<PAGE> 1
As filed with the Securities and Exchange Commission on March , 2000
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Registration No. 333 -
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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ELECTRONIC TELE-COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
WISCONSIN 39-1357760
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1915 MACARTHUR ROAD
WAUKESHA, WISCONSIN 53188
(Address of Principal Executive Offices) (Zip Code)
------------------------
ELECTRONIC TELE-COMMUNICATIONS, INC.
1999 NONQUALIFIED STOCK OPTION PLAN
(Full title of the plan)
----------------------
DEAN W. DANNER Copy to:
President and Chief Executive Officer CONRAD G. GOODKIND, ESQ.
Electronic Tele-Communications, Inc. Quarles & Brady LLP
1915 MacArthur Road 411 East Wisconsin Avenue
Waukesha, Wisconsin 53188 Milwaukee, Wisconsin 53202
(Name and address of agent for service)
(262) 542-5600
(Telephone number, including area code, of agent for service)
--------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==================================================================================================================================
Proposed Proposed
Amount to be maximum offering maximum aggregate Amount of
Title of Securities to be registered registered price per share (1) offering price registration fee
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
Class A Common Stock, 175,000(1) (2)(3) $678,125(2) $135.63
$.01 par value per share
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Plan provides for the possible adjustment of the number, price and
kind of shares covered by options granted or to be granted in the event of
certain capital or other changes affecting the Registrant's Class A Common
Stock. This Registration Statement, therefore, covers, in addition to the
above-stated 175,000 shares, an indeterminate number of shares that may become
subject to the Plan by reason of such adjustment.
<PAGE> 2
(2) Estimated solely for the purpose of computing the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933. The proposed
maximum offering price is based upon a market price of $3.875 per share, which
is the average of the bid and asked price of the Registrant's Common Stock on
March 23, 2000, as reported in the over-the counter-market.
(3) In accordance with the terms of the Plan, the actual offering price of
each share of the Registrant's Class A Common Stock covered by an option shall
be 100% of the Fair Market Value of such stock on the date the option is
granted.
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Information specified in Part I of Form S-8 (Items 1 and 2) will be sent or
given to Plan participants as specified by Rule 428(b)(1) under the Securities
Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Electronic Tele-Communications, Inc. (the
"Registrant")(Commission File No. 0-13981) with the Securities and Exchange
Commission (the "Commission") pursuant to Section 13 of the Securities Exchange
of 1934 (the "1934 Act") are incorporated herein by reference:
(a) the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1999;
(b) the Registrant's Quarterly Reports for the quarterly periods
ended March 31, 1999, June 30, 1999, and September 30, 1999;
and
(c) the description of the Registrant's Class A Common Stock
contained in its Registration Statement on Form S-8 filed on
August 25, 1989, and any amendments or reports filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of the filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part hereof.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. See Item 3(c) above.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the sale of the securities registered hereunder will be
passed on for the Registrant by Quarles & Brady LLP, the Registrant's legal
counsel. Peter J. Lettenberger, a Director of the Registrant, is a partner of
Quarles & Brady LLP.
<PAGE> 4
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is incorporated under the Wisconsin Business Corporation Law
("WBCL").
Under Section 180.0851(1) of the WBCL, the Registrant is required to
indemnify a director or officer, to the extent such person is successful on the
merits or otherwise in the defense of a proceeding, for all reasonable expenses
incurred in the proceeding if such person was a party because he or she was a
director or officer of the Registrant. In all other cases, the Registrant is
required by Section 180.0851(2) of the WBCL to indemnify a director or officer
against liability incurred in a proceeding to which such person was a party
because he or she was an officer or director of the Registrant, unless it is
determined that he or she breached or failed to perform a duty owed to the
Registrant and the breach or failure to perform constitutes:
- - a willful failure to deal fairly with the Registrant or its
shareholders in connection with a matter in which the director or
officer has a material conflict of interest;
- - 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;
- - a transaction from which the director or officer derived an
improper personal profit; or
- - willful misconduct.
Section 180.0858 of the WBCL provides that, subject to certain limitations, the
mandatory indemnification provisions do not preclude any additional right to
indemnification or allowance of expenses that a director or officer may have
under the Registrant's Articles of Incorporation, Bylaws, any written agreement
between the director or officer and the Registrant or a resolution of the Board
of Directors or shareholders.
Section 180.0859 of the WBCL provides that it is the public policy of the
State of Wisconsin to require or permit indemnification, allowance of expenses
and insurance to the extent required or permitted under Sections 180.0850 to
180.0858 of the WBCL for any liability incurred in connection with a proceeding
involving a federal or state statute, rule or regulation regulating the offer,
sale or purchase of securities.
Section 180.0828 of the WBCL provides that, with certain exceptions, a
director is not liable to a corporation, its shareholders, or any person
asserting rights on behalf of the corporation or its shareholders, for damages,
settlements, fees, fines, penalties or other monetary liabilities arising from a
breach of, or failure to perform, any duty resulting solely from his or her
status as a director, unless the person asserting liability proves that the
breach or failure to perform constitutes any of the four exceptions to mandatory
indemnification under Section 180.0851(2) referred to above.
Article IX of the Registrant's Bylaws generally provides that the Company
shall indemnify any officer or director acting in such capacity if the person
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful.
Directors and officers of the Registrant are covered by directors' and
officers' liability insurance under which they are insured (subject to certain
exceptions and limitations specified in the policy) against expenses and
liabilities arising out of proceedings to which they are parties by reason of
being of having been directors or officers.
Under Section 180.0833 of the WBCL, directors of the Registrant against
whom claims are asserted with respect to the declaration of an improper dividend
or distribution to shareholders or certain other improper acts which they
approved are entitled to contribution from other directors who approved such
actions and from shareholders who knowingly accepted an improper dividend or
distribution, as provided therein.
<PAGE> 5
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See the Exhibit Index following the Signatures page in this Registration
Statement, which Exhibit Index is incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of
this section do not apply if the Registration Statement is on Form S-3, Form S-8
or Form F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Reference is made to the indemnification provisions described in
Item 6 of this Registration Statement.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
<PAGE> 6
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, hereunto duly
authorized, in the City of Waukesha, State of Wisconsin, on March 24 , 2000.
ELECTRONIC TELE-COMMUNICATIONS, INC.
By: /s/ Dean W. Danner
-------------------------------------
Dean W. Danner
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Dean W. Danner and Jeffrey M. Nigl, or either of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, and any other regulatory authority, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Dean W. Danner President, Chief Executive Officer and Director March 24, 2000
- --------------------------------------
Dean W. Danner (Principal Executive Officer)
/s/ Jeffrey M. Nigl Vice President, Treasurer and Chief Financial Officer March 24, 2000
- ------------------------------------
Jeffrey M. Nigl (Principal Financial and Accounting Officer)
/s/ Bonita M. Danner Vice President Engineering and Director March 24, 2000
- ------------------------------------
Bonita M. Danner
</TABLE>
1
<PAGE> 8
<TABLE>
<S> <C> <C>
/s/ Hazel Danner Secretary and Director March 24, 2000
- -----------------------------------
Hazel Danner
/s/ George W. Danner Director March 24, 2000
- -----------------------------------
George W. Danner
Director , 2000
- ----------------------------------- --------
Joanne B. Huelsman
Director , 2000
- ----------------------------------- --------
A. William Huelsman
/s/ Peter J. Lettenberger Director March 24, 2000
- -----------------------------------
Peter J. Lettenberger
Director , 2000
- ----------------------------------- --------
Richard A. Gabriel
</TABLE>
<PAGE> 9
ELECTRONIC TELE-COMMUNICATIONS, INC.
