SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
_______________________
Date of Report
(Date of earliest
event reported): March 5, 1996
Journal Communications, Inc.
(Exact name of registrant as specified in its charter)
Wisconsin 0-7831 39-0382060
(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification No.)
incorporation)
Journal Square, P. O. Box 661, 333 West State Street, Milwaukee, WI 53201
(Address of principal executive offices, including zip code)
(414) 224-2728
(Registrant's telephone number)
<PAGE>
Item 5. Other Events.
On March 5, 1996, the Board of Directors of Journal Communications,
Inc. (the "Company") amended Article III-A of the Company's By-laws
with respect to the indemnification of directors, officers and
certain other persons and Section 1 of Article I of the Company's
By-laws with respect to certain procedures relating to the Company's
annual meeting of stockholders. A complete copy of the Company's
By-laws, as amended, is filed as an exhibit to this report.
Item 7. Financial Statements and Exhibits.
(a) Not applicable.
(b) Not applicable.
(c) Exhibits. The following exhibit is being filed herewith:
(3.1) By-laws of Journal Communications, Inc., as amended
March 5, 1996.
<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.
JOURNAL COMMUNICATIONS, INC.
Date: March 5, 1996 By: /s/ Paul E. Kritzer
Paul E. Kritzer
Vice President and General Counsel
<PAGE>
JOURNAL COMMUNICATIONS, INC,
Exhibit Index to Current Report on Form 8-K
Dated March 5, 1996
Exhibit
Number
(3.1) By-laws of Journal Communications, Inc., as amended March 5,
1996.
EXHIBIT 3.1
JOURNAL COMMUNICATIONS, INC.
BY-LAWS
ARTICLE I.
STOCKHOLDERS
SECTION 1. Annual Meeting.
(a) The annual meeting of stockholders of the company (the
"Annual Meeting") for the election of directors and the transaction of
such other business as may properly come before the meeting shall be held
at the offices of the company in the City of Milwaukee, Wisconsin, or at
such other place where the company has business operations, as the Chairman
may designate, on the first Tuesday of June in each year, unless the
directors designate a different date.
(b) At an Annual Meeting, only such business shall be
conducted, and only nominations for the election of directors shall be
made, as shall have been properly brought before the meeting in accordance
with these By-Laws. To be properly brought before an Annual Meeting,
business or nominations must (i) be specified in the notice of the meeting
(or any supplement thereto) given by or at the direction of the Board of
Directors; (ii) otherwise properly be brought before the meeting by or at
the direction of the Board of Directors; or (iii) otherwise (A) properly
be requested to be brought before the meeting by a stockholder of record
of the company (a "Stockholder") entitled to vote in the election of
directors generally and (B) constitute a proper subject to be brought
before such meeting. For nominations or other business to be properly
requested to be brought before an Annual Meeting by a Stockholder, any
Stockholder who intends to bring any matter before an Annual Meeting and
is entitled to vote on such matter must deliver written notice of such
Stockholder's intent to bring the matter before the Annual Meeting, either
by personal delivery or by United States mail, postage prepaid, to the
Secretary of the company. Such notice must be received by the Secretary
by (x) March 15, 1996, in the case of the Annual Meeting scheduled to be
held on June 4, 1996, or (y) 90 days prior to the first anniversary of the
immediately preceding Annual Meeting in the case of any other Annual
Meeting; provided, however, that in the event that the date for which the
Annual Meeting is called is advanced by more than 30 days or delayed by
more than 60 days from the date specified in clause (x) or (y), as the
case may be, notice by the Stockholder to be timely must be so delivered
not earlier than the close of business on the 100th day prior to the date
of such Annual Meeting and not later than the close of business on the
later of the 75th day prior to the date of such Annual Meeting or the 10th
day following the day on which public announcement of the date of such
meeting is first made. In no event shall the announcement of an
adjournment of an Annual Meeting commence a new time period for the giving
of a Stockholder notice as described above.
