in defense of a proceeding, for all
expenses incurred in the proceeding if the employee was a party
because he or she was an employee of the corporation.
9. GENERAL
9.1 Fiscal Year. The fiscal year of the corporation
shall end on September 30 of each year, commencing September 30,
1961.
9.2 Seal. The Board of Directors shall provide a
corporate seal which shall be circular in form and shall have
inscribed thereon the name of the corporation and the words
"Corporate Seal, Wisconsin".
9.3 Notices. Except as otherwise required by law or
these By-laws, any notice required to be given by these Bylaws
may be given orally or in writing and notice may be communicated
in person, by mail or private carrier, by telephone, telegraph,
teletype, facsimile or other form of wire or wireless
communication, and, if these forms of personal notice are
impracticable, notice may be communicated by a newspaper of
general circulation in the area where published, or by radio,
television or other form of public broadcast communication. Oral
notice is effective when communicated. Written notice is
effective as follows: (a) if delivered in person, when received;
(b) 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); (c) if
given by private carrier, when delivered to the carrier; (d) if
given by telegraph, when delivered to the telegraph company; and
(e) if given by facsimile, e-mail or other form of wireless
28
<PAGE> 29
communication, at the time transmitted to a facsimile number or
email address at any address designated in (b) above.
9.4 No Nominee Procedures. The corporation has not
established, and nothing contained in these Bylaws shall be
deemed to establish, any procedure by which a beneficial owner of
the corporation's shares that are registered in the name of a
nominee is recognized by the corporation as the shareholder under
Section 180.0723 of the Wisconsin Business Corporation Law.
10. AMENDMENTS
10.1 Power to Amend and Repeal. Except as may be limited
pursuant to Section 10.2, these By-laws may be amended or
repealed, and new Bylaws may be adopted, either by the
shareholders at any meeting, or by vote of a majority of the
shares present or represented thereat, or by the Board of
Directors by a vote of a majority of the Board of Directors;
except that Sections 2.3, 2.8, 3.2, 3.7, 3.8, 10.1, and 10.2 of
the By-laws may be amended only by the affirmative vote of the
holders of twothirds (2/3) of the outstanding shares entitled to
vote thereon or by the affirmative vote of a majority of the
directors. Except as may be limited pursuant to Section 10.2,
the Board of Directors shall have the power to amend or repeal
any By-law adopted by the shareholders, and any Bylaw adopted by
the Board of Directors shall be subject to amendment or repeal by
the shareholders as well as by the directors.
10.2 Restrictions on Amendment and Repeal.
(a) The Board of Directors shall have no power to amend
or repeal
(a) The Board of Directors shall have no power to
amend or repeal any By-law or amendment adopted by the
shareholders which contains a specific provision to the effect
that such By-law or amendment shall not be subject to amendment
or repeal by the Board of Directors.
(b) The Board of Directors shall have no power to
amend or repeal any By-law adopted or amended by the shareholders
that fixes a greater or lower quorum requirement or a greater
voting requirement for the Board of Directors than otherwise is
provided in the Wisconsin Business Corporation Law 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 By-law that changes the quorum or
voting requirement for the Board of Directors must meet the same
quorum requirement and be adopted by the same vote required to
take action under the quorum and voting requirement then in
effect, unless a different voting requirement is specified as
provided by the preceding sentence. A By-law 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.
29
<PAGE> 30
(c) No amendment or repeal of these Bylaws by the
shareholders at any meeting shall be effective unless the notice
of such meeting shall have set forth the general nature of the
proposed amendment or repeal.
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