(THE "REGISTRANT")
(COMMISSION FILE NO. 0-13981)
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
<TABLE>
<CAPTION>
Exhibit Incorporated Herein Filed
Number Description By Reference To Herewith
------ ----------- --------------- --------
<S> <C> <C> <C>
4.1 Restated Articles of Incorporation of the Restated Articles of
Registrant Incorporation filed as Exhibit
3.1 to Form S-1 (No. 2-99175)
filed on July 24, 1985 ("Form S-1")
4.2 Bylaws of the Registrant X
5 Opinion of Quarles & Brady LLP X
23.1 Consent of Independent Accountants X
23.2 Consent of Quarles & Brady LLP Contained in
opinion filed
as Exhibit 5
24 Powers of Attorney Signatures page
to this
Registration
Statement
99 Electronic Tele-Communications, Inc. 1999 X
Nonqualified Stock Option Plan
</TABLE>
1
<PAGE> 1
EXHIBIT 4.2
(Form S-8)
BYLAWS
of
ELECTRONIC TELE-COMMUNICATIONS, INC.
AS AMENDED
MAY 3, 1991
2
<PAGE> 2
ARTICLE I. OFFICES
1.01. Principal and Business Offices. The corporation may have such
principal and other business offices, either within or without the State of
Wisconsin, as the Board of Directors may designate or as the business of the
corporation may require from time to time.
1.02. Registered Office. The registered office of the corporation required
by the Wisconsin Business Corporation Law to be maintained in the State of
Wisconsin may be, but need not be, identical with the principal office in the
State of Wisconsin, and the address of the registered office may be changed from
time to time by the Board of Directors, or if within the county, by the
registered agent. The business office of the registered agent of the corporation
shall be identical to such registered office.
ARTICLE II. SHAREHOLDERS
2.01. Annual Meeting. The annual meeting of the shareholders shall be held
on the first Friday of May in each year at 2:00 o'clock, P.M., or at such other
time and date within thirty days before or after said date as may be fixed by or
under the authority of the Board of Directors, for the purpose of electing
directors and for the transaction of such other business as may come before the
meeting. If the day fixed for the annual meeting shall be a legal holiday in the
State of Wisconsin, such meeting shall be held on the next succeeding business
day. If the election of directors shall not be held on the day designated
herein, or fixed as herein provided, for any annual meeting of the shareholders,
or at any adjournment there of, the Board of Directors shall cause the election
to be held at a special meeting of the shareholders as soon thereafter as
conveniently may be.
2.02. Special Meeting. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by statute, may be called by
the Chairman of the Board or the President or the Board of Directors or by the
person designated in the written request of the holders of not less than
one-tenth of all shares of the corporation entitled to vote at the meeting.
2.03. Place of Meeting. The Board of Directors may designate any place,
either within or without the State of Wisconsin as the place of meeting for any
annual meeting or for any special meeting called by the Board of Directors. A
waiver of notice signed by all shareholders entitled to vote at a meeting may
designate any place, whether within or without the State of Wisconsin, as the
place for the holding of such meeting. If no designation is made, or if a
special meeting be otherwise called, the place of meeting shall be the principal
business office of the corporation in the State of Wisconsin or such other
suitable place in the county of such principal office as may be designated by
the person calling such meeting, but any meeting may be adjourned to reconvene
at any place designated by vote of a majority of the shares represented thereat.
2.04. Notice of Meeting. Written notice stating the place, day and hour of
the meeting and, in case of a special meeting, the purpose or purposes for which
the meeting is called, shall be delivered not less than ten (10) days (unless a
longer period is required by law or the articles of incorporation) nor more than
fifty days before the date of the meeting, either personally or by mail, by or
at the direction of the Chairman of the Board or the President, or the
Secretary, or persons calling the meeting, to each shareholder of record
entitled to vote at such meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail, addressed to the shareholder
at his address as it appears on the stock record books of the corporation, with
postage thereon prepaid.
2.05. Closing of Transfer Books or Fixing of Record Date. For the purpose
of determining shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or shareholders entitled to receive
payment of any dividend, or in order to make a determination of shareholders for
any other proper purpose, the Board of Directors may provide that the stock
transfer books shall be closed for a stated period but not to exceed, in any
case, fifty days. If the stock transfer books shall be closed for the purpose of
determining shareholders entitled to notice of or to vote at a meeting of
shareholders, such books shall be closed for at least ten days immediately
preceding such meeting. In lieu of closing the stock transfer books, the Board
of Directors may fix in advance a date as the record date for any such
determination of shareholders, such date in any case to be not more than fifty
days and, in case of a meeting of shareholders, not less than ten days prior to
the date on which the particular action, requiring such determination of
shareholders, is to be taken. If the stock transfer books are not closed and no
record date is fixed for the determination of shareholders entitled to notice of
or to vote at a meeting of shareholders, or shareholders entitled to receive
payment of a dividend, the close of business on the date on which notice of the
meeting is mailed or on the date on which the resolution of the Board of
Directors declaring such dividend is adopted, as the case may be, shall be the
record date for such determination of shareholders. When a determination of
shareholders entitled to vote at any meeting of shareholders has been made as
provided in this section, such determination shall be applied to any adjournment
thereof except where the determination has been made through the closing of the
stock transfer books and the stated period of closing has expired.
<PAGE> 3
2.06. Voting Records. The officer or agent having charge of the stock
transfer books for shares of the corporation shall, before each meeting of
shareholders, make a complete record of the shareholders entitled to vote at
such meeting, or any adjournment thereof, with the address of and the number of
shares held by each. Such record shall be produced and kept open at the time and
place of the meeting and shall be subject to the inspection of any shareholder
during the whole time of the meeting for the purposes of the meeting. The
original stock transfer books shall be prima facie evidence as to who are the
shareholders entitled to examine such record or transfer books or to vote at any
meeting of shareholders. Failure to comply with the requirements of this section
shall not affect the validity of any action taken at such meeting.
2.07. Quorum. Except as otherwise provided in the articles of
incorporation, a majority of the shares entitled to vote, represented in person
or by proxy, shall constitute a quorum at a meeting of shareholders. If a quorum
is present, the affirmative vote of the majority of the shares represented at
the meeting and entitled to vote on the subject matter shall be the act of the
shareholders unless the vote of a greater number or voting by classes is
required by the Wisconsin Business Corporation Law or the articles of
incorporation. If less than a quorum is represented at a meeting, a majority of
the shares so represented may adjourn the meeting from time to time without
further notice. 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 as originally noticed. The shareholders present at a duly organized
meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum.
2.08. Conduct of Meetings. The Chairman of the Board, or if none, or in
his absence, the President, and in his absence, a Vice President in the order
provided under Section 4.08, and in their absence, any person chosen by the
shareholders present shall call the meeting of the shareholders to order and
shall act as chairman of the meeting, and the Secretary shall act as secretary
of all meetings of the shareholders, but, in the absence of the Secretary, the
presiding officer may appoint any other person to act as secretary of the
meeting.