(c) A Stockholder's notice to the Secretary required by this
Section 1 shall set forth as to each matter the Stockholder proposes to
bring before the Annual Meeting: (i) in the case of any proposed
nomination for election or re-election as a director, (A) the name, age,
business and residence addresses, and principal occupation or employment
of each nominee; (B) a description of all arrangements or understandings
between the Stockholder 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 Stockholder; (C) such other information
regarding each nominee proposed by such Stockholder as would be required
to be included in a proxy statement filed pursuant to the proxy rules of
the Securities and Exchange Commission; and (D) the written consent of
each nominee to serve as a director of the company if so elected; (ii) in
the case of any other business that such Stockholder proposes to bring
before the Annual Meeting, (A) a brief description of the business to be
brought before the meeting and the reasons for conducting such business at
the meeting and (B) any material interest of the Stockholder in such
business; (iii) the name and address of the Stockholder intending to
propose such business; (iv) the number of shares of stock of the company
owned, either personally or in concert with others, by the Stockholder,
and (v) a representation that the Stockholder is a holder of stock of the
company entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to make such nomination or present such
proposal. The company may require any proposed nominee to furnish such
other information as may reasonably be required by the company to
determine the eligibility of such proposed nominee to serve as a director
of the company. No business shall be conducted at an Annual Meeting
except in accordance with the procedures set forth in this Section 1. The
chairman of the Annual Meeting shall, if the facts warrant, determine and
declare to the Annual Meeting that a nomination was not made or business
was not properly brought before the meeting in accordance with the
provisions hereof and, if he should so determine, he shall so declare to
the Annual Meeting that any such nomination shall be disregarded and/or
any such business not properly brought before the Annual Meeting shall not
be transacted.
(d) Notwithstanding anything in the fourth sentence of Section
1(b) to the contrary, in the event that the number of directors to be
elected to the Board of Directors is increased and there is no public
announcement naming all of the nominees for director or specifying the
size of the increased Board of Directors made by the company at least 85
days prior to the date specified in clause (x) or (y), as the case may be,
of such sentence, a Stockholder's notice required by Section 1(b) with
respect to any nomination of a person for election to the Board of
Directors shall also be considered timely, but only with respect to
nominees for any new positions created by such increase, if it shall be
received by the Secretary of the company not later than the close of
business on the 10th day following the day on which such public
announcement is first made by the company.
(e) The chairman of the board, or in his absence such other
officer as may be designated by the Board of Directors, shall be the
chairman at an Annual Meeting. The secretary of the company shall be the
secretary at stockholders' meetings, but in his absence the chairman of
the meeting may appoint a secretary for the meeting. The board of
directors may, to the extent not prohibited by law, adopt by resolution
such rules and regulations for the conduct of the Annual Meeting as it
shall deem appropriate. Except to the extent inconsistent with such rules
and regulations as adopted by the Board of Directors, the chairman of any
meeting of stockholders shall have the right and authority to prescribe
such rules, regulations or procedures and to do all acts as, in the
judgment of the chairman, are appropriate for the proper conduct of the
meeting. Such rules, regulations or procedures, whether adopted by the
Board of Directors or prescribed by the chairman of the meeting, may to
the extent not prohibited by law include, without limitation, the
following: (i) the establishment of an agenda or order of business for
the meeting; (ii) rules and procedures for maintaining order at the
meeting and the safety of those present; (iii) limitations on attendance
at or participation in the meeting to Stockholders, their duly authorized
and constituted proxies (which shall be reasonable in number) or such
other persons as the chairman of the meeting shall determine;
(iv) restrictions on entry to the meeting after the time fixed for the
commencement thereof; and (v) limitations on the time allotted to
questions or comments by participants.
SECTION 2. Special Meetings. A special meeting of
stockholders may be called at any time by the president or by a majority
of the Board of Directors. Upon written request therefore signed by
holders of not less than twenty per cent of the outstanding capital stock
of the company, delivered to the president or secretary of the company, it
shall be the duty of the officer receiving such request to call forthwith
a special meeting of stockholders.
