SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended May 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OF 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 0-16130
NORTHLAND CRANBERRIES, INC.
(Exact name of registrant as specified in its charter)
Wisconsin 39-1583759
(State or other jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or organization)
800 First Avenue South
P.O. Box 8020
Wisconsin Rapids, Wisconsin 54495-8020
(Address of principal executive offices)
Registrant's telephone number, including area code (715)-424-4444
Former name, former address and former fiscal year, if changed since last
report.
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15 (d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days. Yes X
No
APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY PROCEEDINGS DURING THE
PRECEDING FIVE YEARS:
Indicate by check mark whether the registrant has filed all documents
and reports required to be filed by Sections 12, 13 or 15 (d) of the
Securities Exchange Act of 1934 subsequent to the distribution of
securities under a plan confirmed by a court.
Yes No
APPLICABLE ONLY TO CORPORATE ISSUERS: Indicate the number of shares
outstanding of each of the issuer's classes of common stock, as of the
latest practicable date:
Class A Common Stock June 30, 1997 13,204,620
Class B Common Stock June 30, 1997 636,202
<PAGE>
NORTHLAND CRANBERRIES, INC.
FORM 10-Q INDEX
PART I. FINANCIAL INFORMATION Page
Item 1. Financial Statements
Condensed Consolidated Balance Sheets . . . . . . . . . . 3
Condensed Consolidated Statements of Operations . . . . 4-5
Condensed Consolidated Statements of Cash Flow . . . . . . 6
Notes to Condensed Consolidated
Financial Statements . . . . . . . . . . . . . . . . . 7
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations . . . . . . . . . . 8-10
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K . . . . . . . . . . . . . 11
SIGNATURE . . . . . . . . . . . . . . . . . . . . . . . . 12
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
NORTHLAND CRANBERRIES, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS)
ASSETS
(Unaudited)
May 31, August 31,
1997 1996
Current assets:
Cash and cash equivalents $ 186 $ 266
Accounts and notes receivable 8,635 2,631
Investments 1,260 1,260
Inventories 21,787 12,414
Other 1,460 922
Deferred income taxes 1,124 1,124
------- -------
Total current assets 34,452 18,617
------- -------
Property and equipment - at cost 159,959 141,098
Less accumulated depreciation 22,189 18,609
------- -------
Net property and equipment 137,770 122,489
Investments 58 1,260
Leasehold interests, net 1,079 1,197
Other 2,770 1,922
------- -------
Total assets $ 176,129 $ 145,485
======= =======
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 1,458 $ 2,593
Accrued liabilities 5,099 5,914
Current portion of long-term
obligations 3,603 3,560
------- -------
Total current liabilities 10,160 12,067
Long-term obligations 79,669 56,978
Deferred income taxes 8,017 7,381
------- -------
Total liabilities 97,846 76,426
------- -------
Shareholders' equity:
Common stock - Class A 132 127
Common stock - Class B 6 6
Additional paid-in capital 67,788 60,184
Retained earnings 10,357 8,742
------- -------
Total shareholders' equity 78,283 69,059
------- -------
Total liabilities and
shareholders' equity $ 176,129 $ 145,485
======= =======
See accompanying notes to condensed consolidated financial statements
<PAGE>
NORTHLAND CRANBERRIES, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS EXCEPT PER SHARE AMOUNTS)
(Unaudited)
For the 3 months
ended May 31,
1997 1996
Revenues $10,377 $6,675
Cost of sales 5,060 2,772
------- -------
Gross profit 5,317 3,903
Costs and expenses:
Selling, general and administrative 3,676 1,808
Interest 1,247 660
------- -------
Total costs and expenses 4,923 2,468
------- -------
Income before income taxes 394 1,435
Income taxes 169 580
------- -------
Net income $ 225 $ 855
======= =======
Net income per common share (based
on 14,281,691 and 13,792,156
weighted average common shares
outstanding, respectively): $ 0.02 $ 0.06
======= =======
<PAGE>
NORTHLAND CRANBERRIES, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS EXCEPT PER SHARE AMOUNTS)