2.09. Proxies. At all meetings of shareholders, a shareholder entitled
to vote may vote in person or by proxy appointed in writing by the shareholder
or by his duly authorized attorney-in-fact. Such proxy shall be filed with the
Secretary before or at the time of the meeting. Unless otherwise provided in the
proxy, a proxy may be revoked at any time before it is voted, either by written
notice filed with the Secretary or the acting secretary of the meeting or by
oral notice given by the shareholder to the presiding officer during the
meeting. The presence of a shareholder who has filed his proxy shall not of
itself constitute a revocation. No proxy shall be valid after eleven months from
the date of its execution, unless otherwise provided in the proxy. The Board of
Directors shall have the power and authority to make rules as to the validity
and sufficiency of proxies.
2.10. Voting of Shares. Each outstanding share 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 articles of incorporation.
2.11. Voting of Shares by Certain Holders.
(a) Other Corporations. Shares standing in the name of another
corporation may be voted either in person or by proxy, by the president of
such corporation or any other officer appointed by such president. A proxy
executed by any principal officer of such other corporation or assistant
thereto shall be conclusive evidence of the signer's authority to act, in
the absence of express notice to this corporation, given in writing to the
Secretary of this corporation, of the designation of some other person by
the board of directors or the bylaws of such other corporation.
(b) Legal Representatives and Fiduciaries. Shares held by a personal
representative, an administrator, executor, guardian, conservator, trustee
in bankruptcy, receiver, or assignee for creditors may be voted by him,
either in person or by proxy, without a transfer of such shares into his
name, provided that there is filed with the Secretary before or at the time
of meeting proper evidence of his incumbency and the number of shares held.
Shares standing in the name of a fiduciary may be voted by him, either in
person or by proxy. A proxy executed by a fiduciary, shall be conclusive
evidence of the signer's authority to act, in the absence of express notice,
given in writing to the Secretary, that such manner of voting is prohibited
or otherwise directed by the document creating the fiduciary relationship.
(c) Pledgees. A shareholder whose shares are pledged shall be entitled
to vote such shares in person or by proxy until the shares have been
transferred into the name of the pledgee, and thereafter the pledgee shall
be entitled to vote the shares so transferred.
(d) Treasury Stock and Subsidiaries. Neither treasury shares, nor
shares held by another corporation if a majority of the shares entitled to
vote for the election of directors of such other corporation is held by this
corporation, shall be voted at any meeting or counted in determining the
total number of outstanding shares entitled to vote, but shares of its own
issue held by this corporation in a fiduciary capacity, or held by such
other corporation in a fiduciary capacity, may be voted and shall be counted
in determining the total number of outstanding shares entitled to vote.
<PAGE> 4
(e) Minors. Shares held by a minor may be voted by such minor in person
or by proxy and no such vote shall be subject to disaffirmance or avoidance,
unless prior to such vote the Secretary of the corporation has received
written notice or has actual knowledge that such shareholder is a minor.
(f) Incompetents and Spendthrifts. Shares held by an incompetent or
spendthrift may be voted by such incompetent or spendthrift in person or by
proxy and no such vote shall be subject to disaffirmance or avoidance,
unless prior to such vote the Secretary of the corporation has actual
knowledge that such shareholder has been adjudicated an incompetent or
spendthrift or actual knowledge of filing of judicial proceedings for
appointment of a guardian.
(g) Joint Tenants. Shares registered in the names of two or more
individuals who are named in the registration as joint tenants may be voted
in person or by proxy signed by any one or more of such individuals if
either (i) no other such individual or his legal representative is present
and claims the right to participate in the voting of such shares or prior to
the vote files with the Secretary of the corporation a contrary written
voting authorization or direction or written denial of authority of the
individual present or signing the proxy proposed to be voted or (ii) all
such other individuals are deceased and the Secretary of the corporation has
no actual knowledge that the survivor has been adjudicated not to be the
successor to the interests of those deceased.
ARTICLE III. BOARD OF DIRECTORS
3.01. General Powers and Number. The business and affairs of the
corporation shall be managed by its Board of Directors. The number of directors
of the corporation shall be nine. The number of directors may be increased or
decreased (but not to less than three) from time to time by amendment to this
Section adopted by the shareholders or the Board of Directors but no decrease
shall have the effect of shortening the term of an incumbent director.
3.02. Tenure and Qualifications. Each director shall hold office until
the next annual meeting of shareholders and until his successor shall have been
elected, or until his prior death, resignation or removal. Any director or the
entire Board of Directors may be removed from office, with or without cause, by
affirmative vote of a majority of the outstanding shares entitled to vote for
the election of such director, taken at a meeting of shareholders called for
that purpose. A director may resign at any time by filing his written
resignation with the Secretary of the corporation. Directors need not be
residents of the State of Wisconsin or shareholders of the corporation.
3.03. Regular Meetings. A regular meeting of the Board of Directors
shall be held without other notice than this bylaw immediately after the annual
meeting of shareholders, and each adjourned session thereof. The place of such
regular meeting shall be the same as the place of the meeting of shareholders
which precedes it, or such other suitable place as may be announced at such
meeting of shareholders. The Board of Directors may provide, by resolution, the
time and place, either within or without the State of Wisconsin, for the holding
of additional regular meetings without other notice than such resolution.
3.04. Special Meetings. Special meetings of the Board of Directors may
be called by or at the request of the Chairman of the Board (if one is elected)
the President, or any two directors. The persons calling any special meeting of
the Board of Directors may fix any place, either within or without the State of
Wisconsin, as the place for holding any special meeting of the Board of
Directors called by them, and if no other place is fixed the place of meeting
shall be the principal business office of the corporation in the State of
Wisconsin.
3.05. Notice of Meetings. Notice of each meeting of the Board of
Directors (unless otherwise provided in or pursuant to Section 3.03) shall be
given by written notice delivered personally or mailed or given by telephone or
telegram to each director at his business or home address or at such other
address as such director shall have designated in writing filed with the
Secretary, in each case not less than 48 hours prior thereto. If mailed, such
notice shall be deemed to be delivered when deposited in the United States mail
so addressed, with postage thereon prepaid. If notice be given by telegram, such
notice shall be deemed to be delivered when the telegram is delivered to the
telegraph company; if by telephone, at the time the call is completed. The
attendance of a director at a meeting shall constitute a waiver of notice of
such meeting, except where a director attends a meeting and objects thereat to
the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
3.06. Quorum. Except as otherwise provided by the Wisconsin Business
Corporation Law or by the articles of incorporation or these bylaws, a majority
of the number of directors as provided in Section 3.01 shall constitute a quorum
for the transaction of business at any meeting of the Board of Directors, but a
majority of the directors present (though less than such quorum) may adjourn the
meeting from time to time without further notice.
<PAGE> 5
3.07. Manner of Acting. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors, unless the act of a greater number is required by the Wisconsin
Business Corporation Law or by the Articles of Incorporation or these Bylaws.
3.08. Conduct of Meetings. The Chairman of the Board, or if there is
none or in his absence, the President, and in his absence, a Vice President in
the order provided under Section 4.08, and in their absence, any director chosen
by the directors present, shall call meetings of the Board of Directors to order
and shall act as chairman of the meeting. The Secretary of the corporation shall
act as secretary of all meetings of the Board of Directors, but in the absence
of the Secretary, the presiding officer may appoint any Assistant Secretary or
any director or other person present to act as secretary of the meeting.
3.09. Vacancies. Any vacancy occurring in the Board of Directors,
including a vacancy created by an increase in the number of directors, may be
filled until the next succeeding annual election by the affirmative vote of a
majority of the directors then in office, though less than a quorum of the Board
of Directors; provided, that in case of a vacancy created by the removal of a
director(s) by vote of the shareholders, the shareholders shall have the right
to fill such vacancy at the same meeting or any adjournment thereof.