SECTION 3. Notice of Meetings. It shall be the duty of the
secretary to mail to each stockholder whose name appears on the books of
the company, written notice of every annual meeting and of every special
meeting of stockholders at least ten days before such meeting, and in such
notice of any special meeting to state the business proposed to be
transacted thereat. If the secretary shall refuse, or shall omit within
48 hours after written request so to do, to give notice of any special
meeting, the person or persons (including stockholders of the company)
calling the same may give such notice, or cause it to be given, with like
effect as though given by the secretary.
SECTION 4. Voting. At any meeting of stockholders each
stockholder having the right to vote shall be entitled to vote in person,
or by proxy appointed by an instrument in writing subscribed by such
stockholder. Each stockholder shall have one vote for each share of stock
registered in his name on the books of the company, but no share of stock
shall be voted at any election for directors which shall have been
transferred on the books of the company within fifteen days next preceding
such election.
SECTION 5. Quorum. At any meeting of stockholders the
holders of a majority of all the shares of the capital stock of the
company issued and outstanding, present in person or represented by proxy,
shall constitute a quorum. If the holders of the amount of stock
necessary to constitute a quorum shall fail to attend in person or by
proxy at the time and place fixed for an annual meeting or fixed by notice
as above provided for a special meeting, a majority in interest of the
stockholders present in person or by proxy may adjourn from time to time
without notice other than by announcement at the meeting, until holders of
the amount of stock requisite to constitute a quorum shall attend. At any
such adjourned meeting at which a quorum shall be present any business may
be transacted which might have been transacted at the meeting as
originally noticed.
SECTION 6. Voting by Ballot. At any meeting of
stockholders, if demanded by the holders of twenty per cent of the number
of shares present in person or by proxy and entitled to vote thereat, or
if ordered by the chairman of such meeting, the vote upon any election or
question shall be taken by ballot, and the polls shall be opened and
closed, the proxies and ballots shall be received and all questions
relating to the qualification of voters, the validity of proxies and the
acceptance or rejection of votes shall be decided by three inspectors
previously appointed by the Board of Directors; but unless so demanded or
ordered no vote need be by ballot and the voting need not be conducted by
inspectors. In case of the failure of the board to appoint inspectors, or
in case an inspector shall fail to attend or serve, the chairman of the
meeting may appoint an inspector to fill each such vacancy to act at such
meeting. All ballots shall be in writing signed by the person casting the
same and shall be delivered to the inspectors. Upon canvassing the
ballots the inspectors shall deliver to the chairman of the meeting their
report thereof and the chairman shall present such report to the meeting.
ARTICLE II.
BOARD OF DIRECTORS
SECTION 1. Number, Tenure and Qualifications. The business
and property of the company shall be managed and controlled by the Board
of Directors. The Board of Directors shall consist of such number of
members, not less than three nor more than twenty-six, as shall be
determined by the directors by resolution and elected by the stockholders
at the annual meeting. The Board of Directors may delegate any of its
powers to any committee thereof or any officer or agent. Each director so
elected shall serve until the next annual meeting of stockholders and
until his successor shall have been duly elected and qualified.
SECTION 2. Meetings. Regular meetings of the Board of
Directors shall be held at least quarterly on such dates and at such hour
as may be fixed from time to time by the Board. A special meeting of the
Board of Directors shall be held whenever called by the chairman of the
board, or by the president of the company, or by seven members of the
board. All meetings of the Board of Directors, unless otherwise ordered,
shall be held in the directors' room at the principal office of the
company in the City of Milwaukee, Wisconsin.
SECTION 3. Notice of Special Meetings. The secretary shall
give written notice of each special meeting by mailing the same at least
five days before the meeting to each member of the board, and such notice
shall state the business proposed to be transacted at the meeting;
provided, however, that no notice of the time, place or purpose of any
meeting of the board shall be required in the case of directors who attend
such meeting in person or execute a written waiver of notice thereof; and
it shall not be necessary to give notice of any adjourned meeting of the
Board of Directors. At any meeting attended by all of the members of the
Board of Directors, any and all business may be transacted notwithstanding
the lack of due notice of such meeting. If the secretary shall refuse, or
shall omit within 24 hours after written request so to do, to give notice
of any special meeting, the person or persons calling the same may give
such notice or cause it to be given with like effect as though given by
the secretary.