(Unaudited)
For the 9 months
ended May 31,
1997 1996
Revenues $34,810 $32,359
Cost of sales 16,233 13,748
------- -------
Gross profit 18,577 18,611
Costs and expenses:
Selling, general and administrative 10,010 4,108
Interest 3,156 1,998
------- -------
Total costs and expenses 13,166 6,106
------- -------
Income before income taxes 5,411 12,505
Income taxes 2,157 4,931
------- -------
Net income $ 3,254 $ 7,574
======= =======
Net income per common share (based
on 14,293,406 and 13,753,408
weighted average common shares
outstanding, respectively): $ 0.23 $ 0.55
======= =======
<PAGE>
NORTHLAND CRANBERRIES, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
(Unaudited)
For the 9 months
ended May 31,
1997 1996
Cash flows from operating activities:
Net income $3,254 $7,574
Adjustments to reconcile net income to
net cash provided by (used for)
operating activities:
Depreciation and amortization 3,792 2,942
Changes in assets and liabilities:
Receivables and other current
assets (6,542) (3,082)
Inventories (9,373) (2,549)
Accounts payable and accrued
liabilities (1,496) 1,673
Deferred income taxes 1,631 2,888
-------- --------
Net cash provided by (used
for) operating activities (8,734) 9,446
-------- --------
Investing activities:
Acquisitions of cranberry operations (7,025) (2,050)
Property and equipment additions, net (6,603) (9,863)
Investments 1,202 1,259
Other (810) (332)
-------- --------
Net cash used for investing
activities (13,236) (10,986)
-------- --------
Financing activities:
Increase (decrease) in debt 22,734 (1,798)
Dividends paid (1,639) (1,391)
Net proceeds from common
stock offering -- 4,016
Exercise of stock options 985 --
Other (190) 534
-------- --------
Net cash provided by
financing activities 21,890 1,361
-------- --------
Net decrease in cash and
cash equivalents (80) (179)
Cash and cash equivalents:
Beginning of period 266 361
-------- --------
End of period $ 186 $ 182
======== ========
Supplemental disclosures of cash
flow information:
Cash paid for:
Interest (net of amount capitalized) $ 2,698 $ 1,548
======== ========
<PAGE>
NORTHLAND CRANBERRIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 BASIS OF PRESENTATION
The condensed consolidated financial statements included herein
have been prepared by the Company without audit, pursuant to the rules and
regulations of the Securities and Exchange Commission. In the opinion of
the Company, the foregoing statements contain all adjustments necessary to
present fairly the financial position of the Company as of May 31, 1997,
and its results of operations and cash flows for the three- and nine-month
periods ended May 31, 1997 and 1996, respectively. The Company's
consolidated balance sheet as of August 31, 1996 included herein has been
taken from the Company's audited financial statements of that date
included in the Company's latest annual report.
Certain information and footnote disclosures normally included
in financial statements prepared in accordance with generally accepted
accounting principles have been omitted pursuant to such rules and
regulations, although the Company believes that the disclosures are
adequate to make the information presented not misleading. It is
suggested that these condensed financial statements can be read in
conjunction with the financial statements and the notes thereto included
in the Company's latest annual report.
The Company periodically reviews long-lived assets to assess
recoverability and impairments will be recognized in operating results if
a permanent diminution in value were to occur.
NOTE 2 STOCK SPLIT
On June 26, 1996, the Company's Board of Directors authorized a
two-for-one stock split effected in the form of a 100% stock dividend
distributed on September 3, 1996, to shareholders of record on August 15,
1996. Shareholders' equity has been adjusted by reclassifying from
additional paid-in capital to common stock the par value of the additional
shares arising from the split. In addition, all references in the
financial statements to share and per share amounts for periods prior to
the distribution of the stock dividend have been restated to retroactively
reflect the stock dividend.