3.10. Compensation. The Board of Directors, by affirmative vote of a
majority of the directors then in office, and irrespective of any personal
interest of any of its members, may establish reasonable compensation of all
directors for services to the corporation as directors, officers or otherwise,
and the manner and time of payment thereof, or may delegate such authority to an
appropriate committee. The Board of Directors also shall have authority to
provide for or to delegate authority to an appropriate committee to provide for
reasonable pensions, disability or death benefits, and other benefits or
payments, to directors, officers and employees and to their estates, families,
dependents or beneficiaries on account of prior services rendered by such
directors, officers and employees to the corporation.
3.11. Presumption of Assent. A director who is present at a meeting of
the Board of Directors or a committee thereof of which he is a member at which
action on any corporate matter is taken shall be presumed to have assented to
the action taken unless his dissent shall be entered in the minutes of the
meeting or unless he shall file his written dissent to such action with the
person acting as the secretary of the meeting before the adjournment thereof or
shall forward such dissent by registered mail to the Secretary of the
corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such action.
3.12. Committees. The Board of Directors by resolution adopted by the
affirmative vote of a majority of the number of directors as provided in Section
3.01 may designate one or more committees, each committee to consist of three or
more directors elected by the Board of Directors, which to the extent provided
in said resolution as initially adopted, and as thereafter supplemented or
amended by further resolution adopted by a like vote, shall have and may
exercise, when the Board of Directors is not in session, the powers of the Board
of Directors in the management of the business and affairs of the corporation,
except action in respect to dividends to shareholders, election of the principal
officers or the filling of vacancies in the Board of Directors or committees
created pursuant to this section. The Board of Directors may elect one or more
of its members as alternate members of any such committee who may take the place
of any absent member or members at any meeting of such committee, upon request
by the President or upon request by the chairman of such meeting. Each such
committee shall fix its own rules governing the conduct of its activities and
shall make such reports to the Board of Directors of its activities as the Board
of Directors may request.
3.13. Meetings By Telephone or Other Communication Technology.
(a) Any or all directors may participate in a regular or special
meeting or in a committee meeting of the Board of Directors by, or conduct
the meeting through the use of, telephone or any other means of
communication by which either: (i) all participating directors may
simultaneously hear each other during the meeting or (ii) all communication
during the meeting is immediately transmitted to each participating
director, and each participating director is able to immediately send
messages to all other participating directors.
(b) If a meeting will be conducted through the use of any means
described in paragraph (a), all participating directors shall be informed
that a meeting is taking place at which official business may be transacted.
A director participating in a meeting by any means described in paragraph
(a) is deemed to be present in person at the meeting.
(c) If required by the Wisconsin Business Corporation Law, the identity
of each director participating in a meeting of the Board of Directors or a
committee thereof by any means described in paragraph (a) must be verified
before the directors vote at the meeting on (i) a plan of merger or
consolidation; (ii) to sell, lease, exchange or otherwise dispose of
substantial property or assets of the corporation; (iii) to voluntarily
dissolve the corporation or to revoke voluntary dissolution proceedings; or
(iv) to file for bankruptcy. The procedure for verifying a director's
identity shall be by disclosure by the director of a confidential Director
Identification Number assigned to such director in advance of the meeting by
the Secretary which is
<PAGE> 6
provided confidentially to the director with the notice of the meeting or
otherwise. A transaction within the meaning of subpart (ii) of this
paragraph (c) shall be one which involves the sale, lease, exchange or other
disposition of more than fifty percent (50%) in value of the corporation's
assets to a person other than a subsidiary of the corporation.
ARTICLE IV. OFFICERS
4.01. Number. The principal officers shall be a President, one or more
Vice Presidents (the number and designations to be determined by the Board of
Directors), a Secretary, and a Treasurer, each of whom shall be elected by the
Board of Directors. The Board of Directors may designate one of the Vice
Presidents as the Executive Vice President. Such other officers and assistant
officers as may be deemed necessary may be elected or appointed by the Board of
Directors or the President. Any two or more offices may be held by the same
person, except the offices of President and Secretary and the offices of
President and Vice President.
4.02. Election and Term of Office. The officers to be elected by the
Board of Directors shall be elected 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 election of officers shall not be held at such meeting,
such election shall be held as soon thereafter as conveniently may be. Each
officer shall hold office until his successor shall have been duly elected or
until his prior death, resignation or removal.
4.03. Removal. Any officer or agent may be removed by the Board of
Directors whenever in its judgment the best interests of the corporation will be
served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed. Election or appointment shall not of
itself create contract rights.
4.04. Vacancies. A vacancy in any principal office because of death,
resignation, removal, disqualification or otherwise, shall be filled by the
Board of Directors for the unexpired portion of the term.
4.05. Chairman of the Board. The Board of Directors may elect one of
its members the Chairman of the Board. The Chairman of the Board shall preside
at all meetings of the shareholders and directors at which he is present. He
shall be ex officio a member of all standing committees and shall be Chairman of
such committees as is determined by the Board of Directors. He shall have such
other powers and duties as may from time to time be prescribed by the bylaws or
by resolution of the Board of Directors.
4.06. President. The President shall be the principal executive officer
and, subject to the control of the Board of Directors, shall in general
supervise and control all of the business and affairs of the corporation. He
shall, in the absence of the Chairman, preside at all meetings of the
shareholders and of the Board of Directors. He shall have authority, subject to
such rules as may be prescribed by the Board of Directors, to appoint such
agents and employees of the corporation as he shall deem necessary, to prescribe
their powers, duties and compensation, and to delegate authority to them. Such
agents and employees shall hold office at the discretion of the President. He
shall have authority to sign, execute and acknowledge, on behalf of the
corporation, all deeds, mortgages, bonds, stock certificates, contracts, leases,
reports and all other documents or instruments necessary or proper to be
executed in the course of the corporation's regular business, or which shall be
authorized by resolution of the Board of Directors; and, except as otherwise
provided by law or the Board of Directors, he may authorize any Vice President
or other officer or agent of the corporation to sign, execute and acknowledge
such documents or instruments in his place and stead. In general he shall
perform all duties incident to the office of President and such other duties as
may be prescribed by the Board of Directors from time to time.
4.07. The Executive Vice President. The Executive Vice President, if
one be designated, shall assist the President in the discharge of supervisory,
managerial and executive duties and functions. In the absence of the President
or in the event of his death, inability or refusal to act, the Executive Vice
President shall perform the duties of the President and when so acting shall
have all the powers and duties of the President. He shall perform such other
duties as from time to time may be assigned to him by the Board of Directors or
the President.
4.08. The Vice Presidents. In absence of the President and the
Executive Vice President, or in the event of their death, inability or refusal
to act, or in the event for any reason it shall be impracticable for them to act
personally, the Vice President (or in the event there be more than one Vice
President, the Vice Presidents in the order designated by the Board of
Directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the President, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
President. Any Vice President may sign, with the Secretary or Assistant
Secretary, certificates for shares of the corporation; and shall perform such
other duties and have such authority as from time to time may be delegated or
assigned to him by the President or by the Board of Directors. The execution of
any instrument of the corporation by any Vice President shall be conclusive
evidence, as to third parties, of his authority to act instead of the President.