SECTION 4. Quorum. The presence at any meeting of a
majority of the directors then in office shall constitute a quorum for the
transaction of business but a lesser number may adjourn from time to time.
SECTION 5. Filling Vacancies. In case of any vacancy in the
membership of the Board of Directors the remaining directors by
affirmative vote of a majority thereof may elect a successor to hold
office for the unexpired portion of the term of the director whose place
shall be vacant, and until the election of a successor at the next annual
meeting of the stockholders.
SECTION 6. Power to Remove Officers. The Board of Directors
shall have power by an affirmative vote of two-thirds of its members to
remove from office any officer of the company, and it shall also have
power by a majority vote of its members to fill any vacancy in any office
from whatever cause the vacancy may arise.
ARTICLE III.
OFFICERS
SECTION 1. Titles and Qualifications. The officers of the
company shall be a chairman of the board, a president, and an executive
vice-president and such number of senior vice-presidents and vice-
presidents as may from time to time be determined by the Board of
Directors, a secretary, a treasurer, an assistant secretary, and an
assistant treasurer. The same person may hold more than one office except
that the individual occupying the office of president shall not be
eligible during his tenure of such office to hold the office of executive
or senior vice-president or vice-president. The chairman of the board,
president, executive vice-president, senior vice-presidents and vice-
presidents shall be members of the Board of Directors. The other officers
need not be members of the board.
SECTION 2. Election: Term of Office. The officers shall be
chosen annually by the Board of Directors. Each officer subject to the
power of removal vested in the Board of Directors shall hold his office
until his successor shall have been duly chosen and qualified.
SECTION 3. Duties of Chairman of Board. The chairman of the
board shall be the chief executive officer of the company. He shall
preside at all meetings of the Board of Directors and stockholders. He
shall exercise general supervision over the affairs of the corporation
subject to control by the Board of Directors, and shall perform such
special duties as may be assigned to him from time to time by the Board of
Directors.
SECTION 4. Duties of President. The president shall
exercise general supervision over the business and affairs of the company
subject to the authority of the chairman of the board and the Board of
Directors, and shall perform generally the duties which usually appertain
to that office, and such other duties as may be assigned to him by the
Board of Directors.
SECTION 5. Duties of Executive Vice-President. The
Executive vice-president shall assist the chairman of the Board and the
president in exercising general supervision over the business and affairs
of the Company. The senior vice-president and vice-president shall
perform such duties as may be assigned to them respectively from time to
time by the Board of Directors, by the president or by the executive vice-
president. In case of absence or disability of the president, the
executive vice-president shall perform the duties and functions of the
president. In case of absence or disability by both the president and
executive vice-president, the senior vice-president designated by the
president or by the chairman of the Board shall perform the duties and
functions of the president.
SECTION 6. Duties of Secretary. The principal duties of the
secretary shall be to countersign deeds and conveyances executed by the
corporation, affix the corporate seal thereto and to such other
instruments as shall be required or directed to be sealed, to keep a
record of the proceedings of the stockholders and Board of Directors, to
have charge of the stock and stock transfer books of the company and all
other books, records and documents belonging to the corporation.
SECTION 7. Duties of Treasurer. The principal duties of the
treasurer shall be to keep and account for all moneys, credits and
property of the corporation which shall come into his hands, and keep an
accurate account of all moneys received and disbursed and of money and
property on hand, and generally perform the duties which appertain to such
office and such other duties as may be assigned to him from time to time
by the Board of Directors.
SECTION 8. Duties of Assistant Secretary. The assistant
secretary shall assist the secretary in such manner as the latter may
direct, and in case of the absence or disability of the secretary shall
perform all the duties of the latter.
SECTION 9. Duties of Assistant Treasurer. The assistant
treasurer shall assist the treasurer in such manner as the latter may
direct, and in the absence or disability of the treasurer shall perform
all of the duties of the latter.