NOTE 3 ACQUISITIONS
On September 27, 1996, the Company acquired a 108-acre cranberry
property located in northern Wisconsin. The total cost of the acquisition
was $4.9 million in cash and 169,014 shares of the Company's Class A
Common Stock. On December 30, 1996, the Company acquired a 73-acre
cranberry property located in central Wisconsin. The total cost of the
acquisition was $2.2 million in cash and 100,000 shares of the Company's
Class A Common Stock.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
Total revenues for the three months ended May 31, 1997 were
$10.4 million compared to $6.7 million in the prior year's quarter. Total
revenues for the nine months ended May 31, 1997 were $34.8 million
compared to $32.4 million during the same period in the prior fiscal year.
Sales of the Company's Northland 100% juice cranberry blends continued to
increase during the fiscal 1997 third quarter as the Company continued its
national product roll-out strategy and also experienced sales growth in
existing markets, resulting in increased fiscal 1997 revenues. In April
1997 the Company announced that its pending acquisition of a private label
juice bottler and distributor was abruptly and unexpectedly terminated by
the seller for undisclosed reasons, apparently unrelated to Northland or
the terms and conditions of the acquisition. The completion of this
acquisition would have immediately established Northland as a very
significant supplier of private label cranberry juice products. Based on
its expectations that this acquisition would be consumated, the Company
took a number of actions to conserve its supply of cranberries and to
delay its own entry into the private label cranberry juice market. The
sudden and unexpected termination of the planned acquisition resulted in
the Company's inability to convert a significant amount of raw frozen
fruit inventory into revenues during the reporting period. That inventory
currently remains in the Compnay's freezer and will contribute to future
revenues as it is utilized in the production of the Company's branded
juice, cranberry juice concentrate and other value added products.
For the three- and nine-month periods ended May 31, 1997, cost
of sales were $5.1 million and $16.2 million, respectively, or 48.8% and
46.6% of total revenues for each respective period. During the same
periods in fiscal 1996, cost of sales were $2.8 million and $13.7 million,
respectively, or 41.5% and 42.5% of total revenues for each respective
period. As the Company continues the implementation of its "marsh to
market" business strategy, its product mix is changing from only selling
raw fruit to marketing and selling value-added processed cranberry
products. As a result of the substantially changed nature of the
Company's business and product mix, cost of sales comparisons between
periods are not particularly meaningful or informative.
For the three- and nine-month periods ended May 31, 1997,
selling, general and administrative expenses were $3.7 million and $10.0
million, respectively, or 35.4% and 28.8% of total revenues for each
respective period. During the same three- and nine-month periods in
fiscal 1996, selling, general and administrative expenses were $1.8
million and $4.1 million, respectively, or 27.1% and 12.7% of total
revenues for each respective period. This expected increase between years
in selling, general and administrative expenses was primarily attributable
to costs related to the ongoing implementation of the Company's "marsh to
market" business strategy, including the continued rollout of its branded
juice product line. The Company has committed to a major national media
campaign and other significant promotional activities in support of its
branded juice rollout in the fiscal 1997 fourth quarter. As the Company
continues the national roll-out of its juice products, it is likely that
selling, general and administrative expenses, as a percentage of total
revenue, will increase.
Interest expense was $1.2 million for the three-month period
ended May 31, 1997 compared to $660,000 during the same period in fiscal
1996. For the nine months ended May 31, 1997, interest expense was $3.2
million compared to $2.0 million during the same period in fiscal 1996.
The increase in interest expense was due to increased debt levels, which
resulted from funding marsh acquisitions, property and equipment additions
and seasonal operating activities.