4.09. The Secretary. The Secretary shall:(a) keep the minutes of the
meetings of the shareholders and of the Board
<PAGE> 7
of Directors in one or more books provided for that purpose; (b) see that all
notices are duly given in accordance with the provisions of these bylaws or as
required by law; (c) be custodian of the corporate records and of the seal of
the corporation 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) keep or arrange for the keeping of a register of the post
office address of each shareholder which shall be furnished to the Secretary by
such shareholder; (e) sign with the President, or a Vice President, certificates
for shares of the corporation, the issuance of which shall have been authorized
by resolution of the Board of Directors; (f) have general charge of the stock
transfer books of the corporation; and (g) in general perform all duties
incident to the office of Secretary and have such other duties and exercise such
authority as from time to time may be delegated or assigned to him by the
President or by the Board of Directors.
4.10. The Treasurer. The Treasurer shall: (a) have charge and custody
of and be responsible for all funds and securities of the corporation; (b)
receive and give receipts for moneys due and payable to the corporation from any
source whatsoever, and deposit all such moneys in the name of the corporation in
such banks, trust companies or other depositaries as shall be selected in
accordance with the provisions of Section 5.04; and (c) in general perform all
of the duties incident to the office of Treasurer and have such other duties and
exercise such other authority as from time to time may be delegated or assigned
to him by the President or by the Board of Directors.
4.11. Assistant Secretaries and Assistant Treasurers. There shall be
such number of Assistant Secretaries and Assistant Treasurers as the Board of
Directors or President from time to time authorize. The Assistant Secretaries
may sign with the President or a Vice President certificates for shares of the
corporation the issuance of which shall have been authorized by a resolution of
the Board of Directors. The Assistant Secretaries and Assistant Treasurers, in
general, shall perform such duties and have such authority as shall from time to
time be delegated or assigned to them by the Secretary or the Treasurer,
respectively, or by the President or the Board of Directors.
4.12. Other Assistants and Acting Officers. The Board of Directors and
the President shall have the power to appoint any person to act as assistant to
any officer, or as agent for the corporation in his stead, or to perform the
duties of such officer whenever for any reason it is impracticable for such
officer to act personally, and such assistant or acting officer or other agent
so appointed by the Board of Directors or President shall have the power to
perform all the duties of the office to which he is so appointed to be
assistant, or as to which he is so appointed to act, except as such power may be
otherwise defined or restricted by the Board of Directors or President.
4.13. Salaries. The salaries of the principal officers shall be fixed
from time to time by the Board of Directors or by a duly authorized committee
thereof, and no officer shall be prevented from receiving such salary by reason
of the fact that he is also a director of the corporation.
ARTICLE V. CONTRACTS, LOANS, CHECKS
AND DEPOSITS
5.01. Contracts. The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute or deliver any
instrument in the name of and on behalf of the corporation, and such
authorization may be general or confined to specific instances. No contract or
other transaction between the corporation and one or more of its directors or
any other corporation, firm, association, or entity in which one or more of its
directors or officers are financially interested, shall be either void or
voidable because of such relationship or interest or because such director or
directors are present at the meeting of the Board of Directors or a committee
thereof which authorizes, approves or ratifies such contract or transaction or
because his or their votes are counted for such purpose, if (1) the fact of such
relationship or interest is disclosed or known to the Board of Directors or
committee which authorizes, approves or ratifies the contract or transaction by
a vote or consent sufficient for the purpose without counting the votes or
consents of such interested directors; or (2) the fact of such relationship or
interest is disclosed or known to the shareholders entitled to vote and they
authorize, approve or ratify such contract or transaction by vote or written
consent; or (3) the contract or transaction is fair and reasonable to the
corporation. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or a committee
thereof which authorizes, approves or ratifies such contract or transaction. In
the absence of other designation, all deeds, mortgages and instruments of
assignment or pledge made by the corporation shall be executed in the name of
the corporation by the President or one of the Vice-Presidents and by the
Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer; the
Secretary or an Assistant Secretary, when necessary or required, shall affix the
corporate seal thereto; and when so executed no other party to such instrument
or any third party shall be required to make any inquiry into the authority of
the signing officer or officers.
5.02. Loans. No indebtedness for borrowed money shall be contracted on
behalf of the corporation and no evidences of such 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.
<PAGE> 8
5.03. 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(s), employee(s) or agents of
the corporation and in such manner as shall from time to time be determined by
or under the authority of a resolution of the Board of Directors.
5.04. 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 a resolution of the Board of Directors.
5.05. Voting of Securities Owned by this Corporation. Subject always to
the specific directions of the Board of Directors, (a) any shares or other
securities issued by any other corporation and owned or controlled by this
corporation may be voted at any meeting of security holders of such other
corporation by the President of this corporation if he be present, or in his
absence by any Vice President of this corporation who may be present, and (b)
whenever, in the judgment of the President, or in his absence, of any Vice
President, it is desirable for this corporation to execute a proxy or written
consent in respect to any shares or other securities issued by any other
corporation and owned by this corporation, such proxy or consent shall be
executed in the name of this corporation by the President or one of the Vice
Presidents of this corporation, without necessity of any authorization by the
Board of Directors, affixation of corporate seal or countersignature or
attestation by another officer. Any person or persons designated in the manner
above stated as the proxy or proxies of this corporation shall have full right,
power and authority to vote the shares or other securities issued by such other
corporation and owned by this corporation the same as such shares or other
securities might be voted by this corporation.
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.01. Certificate for Shares. Certificates representing shares of the
corporation shall be in such form, consistent with law, as shall be determined
by the Board of Directors. Such certificates shall be signed by the President or
a Vice President and by the Secretary or an Assistant Secretary. All
certificates for shares shall be consecutively numbered or otherwise identified.
The name and address of the person to whom the shares represented thereby are
issued, with the number of shares and date of issue, shall be entered on the
stock transfer books of the corporation. All certificates surrendered to the
corporation for transfer shall be cancelled and no new certificate shall be
issued until the former certificate for a like number of shares shall have been
surrendered and cancelled, except as provided in Section 6.06.
6.02. Facsimile Signatures and Seal. The seal of the corporation, if
the corporation has elected to have a seal, on any certificates for shares may
be a facsimile. The signatures of the President or Vice President and the
Secretary or Assistant Secretary upon a certificate may be facsimiles if the
certificate is manually signed on behalf of a transfer agent or a registrar,
other than the corporation itself or an employee of the corporation.
6.03. Signature by Former Officers. In case any officer, who has signed
or whose facsimile signature has been placed upon any certificate for shares,
shall have ceased to be such officer before such certificate is issued, it may
be issued by the corporation with the same effect as if he were such officer at
the date of its issue.
6.04. Transfer of Shares. Prior to due presentment of a certificate for
shares for registration of transfer the corporation may treat the registered
owner of such shares as the person exclusively entitled to vote, to receive
notifications and otherwise to have and exercise all the rights and power of an
owner. Where a certificate for shares is presented to the corporation with a
request to register for transfer, the corporation shall not be liable to the
owner, or any other person suffering loss as a result of such registration of
transfer if (a) there were on or with the certificate the necessary
endorsements, and (b) the corporation had no duty to inquire into adverse claims
or has discharged any such duty. The corporation may require reasonable
assurance that said endorsements are genuine and effective and in compliance
with such other regulations as may be prescribed by or under the authority of
the Board of Directors.
6.05. Restrictions on Transfer. The face or reverse side of each
certificate representing shares shall bear a conspicuous notation of any
restriction imposed by the corporation upon the transfer of such shares.