SECTION 10. Other Duties. Each of said officers shall also
perform such additional or other duties as shall from time to time be
imposed or required by the Board of Directors or by the By-Laws.
SECTION 11. Other Officers. The Board of Directors may appoint
such other officers and agents as shall be deemed necessary or expedient,
who shall have such authority and shall perform such duties as from time
to time may be prescribed by the Board of Directors.
ARTICLE III-A.
INDEMNIFICATION OF OFFICERS
DIRECTORS, EMPLOYEES
AND AGENTS; INSURANCE
SECTION 1. Certain Definitions. All terms used in this
Article III-A and not otherwise hereinafter defined in this Article III-A
shall have the meaning set forth in Section 180.0850 of the Wisconsin
Business Corporation Law (the "Statute"). The following terms (including
any plural forms thereof) used in this Article III-A shall be defined as
follows:
(a) "Affiliate" shall include, without limitation, any
Person (including without limitation an employee benefit plan) that,
directly or indirectly through one or more intermediaries, controls
or is controlled by, or is under common control with, the
Corporation.
(b) "Authority" shall mean the entity selected by the
Director or Officer or Covered Person to determine his right to
indemnification pursuant to Section 4 of this Article III-A.
(c) "Board of Directors" shall mean the entire then
elected and serving Board of Directors of the Corporation, including
all members thereof who are Parties to the subject Proceeding or any
related Proceeding.
(d) "Breach of Duty" shall mean the Director or Officer or
Covered Person breached or failed to perform his duties to the
Corporation and his breach of or failure to perform those duties is
determined, in accordance with Section 4 of this Article III-A, to
constitute misconduct under Section 180.0851(2)(a) l, 2, 3 or 4 of
the Statute.
(e) "Corporation," as used herein and as defined in the
Statute and incorporated by reference into the definitions of certain
other capitalized terms used herein, shall mean the company,
including, without limitation, any successor corporation or entity to
the company by way of merger, consolidation or acquisition of all or
substantially all of the capital stock or assets of the company.
(f) "Covered Person" shall mean any trustee of the Journal
Employees' Stock Trust Agreement, dated May 15, 1937, as amended, and
any trustee of any employee benefit plan of the Corporation.
(g) "Director or Officer" shall have the meaning set forth
in the Statute; provided, that, for purposes of this Article III-A,
it shall be conclusively presumed that any Director or Officer
serving as a director, officer, partner, trustee, member of any
governing or decision-making committee, employee or agent of an
Affiliate shall be so serving at the request of the Corporation.
(h) "Disinterested Quorum" shall mean a quorum of the
Board of Directors who are not Parties to the subject Proceeding or
any related Proceeding.
(i) "Party" shall have the meaning set forth in the
Statute; provided, that, for purposes of this Article III-A, the term
"Party" shall also include any Director or Officer, Covered Person or
employee of the Corporation who is or was a witness in a Proceeding
at a time when he has not otherwise been formally named a Party
thereto.
(j) "Person" shall mean any individual, partnership, firm,
corporation, association, trust, unincorporated organization or other
entity, as well as any syndicate or group deemed to be a person under
Section 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
(k) "Proceeding" shall have the meaning set forth in the
Statute; provided, that, in accordance with Section 180.0859 of the
Statute and for purposes of this Article III-A, the term "Proceeding"
shall also include all Proceedings (i) brought under (in whole or in
part) the Securities Act of 1933, as amended, the Exchange Act, their
respective state counterparts, and/or any rule or regulation
promulgated under any of the foregoing; (ii) brought before an
Authority or otherwise to enforce rights hereunder; (iii) any appeal
from a Proceeding; and (iv) any Proceeding in which the Director or
Officer or Covered Person is a plaintiff or petitioner because he is
a Director or Officer or Covered Person; provided, however, that any
such Proceeding under this subsection (iv) must be authorized by a
majority vote of a Disinterested Quorum.