The Company reported fiscal 1997 third quarter net income of
$225,000, or $0.02 per share . Fiscal 1996 third quarter net income was
$855,000, or $0.06 per share (on a post-stock split basis). For the nine-
months ended May 31, 1997, the Company reported net income of $3.3
million, or $0.23 per share. Fiscal 1996 net income was $7.6 million, or
$0.55 per share. Because of the actions taken by the Company to conserve
its supply of cranberries and to delay its entry into the private label
cranberry juice markets, in anticipation that the acquisition of the
private label juice bottler and distributor would be completed, the
Company is reporting lower than expected revenues and, as a result,
substantially lower than expected fiscal 1997 earnings. Fiscal 1997
fourth quarter promotional spending to support the national rollout of the
Company's branded juice product line is expected to further reduce
earnings and is anticipated to result in a net loss for that period,
although the Company will still report a profit for the fiscal year.
FINANCIAL CONDITION
Net cash used in operating activities of $8.7 million in the
first nine months of fiscal 1997, compared to $9.4 million provided by
operating activities in the same period in fiscal 1996, is the result of
the Company's changing business nature and lower than expected third
quarter earnings. In fiscal 1996, the Company presold the majority of its
crop under fixed price contracts to cranberry product processors in its
first quarter and received full payment for the sales in its third
quarter. Under the Company's "marsh to market" business strategy, the
Company stored the majority of its fiscal 1997 crop supply in its freezer
facility to support sales throughout its fiscal year, resulting in
significant increases in inventory and accounts receivable at May 31,
1997. The Company's current ratio was 3.39 to 1.00 at May 31, 1997
compared to a current ratio of 1.54 to 1.00 at August 31, 1996.
Net cash used for investing activities increased during the
nine-month period ended May 31, 1997 to $13.2 million from $11.0 million
during the same period in the prior fiscal year. The increase in fiscal
1997 investing activities was due primarily to the Company's acquisition
of two cranberry properties during the nine-month period ended May 31,
1997. On September 27, 1996 the Company acquired a 108-acre cranberry
property located in northern Wisconsin. The total cost of the acquisition
was $4.9 million in cash and 169,014 shares of the Company's Class A
Common Stock. On December 30, 1996, the Company acquired a 73-acre
cranberry property located in central Wisconsin. The total cost of the
acquisition was $2.2 million in cash and 100,000 shares of the Company's
Class A Common Stock. Other fiscal 1997 property and equipment additions
were $6.6 million compared to property and equipment additions of $9.9
million in fiscal 1996.
Net cash provided by financing activities was $21.9 million in
the nine-month period ended May 31, 1997, compared to $1.4 million during
the same period in the prior fiscal year. The increase was primarily due
to a $22.7 million increase in the Company's long-term debt. The
Company's debt increased as a result of financing the $7.1 million cash
portion of its fiscal 1997 cranberry marsh acquisitions, $6.6 million in
property and equipment additions and $9.0 million for seasonal operating
activities. The Company's total debt (including current portion) was
$83.3 million at May 31, 1997 for a total debt-to-equity ratio of 1.06 to
1 compared to total debt of $60.5 million and a total debt-to-equity ratio
of 0.88 to 1 at August 31, 1996. The Company utilizes its revolving bank
credit facility, together with cash generated from operations, to fund its
working capital requirements throughout its fiscal year. As of May 31,
1997, the principal amount outstanding under the Company's revolving
credit facility was $37.0 million, with an additional $8.0 million
available under its credit facilities with a syndicate of regional banks
until September 1999. The Company believes its credit facilities,
together with cash generated from operations, are sufficient to fund its
ongoing operational needs over the remainder of fiscal 1997.
On May 8, 1997, the Company entered an agreement in principle to
acquire the stock of Atoka Cranberries, Inc. Atoka, based in Quebec,
Canada, has a total of 424 planted cranberry acres in various stages of
maturity on 2,700 acres of land. The purchase price of the transaction is
U.S. $28.5 million, payable $13 million in cash, with the remainder in
Northland convertible notes. The notes will bear interest at 7%, mature
and be payable in five years and will be convertible into one share of
Northland Class A Common Stock for each $20 of principal amount, or an
aggregate of 775,000 current shares upon full conversion (approximately 5%
of current fully dilutive post conversion shares).