6.06. Lost, Destroyed or Stolen Certificates. Where the owner claims
that his 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) 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.
6.07. Consideration for Shares. The shares of the corporation may be
issued for such consideration as shall be fixed from time to time by the Board
of Directors or any committee thereof, provided that any shares having a par
value shall not be issued for a consideration less than the par value thereof.
The consideration to be paid for shares may be paid in whole or in part, in
money, in other property, tangible or intangible, or in labor or services
actually performed for the corporation. When
<PAGE> 9
payment of the consideration for which shares are to be issued shall have been
received by the corporation, such shares shall be deemed to be fully paid and
nonassessable by the corporation. No certificate shall be issued for any share
until such share is fully paid.
6.08. Stock Regulations. The Board of Directors shall have the power
and authority to make all such rules and regulations not inconsistent with the
statutes of the State of Wisconsin as it may deem expedient concerning the
issue, transfer and registration of certificates representing shares of the
corporation.
ARTICLE VII. WAIVER OF NOTICE
Whenever any notice whatever is required to be given under the
provisions of the Wisconsin Business Corporation Law or under the provisions of
the articles of incorporation or bylaws, a waiver thereof in writing signed at
any time, whether before or after the time of the meeting, by the person or
persons entitled to such notice shall be deemed equivalent to the giving of such
notice. Such waiver by a shareholder in respect of any matter of which notice is
required under any provision of the Wisconsin Business Corporation Law shall
contain the same information as would have been required to be included in such
notice under any applicable provisions of said Law, except that the time and
place of meeting need not be stated.
<PAGE> 10
ARTICLE VIII.
UNANIMOUS CONSENT WITHOUT A MEETING
Any action required by the articles of incorporation or bylaws or any
provision of the Wisconsin Business Corporation Law to be taken at a meeting or
any other action which may be taken at a meeting may be taken without a meeting
if a consent in writing setting forth the action so taken shall be signed by all
of the shareholders, directors or members of a committee thereof entitled to
vote with respect to the subject matter thereof and such consent shall have the
same force and effect as a unanimous vote.
ARTICLE IX.
INDEMNIFICATION
9.01. General Indemnification.
The corporation shall indemnify any person who was or is a party or
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he or she is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by the person in connection with such action, suit or proceeding if the person
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the corporation or such other corporation,
partnership, joint venture, trust or other entity or enterprise, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his or her conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of no
contest or its equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the corporation or
such other corporation, partnership, joint venture, trust or other entity or
enterprise, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
9.02. Indemnification and Derivative Actions.
The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he or she is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other entity or enterprise against expenses, including
attorneys' fees, actually and reasonably incurred by him or her in connection
with the defense or settlement of such action or suit if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the corporation or such other corporation, partnership,
joint venture, trust or other entity or enterprise, and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his or her duty to the corporation or such
other corporation, partnership, joint venture, trust, or other entity or
enterprise unless and only to the extent that the court in which such action or
suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which such court shall
deem proper.
9.03. Successful Defense. To the extent that a director, officer,
employee or agent has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Sections 9.01 or 9.02, or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses, including attorneys' fees, actually and reasonably incurred by him in
connection therewith.
9.04. Manner of Authorization. Any indemnification under Sections 9.01
or 9.02, unless ordered by a court, shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Sections 9.01 or 9.02.
Such determination shall be made:
(1) By the board of directors by a majority vote of a quorum consisting
of directors who were not parties to such action, suit or proceeding;
(2) If such a quorum is not obtainable, or, even if obtainable a quorum
of disinterested directors so directs, by independent legal counsel in a
written opinion; or
<PAGE> 11
(3) By a majority of the shares entitled to vote thereon.
9.05. Advance Payments. Expenses, including attorneys' fees, incurred
in defending a civil or criminal action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding as authorized in the manner provided in Section 9.04 upon receipt of
an undertaking by or on behalf of the director, officer, employee or agent to
repay such amount unless it shall ultimately be determined that he is entitled
to be indemnified by the corporation as authorized in this article.
9.06. Nonexclusivity. The indemnification provided by this article
shall not be deemed exclusive of any other rights to which those indemnified may
be entitled under law or any agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
9.07. Insurance. The corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other entity or enterprise against any
liability asserted against him or her and incurred by him or her in any such
capacity or arising out of his or her status as such, whether or not the
corporation would have the power to indemnify him or her against such liability
under the provisions of this article.
9.08. Liberal Construction. In order for the corporation to obtain and
retain qualified directors, officers, employees and agents, the foregoing
provisions shall be liberally administered in order to afford maximum
indemnification of directors, officers, employees and agents and, accordingly,
the indemnification above provided for shall be granted in all cases unless to
do so would clearly contravene applicable law, controlling precedent or public
policy.
ARTICLE X
SEAL
The Board of Directors may provide a corporate seal which shall be
circular in form and shall have inscribed thereon the name of the corporation
and the state of incorporation and the words, "Corporate Seal."
ARTICLE XI
AMENDMENTS
11.01. By Shareholders. These bylaws may be altered, amended or
repealed and new bylaws may be adopted by the shareholders by affirmative vote
of not less than a majority of the shares present or represented at an annual or
special meeting of the shareholders at which a quorum is in attendance.
11.02. By Directors. These bylaws may also be altered, amended or
repealed and new bylaws may be adopted by the Board of Directors by affirmative
vote of a majority of the number of directors present at any meeting at which a
quorum is in attendance; but no bylaw adopted by the shareholders shall be
amended or repealed by the Board of Directors if the bylaw so adopted so
provides.
11.03. Implied Amendments. Any action taken or authorized by the
shareholders or by the Board of Directors, which would be inconsistent with the
bylaws then in effect but is taken or authorized by affirmative vote of not less
than the number of shares or the number of directors required to amend the
bylaws so that the bylaws would be consistent with such action, shall be given
the same effect as though the bylaws had been temporarily amended or suspended
so far, but only so far, as is necessary to permit the specific action so taken
or authorized.
ARTICLE XII
GENDER
12.01. Gender. The use of the masculine gender in these bylaws includes
the feminine gender where appropriate.
<PAGE> 1
EXHIBIT 5
(Form S-8)
March 23, 2000
Electronic Tele-Communications, Inc.
1915 MacArthur Road
Waukesha, WI 53188
Ladies and Gentlemen:
We are providing this opinion in connection with the Registration
Statement of Electronic Tele-Communications, Inc. (the "Company") on Form S-8
(the "Registration Statement") filed under the Securities Act of 1933, as
amended (the "Act"), with respect to the proposed sale of up to 175,000 shares
of Class A Common Stock, $.01 par value, of the Company (the "Shares") pursuant
to the Electronic Tele-Communications, Inc. 1999 Nonqualified Stock Option Plan
(the "Plan").
We have examined:
(i) the Registration Statement;
(ii) the Company's Restated Articles of Incorporation and Bylaws, as
amended to date;
(iii) the Plan;
(iv) the minutes of corporate proceedings regarding the issuance and
sale of the Shares by the Company; and
(v) such other documents and records as we have deemed necessary for
purposes of rendering this opinion.
For purposes of rendering this opinion, we have examined originals or
photocopies of the documents referred to above. In conducting such examination,
we have assumed the authenticity of all documents submitted to us as originals
and the conformity to original documents of all documents submitted to us as
copies.
Based upon the foregoing, it is our opinion that:
1. The Company is validly existing under the laws of the State of
Wisconsin.