(l) "Statute" shall mean Sections 180.0850 through
180.0859, inclusive, of the Wisconsin Business Corporation Law,
Chapter 180 of the Wisconsin Statutes, as the same shall then be in
effect, including any amendments thereto, but, in the case of any
such amendment, only to the extent such amendment permits or requires
the Corporation to provide broader indemnification rights than the
Statute permitted or required the Corporation to provide prior to
such amendment.
SECTION 2. Mandatory Indemnification of Directors and
Officers and Covered Persons. To the fullest extent permitted or required
by the Statute, the Corporation shall indemnify a Director or Officer or
Covered Person against all Liabilities incurred by or on behalf of such
Director or Officer or Covered Person in connection with a Proceeding in
which the Director or Officer or Covered Person is a Party because he is a
Director or Officer or Covered Person.
SECTION 3. Procedural Requirements.
(a) A Director or Officer or Covered Person who seeks
indemnification under Section 2 of this Article III-A shall make a
written request therefor to the Corporation. Subject to subsection
(b) of this Section 3, within sixty days of the Corporation's receipt
of such request, the Corporation shall pay or reimburse the Director
or Officer or Covered Person for the entire amount of Liabilities
incurred by the Director or Officer or Covered Person in connection
with the subject Proceeding (net of any Expenses previously advanced
pursuant to Section 5 of this Article III-A).
(b) No indemnification shall be required to be paid by the
Corporation pursuant to Section 2 of this Article III-A if, within
such sixty-day period, (i) a Disinterested Quorum, by a majority vote
thereof, determines that the Director or Officer or Covered Person
requesting indemnification engaged in misconduct constituting a
Breach of Duty or (ii) a Disinterested Quorum cannot be obtained.
(c) In either case of nonpayment pursuant to
subsection (b) of this Section 3, the Board of Directors shall
immediately authorize by resolution that an Authority, as provided in
Section 4 of this Article III-A, determine whether the conduct of the
Director or Officer or Covered Person constituted a Breach of Duty
and, therefore, whether indemnification should be denied hereunder.
(d) (i) If the Board of Directors does not authorize an
Authority to determine the Director's or Officer's or Covered
Person's right to indemnification hereunder within such sixty-day
period and/or (ii) if indemnification of the requested amount of
Liabilities is paid by the Corporation, then it shall be conclusively
presumed for all purposes that a Disinterested Quorum has
affirmatively determined that the Director or Officer or Covered
Person did not engage in misconduct constituting a Breach of Duty
and, in the case of clause (i) above (but not clause (ii)),
indemnification by the Corporation of the requested amount of
Liabilities shall be paid to the Director or Officer or Covered
Person immediately.
SECTION 4. Determination of Indemnification.
(a) If the Board of Directors authorizes an Authority to
determine a Director's or Officer's or Covered Person's right to
indemnification pursuant to Section 3 of this Article III-A, then the
Director or Officer or Covered Person requesting indemnification
shall have the absolute discretionary authority to select one of the
following as such Authority:
(i) An independent legal counsel; provided, that such
counsel shall be mutually selected by such Director or Officer
or Covered Person and by a majority vote of a Disinterested
Quorum or, if a Disinterested Quorum cannot be obtained, then by
a majority vote of the Board of Directors;
(ii) A panel of three arbitrators selected from the
panels of arbitrators of the American Arbitration Association in
Wisconsin; provided, that (A) one arbitrator shall be selected
by such Director or Officer or Covered Person, the second
arbitrator shall be selected by a majority vote of a
Disinterested Quorum or, if a Disinterested Quorum cannot be
obtained, then by a majority vote of the Board of Directors, and
the third arbitrator shall be selected by the two previously
selected arbitrators, and (B) in all other respects (other than
this Article III-A), such panel shall be governed by the
American Arbitration Association's then existing Commercial
Arbitration Rules; or
(iii) A court pursuant to and in accordance with
Section 180.0854 of the Statute.
(b) In any such determination by the selected Authority
there shall exist a rebuttable presumption that the conduct of the
Director or Officer or Covered Person did not constitute a Breach of
Duty and that indemnification against the requested amount of
Liabilities is required. The burden of rebutting such a presumption
by clear and convincing evidence shall be on the Corporation or such
other party asserting that such indemnification should not be
allowed.
(c) The Authority shall make its determination within
sixty days of being selected and shall submit a written opinion of
its conclusion simultaneously to both the Corporation and the
Director or Officer or Covered Person.
(d) If the Authority determines that indemnification is
required hereunder, then the Corporation shall pay the entire
requested amount of Liabilities (net of any Expenses previously
advanced pursuant to Section 5 of this Article III-A), including
interest thereon at a reasonable rate, as determined by the
Authority, within ten days of receipt of the Authority's opinion;
provided, that, if it is determined by the Authority that a Director
or Officer or Covered Person is entitled to indemnification against
Liabilities' incurred in connection with some claims, issues or
matters, but not as to other claims, issues or matters, involved in
the subject Proceeding, the Corporation shall be required to pay (as
set forth above) only the amount of such requested Liabilities as the
Authority shall deem appropriate in light of all of the circumstances
of such Proceeding.
(e) The determination by the Authority that
indemnification is required hereunder shall be binding upon the
Corporation regardless of any prior determination that the Director
or Officer or Covered Person engaged in a Breach of Duty.
(f) All Expenses incurred in the determination process
under this Section 4 by either the Corporation or the Director or
Officer or Covered Person, including, without limitation, all
Expenses of the selected Authority, shall be paid by the Corporation.
SECTION 5. Mandatory Allowance of Expenses.
(a) The Corporation shall pay or reimburse from time to
time or at any time, within ten days after the receipt of the
Director's or Officer's or Covered Person's written request therefor,
the reasonable Expenses of the Director or Officer of Covered Person
as such Expenses are incurred; provided, the following conditions are
satisfied:
(i) The Director or Officer of Covered Person
furnishes to the Corporation an executed written certificate
affirming his good faith belief that he has not engaged in
misconduct that constitutes a Breach of Duty; and
(ii) The Director or Officer or Covered Person
furnishes to the Corporation an unsecured executed written
agreement to repay any advances made under this Section 5 if it
is ultimately determined by an Authority that he is not entitled
to be indemnified by the Corporation for such Expenses pursuant
to Section 4 of this Article III-A.
(b) If the Director or Officer or Covered Person must
repay any previously advanced Expenses pursuant to this Section 5,
then such Director or Officer or Covered Person shall not be required
to pay interest on such amounts.
SECTION 6. Indemnification and Allowance of Expenses of
Certain Others.
(a) The Board of Directors may, in its sole and absolute
discretion as it deems appropriate, pursuant to a majority vote
thereof, indemnify a director or officer of an Affiliate (who is not
otherwise serving as a Director or Officer or Covered Person) against
all Liabilities, and shall advance the reasonable Expenses, incurred
by such director or officer in a Proceeding to the same extent
hereunder as if such director or officer incurred such Liabilities
because he was a Director or Officer or Covered Person, if such
director or officer is a Party thereto because he is or was a
director or officer of the Affiliate.
(b) The Corporation shall indemnify an employee who is not
a Director or Officer or Covered Person, to the extent he has been
successful on the merits or otherwise in defense of a Proceeding, for
all reasonable Expenses incurred in the Proceeding if the employee
was a Party because he was an employee of the Corporation.
(c) The Board of Directors may, in its sole and absolute
discretion as it deems appropriate, pursuant to a majority vote
thereof, indemnify (to the extent not otherwise provided in
subsection (b) of this Section 6) against Liabilities incurred by,
and/or provide for the allowance of reasonable Expenses of, an
employee or authorized agent of the Corporation acting within the
scope of his duties as such and who is not otherwise a Director or
Officer or Covered Person.
SECTION 7. Insurance. The Corporation may purchase and
maintain insurance on behalf of a Director or Officer or Covered Person or
any individual who is or was an employee or authorized agent of the
Corporation against any Liability asserted against or incurred by such
individual in his capacity as such or arising from his status as such,
regardless of whether the Corporation is required or permitted to
indemnify against any such Liability under this Article III-A.