2. The Shares to be sold from time to time pursuant to the Plan which
are original issuance shares, when issued and paid for as
contemplated by the Registration Statement and the Plan, will be
validly issued, fully paid and nonassessable by the Company,
subject to the personal liability which may be imposed on
shareholders by Section 180.0622(2)(b) of the Wisconsin Business
Corporation Law, as judicially interpreted, for debts owing to
employees for services performed, but not exceeding six months
service in any one case.
One of the Company's directors, Peter J. Lettenberger, is a partner of
Quarles & Brady LLP which serves as legal counsel to the Company.
We consent to the filing of this opinion as an Exhibit to the
Registration Statement. In giving our consent, we do not admit that we are
"experts" within the meaning of Section 11 of the Act, or that we come within
the category of persons whose consent is required by Section 7 of the Act.
Very truly yours,
/s/ Quarles & Brady LLP
QUARLES & BRADY LLP
<PAGE> 1
EXHIBIT 23.1
(Form S-8)
CONSENT OF ERNST & YOUNG LLP
We consent to the incorporation by reference in this Registration
Statement (Form S-8) pertaining to the Electronic Tele-Communications, Inc. 1999
Non-Qualified Stock Option Plan of our reports dated February 4, 2000, with
respect to the consolidated financial statements of Electronic
Tele-Communications, Inc. incorporated by reference in its Annual Report (Form
10-K) for the year ended December 31, 1999, and the related financial statement
schedule included therein, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Milwaukee, Wisconsin
March 24, 2000
<PAGE> 1
EXHIBIT 99
(Form S-8)
ELECTRONIC TELE-COMMUNICATIONS, INC.
1999 NONQUALIFIED STOCK OPTION PLAN
As Amended February 11, 2000
1. PURPOSE.
The purpose of this Plan is to promote the growth and development of
Electronic Tele-Communications, Inc. (the "Company") by (a) providing
increased long-term incentives for employees and non-employee directors
of the Company and any present or future subsidiary of the Company and
(b) facilitating the efforts of the Company and its Subsidiaries to
obtain and retain employees and directors of outstanding ability. This
Plan provides for the granting of nonqualified stock options which are
intended not to qualify for the treatment provided under Section 422A
of the Internal Revenue Code.
2. ADMINISTRATION.
(a) The Plan shall be administered by the Stock Option Committee (the
"Committee") of the Board of Directors of the Company. The Stock Option
Committee shall consist of at least three non-employee members of the
Board of Directors. A majority of the members of the Committee shall
constitute a quorum. The approval of such a quorum, expressed by vote
at a meeting, or in writing without a meeting, shall constitute the
action of the Committee and shall be valid and effective for all
purposes of the Plan.
(b) The Committee is authorized, subject to the provisions of the Plan,
to adopt, amend and rescind such rules and regulations as it may deem
appropriate for the administration of the Plan, and to make
determinations and interpretations which it deems consistent with the
Plan's provisions. The Committee's determinations and interpretations
shall be final and conclusive.
3. ELIGIBILITY.
(a) In any plan year, all persons who have been employed by the Company
or a Subsidiary, including those persons who have been employed by a
Subsidiary prior to the date on which it became a Subsidiary, shall be
eligible to receive options under the plan without regard to their
length of service.
(b) All non-employee directors of the Company or its Subsidiaries shall
be eligible to receive options under the Plan without regard to the
length of their service with the Company.
(c) Notwithstanding the foregoing, no person owning five percent (5%)
or more of any class of stock in the Company, other than a full time
employee, shall be eligible to receive options under this Plan.
4. SHARES SUBJECT TO OPTIONS.
(a) The stock to be subject to options under the Plan shall be shares
of the Company's Class A Common Stock, $.01 par value, subject to
adjustment under Paragraph 13 hereof, and may be authorized but
un-issued Class A Common Stock or Class A Common Stock issued and
reacquired by the Company.
(b) The aggregate number of shares which may be issued pursuant to
exercises of options granted under the Plan shall not exceed One
Hundred Seventy-five Thousand (175,000) shares of the Company's Class A
Common Stock, subject to adjustment under paragraph 13 hereof.
(c) Shares subject to and not issued under an option which expires or
terminates or is cancelled for any reason during the term of the Plan
shall again be available for the granting of options under the Plan.
5. EXERCISE PRICE.
(a) The exercise price at which shares may be purchased under each
option shall be not less than 100 percent of the Fair Market Value of
the shares on the date on which the option is granted. For all purposes
of this Plan, the term "Fair Market Value" shall be the average of the
highest and lowest sale prices of the stock, on the date of grant, as
reported by NASDAQ (the National Association of Securities Dealers,
Inc. Automated Quotation System). However, if at any time the Class A
Common Stock is listed on any exchange, the "Fair Market Value" shall
be the average of the reported highest and lowest prices at which
shares of Class A Common Stock are sold on such exchange on the date
the option is granted. In the absence of reported sales on NASDAQ or of
such exchange on the said date, the "Fair Market Value" shall be the
average of the reported closing bid and asked prices for the shares on
NASDAQ or such exchange on the date the option is granted.
(b) The cash proceeds of the sale of stock subject to an option are to
be added to the general funds of the Company available for its
corporate purposes.
<PAGE> 2
Electronic Tele-Communications, Inc. 1999 Nonqualified Stock Option Plan
April 16, 1999 Page 2 of 4
6. GRANTING OF OPTIONS.
(a) The Committee may from time to time at its discretion, subject to
the provisions of the Plan, determine which options shall be granted
and at the time of each grant determine those eligible employees and
non-employee directors to whom options shall be granted, the number of
shares subject to such options, the date or dates on which the options
become exercisable, either wholly or in part, and the expiration date
of the options.
(b) Each option shall be evidenced by a written agreement containing
terms and conditions established by the Committee consistent with the
provisions of the Plan.
7. TERM OF PLAN.
Options may be granted under the Plan at any time up to December 31,
2009, on which date the Plan shall expire except as to options the
outstanding, which options shall remain in effect until they have been
exercised or have expired or terminated.
8. EXERCISE OF OPTIONS.
(a) Options granted under the Plan may be exercised only in accordance
with the terms established by the Committee, but no option shall be
exercisable until the optionee has completed at least the number of
years of continuous employment, or service as a director, from the date
of grant of each option as follows, and then the option shall be
exercisable for any amount of shares up to the maximum percentage of
shares covered thereunder as follows:
<TABLE>
<CAPTION>
Number of Completed Maximum
Years of Continuous Percentage of
Employment or Service Shares for Which
After the Date of Option is
Grant of Option Exercisable
-------------------- ----------------
<S> <C>
Less than 1 Zero
At least 1 but less than 2 20%
At least 2 but less than 3 40%
At least 3 but less than 4 60%
At least 4 but less than 5 80%
At least 5 100%
</TABLE>
(b) Unless otherwise determined by the Committee at the time of grant,
each option granted hereunder shall expire on a date which is ten years
after the date on which the option was granted.
(c) Although the Company intends to exert its best efforts so that the
shares purchasable upon the exercise of an option, when it first
becomes exercisable, will be registered under, or exempt from the
registration requirements of, the Federal Securities Act of 1933 ("the
Act") and any applicable state securities law, if the exercise of an
option would otherwise result in the violation by the Company of any
provision of the Act or of any state securities law, the Company may
require that such exercise be deferred until the Company has taken
appropriate action to avoid any such violation.