SECTION 8. Notice to the Corporation. A Director or
Officer, Covered Person or employee shall promptly notify the Corporation
in writing when he has actual knowledge of a Proceeding that may result in
a claim of indemnification against Liabilities or allowance of Expenses
hereunder, but the failure to do so shall not relieve the Corporation of
any liability to the Director or Officer, Covered Person or employee
hereunder unless the Corporation shall have been irreparably prejudiced by
such failure (as determined, in the case of Directors or Officers or
Covered Persons only, by an Authority selected pursuant to Section 4(a) of
this Article III-A.
SECTION 9. Severability. If any provision of this Article
III-A shall be deemed invalid or inoperative, or if a court of competent
jurisdiction determines that any of the provisions of this Article III-A
contravene public policy, then this Article III-A shall be construed so
that the remaining provisions shall not be affected, but shall remain in
full force and effect, and any such provisions that are invalid or
inoperative or that contravene public policy shall be deemed, without
further action or deed by or on behalf of the Corporation, to be modified,
amended and/or limited, but only to the extent necessary to render the
same valid and enforceable; it being understood that it is the
Corporation's intention to provide the Directors and Officers and Covered
Persons with the broadest possible protection against personal liability
allowable under the Statute.
SECTION 10. Nonexclusivity of Article III-A. The rights of a
Director or Officer, Covered Person or employee (or any other person)
granted under this Article III-A shall not be deemed exclusive of any
other rights to indemnification against Liabilities or allowance of
Expenses to which the Director or Officer, Covered Person or employee (or
such other person) may be entitled under any written agreement, Board of
Director resolution, vote of shareholders of the Corporation or otherwise,
including, without limitation, under the Statute. Nothing contained in
this Article III-A shall be deemed to limit the Corporation's obligations
to indemnify against Liabilities or allow Expenses to a Director or
Officer, Covered Person or employee under the Statute.
SECTION 11. Contractual Nature of Article III-A; Repeal or
Limitation of Rights. This Article III-A shall be deemed to be a contract
between the Corporation and each Director or Officer, Covered Person and
employee of the Corporation, and any repeal or other limitation of this
Article III-A or any repeal or limitation of the Statute or any other
applicable law shall not limit any rights of indemnification against
Liabilities or allowance of Expenses then existing or arising out of
events, acts or omissions occurring prior to such repeal or limitation,
including, without limitation, the right to indemnification against
Liabilities or allowance of Expenses for Proceedings commenced after such
repeal or limitation to enforce this Article III-A with regard to acts,
omissions or events arising prior to such repeal or limitation.
ARTICLE IV.
CAPITAL STOCK
SECTION (a) Form of Stock Certificates. Certificates for shares
of the stock of the company shall be in such form as shall be approved by
the Board of Directors. They shall be numbered in the order of their
issue, and shall be signed by the president or a vice-president and by the
secretary or treasurer, or an assistant secretary or an assistant
treasurer, and the seal of the company shall be affixed thereto.
SECTION (b) Regulations. The Board of Directors shall have
authority to make such rules and regulations as it shall deem appropriate
concerning the issue, transfer and registration of certificates evidencing
shares of capital stock of the company, and the issuance of new
certificates to replace certificates lost or destroyed.
SECTION (c) Transfer of Shares. Shares of the capital stock of
the company shall be transferable only on the books of the company, upon
surrender of the outstanding certificate therefor duly indorsed, by the
holder thereof personally or by written power of attorney.
ARTICLE V.
SEAL
The seal of the corporation shall be circular in form containing
the name of the company and the words "Milwaukee, Wisconsin" in the
circumference, and the word "Seal" in the center.
ARTICLE VI.
FISCAL YEAR
The fiscal year of the company shall coincide with the calendar
year.
ARTICLE VII.
AMENDMENTS
Any provision or provisions of these By-Laws may be amended or
repealed at any annual meeting of the stockholders or at any special
meeting called for that purpose by vote of a majority of the outstanding
capital stock of the company.