(d) The exercise price for shares purchased shall be paid in full at
the time of exercise and no shares shall be issued until full payment
therefore is made. Such payment may be made either (i) in cash or (ii)
by delivering shares of the Company's common stock which have been
beneficially owned by the optionee, the optionee's spouse, or both of
them for a period of at least six months prior to the time of exercise
(the "Delivered Stock") or (iii) by delivering a combination of cash
and Delivered Stock. Delivered Stock shall be valued at its Fair Market
Value determined as of the date of exercise of the option.
(e) An optionee shall not be deemed the holder of any shares subject to
the option until the shares are fully paid and issued to him upon
exercise of such option.
9. TRANSFERABILITY OF OPTIONS.
An option granted under the Plan may not be transferred except by will
or the laws of descent and distribution and may be exercised during the
lifetime of optionee (to the extent exercisable) only by him. The
option and any rights and privileges pertaining thereto shall not be
transferred, assigned, pledged or hypothecated by him in any way
whether by operation of law or otherwise and shall not be subject to
execution, attachment or similar process.
<PAGE> 3
Electronic Tele-Communications, Inc. 1999 Nonqualified Stock Option Plan
April 16, 1999 Page 3 of 4
10. TERMINATION OF EMPLOYMENT OR SERVICE.
(a) If an optionee ceases to serve as a director or be employed by the
Company or a Subsidiary for any reason (except death or retirement as
defined in 11) after optionee shall have continuously served as a
director or been so employed for one year after the date of grant of an
option, the optionee may, at any time within 90 days after the date of
such termination but in no event later than the date of expiration of
the option, exercise the option to the extent he was entitled to do so
on the date of such termination; provided, however, that if such
optionee is dismissed or his service as a director is terminated for
cause, of which the Committee shall be the sole judge, his option shall
forthwith expire. Any options or portions of options of terminated
employees not so exercised shall terminate.
(b) The Committee may determine that, for the purpose of the Plan, an
optionee who is on a leave of absence will be considered as in the
continuous employment or service of the Company or a Subsidiary.
(c) A change in employment or service from the Company to a Subsidiary
or from a Subsidiary to the Company or another Subsidiary shall not be
a termination of employment or service or an interruption of continuous
employment or service for the purposes of the Plan.
(d) Nothing in the Plan or in any option granted under the Plan shall
confer on any employee or director any right to continue in the employ
or service of the Company or its Subsidiaries, or affect the right of
the Company or its Subsidiaries to terminate his employment or service
at any time.
11. RETIREMENT.
If an optionee retires from employment or service with the Company or a
Subsidiary in good standing having accumulated 75 points, consisting of
complete years of service plus whole years of age, and on the date of
his retirement any option granted to him under this Plan is outstanding
and unexercised, then regardless of whether such option would have been
exercisable at the time of retirement under paragraph 8(a) hereof, the
optionee may exercise such option at any time within one year after the
date of retirement, but not later than the expiration date of the
option. Any options or portions of options of retired optionees not so
exercised shall terminate.
12. DEATH.
If an optionee dies while in the employ or service of the Company or a
Subsidiary, or within 90 days after optionee's retirement as defined in
11 from such employment or service, the person or persons to whom the
option is transferred by will or the laws of descent and distribution
may, at any time within one year after the date of death but not later
than the expiration date of the option, exercise all of the options
granted to the optionee under this Plan, whether or not such options
would have been fully exercisable on such date under paragraphs 8(a) or
11 hereof. Any options or portions of options of deceased optionees not
so exercised shall terminate.
13. CHANGES IN COMMON STOCK.
In the event of the reorganization, re-capitalization, stock split,
stock dividend, merger, consolidation, combination or exchange of
shares, rights offering, or any other change affecting the Class A
Common Stock of the Company, the Committee shall make such changes in
the aggregate number and kind of shares available under the Plan and in
the number, price, and kind of shares covered by options granted or to
be granted under the Plan as are appropriate and equitable to prevent
any diminution or enlargement of the rights of participants in the
Plan.
14. AMENDMENT OR DISCONTINUANCE.
The Committee may, at any time, without the approval of the
stockholders of the Company, alter, amend, modify, accelerate vesting,
suspend or discontinue the Plan, but may not, without the consent of
the holder of an option, make any alteration which would adversely
affect an option previously granted under the Plan or, without the
approval of the stockholders of the Company, make any alteration which
would (a) increase the aggregate number of shares subject to options
under the Plan, except for adjustments pursuant to paragraph 13; (b)
decrease the minimum option price; or (c) extend the term of the Plan
or the maximum period during which any option may be exercised.
<PAGE> 4
Electronic Tele-Communications, Inc. 1999 Nonqualified Stock Option Plan
April 16, 1999 Page 4 of 4
15. LIABILITY.
No member of the Board of Directors or officers or employees of the
Company or its Subsidiaries shall be personally liable for any action,
omission or determination made in good faith in connection with the
Plan.
16. EFFECTIVE DATE.
This Plan, recommended by the Compensation / Stock Option Committee of
the Board of Directors on April 16, 1999 and subsequently approved by
the Board of Directors via Unanimous Consent, shall become effective
upon the approval of the voting stockholders of the Company at the 1998
annual meeting of stockholders on May 7, 1999, or any adjournment
thereof. No option granted hereunder shall be or become exercisable
unless and until such stockholder approval has occurred.
17. DISSOLUTION OR MERGER.
Anything contained herein to the contrary notwithstanding, upon the
dissolution or liquidation of the Company, or upon any merger in which
the Company is not the surviving corporation, at any time prior to the
expiration date of an option or the termination of an option hereunder,
an optionee shall have the right within sixty (60) days prior to the
effective date of such dissolution, liquidation or merger, to surrender
then outstanding and unexercised options to the Company for cash,
subject to the discretion of the Committee as to the exact timing of
said surrender, regardless of whether the option was then exercisable
under the provisions of paragraph 8(a). Notwithstanding the foregoing,
however, in the case of a retired optionee, the optionee's right to
surrender his outstanding and unexercised options under this paragraph
shall be available only to the extent that at the time of any such
surrender optionee would have been entitled to exercise his option
under paragraph 11 hereof. The amount of cash to be paid to the
optionee for all such surrendered options shall be equal to the number
of shares of Class A Common Stock subject to such surrendered options,
multiplied by the difference between the option price per share and the
Fair Market Value per share of Class A Common Stock of the Company at
the time of surrender.
18. MISCELLANEOUS.
(a) The term "Board of Directors" herein shall mean the Board of
Directors of the Company and, to the extent that any powers and
discretion vested in the Board of Directors are delegated to any
committee of the Board, the term "Board of Directors" shall also mean
such committee.
(b) The term "Subsidiary" used herein shall mean any corporation more
than 50 percent of whose total combined voting stock of all classes is
held by the Company or by another corporation qualifying as a
Subsidiary within this definition.
19. WITHHOLDING TAXES.
Pursuant to applicable Federal and state laws, the Company may be
required to collect withholding taxes upon the exercise of an option.
The Company may require, as a condition to the exercise of an option,
that the optionee concurrently pay to the Company the entire amount or
a portion of any taxes which the Company is required to withhold by
reason of such exercise, in such amount as the Committee or the Company
in its discretion may determine. In lieu of part or all of any such
payment, the optionee may elect, subject to such rules and regulations
as the Committee may adopt from time to time, to have the Company
withhold from the shares to be issued upon exercise of the option that
number of shares having a Fair Market Value equal to the amount which
the Company is required to withhold.
1999 Stock Option Plan/DWD