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain matters discussed in this Management's
Discussion and Analysis of Financial Condition and
Results of Operations are "forward-looking statements"
intended to qualify for the safe harbors from
liability established by the Private Securities
Litigation Reform Act of 1995. These forward-looking
statements can generally be identified as such because
the context of the statement will include such words
as the Company "believes," "anticipates," "expects,"
or words of similar import. Similarly, statements
that describe the company's future plans, objectives
or goals are also forward-looking statements. Such
forward-looking statements are subject to certain
risks and uncertainties which are described in close
proximity to such statements and which could cause
actual results to differ materially from those
currently anticipated. Shareholders, potential
investors and other readers are urged to consider
these factors carefully in evaluating the forward-
looking statements and are cautioned not to place undo
reliance on such forward-looking statements. The
forward-looking statements made herein are only made
as of the date of this Form 10-Q and the Company
undertakes no obligation to publicly update such
forward-looking statements to reflect subsequent
events or circumstances.
<PAGE>
PART II - OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a. Exhibits
Exhibit 3.1 - Amendments to the By-Laws of Northland
Cranberries, Inc.
Exhibit 3.2 - By-Laws of Northland Cranberries, Inc., as Amended
Exhibit 27 - Financial Data Schedule
b. Form 8-K
No reports on Form 8-K were filed by the Company during the
quarterly period to which this Form 10-Q relates.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Company has duly caused this report to be signed on its behalf by the
undersigned Chief Financial Officer thereunto duly authorized.
NORTHLAND CRANBERRIES, INC.
DATE: July 14, 1997 By: /s/ John Pazurek
John Pazurek
Chief Financial Officer
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
3.1 Amendments to the By-Laws of Northland Cranberries, Inc.
3.2 By-Laws of Northland Cranberries, Inc., as Amended
27 Financial Data Schedule
Exhibit 3.1
Amendments to the By-Laws of Northland Cranberries, Inc.
1. Effective April 11, 1997, Section 4.06 of the Company's By-laws was
amended to read in its entirety as follows:
4.06 Chairman of the Board. The Chairman of the Board, if
one be chosen by the Board of Directors, shall preside at all
meetings of the Board of Directors and of the shareholders and
shall perform all duties incident to the office of the Chairman
of the Board of the corporation and such other duties as may be
prescribed by the Board of Directors from time to time.
2. Effective April 11, 1997, Section 4.07 of the Company's By-laws was
renumbered Section 4.10, and a new section 4.07 was added to read in
its entirety as follows:
4.07 Chief Executive Officer. The Board of Directors shall
from time to time designate the Chairman of the Board, if any,
or the President of the corporation as the Chief Executive
Officer of the corporation. The President shall be the Chief
Executive Officer whenever the office of Chairman of the Board
of the corporation is vacant. Subject to the control of the
Board of Directors, the Chief Executive Officer shall in general
supervise and control all of the business and affairs of the
corporation. He or she shall have authority, subject to such
rules as may be prescribed by the Board of Directors, to appoint
and remove such agents and employees of the corporation as he or
she shall deem necessary to prescribe their powers, duties and
compensation, and to delegate authority to them. He or she
shall have authority to sign, execute and acknowledge, on behalf
of the corporation, all deeds, mortgages, securities, contracts,
leases, reports, and all other documents or other 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 or she may
authorize any elected President, Vice President or other officer
or agent of the corporation to sign, execute and acknowledge
such documents or instruments in his or her place and stead. In
general, he or she shall perform all duties incident to the
office of Chief Executive Officer of the corporation and such
other duties as may be prescribed by the Board of Directors from
time to time.
3. Effective April 11, 1997, Section 4.08 of the Company's By-laws was
renumbered Section 4.11, and a new Section 4.08 was added to read in
its entirety as follows:
4.08 President. Unless the Board of Directors otherwise
provides, in the absence of the Chairman of the Board or in the
event of his or her inability or refusal to act, or in the event
of a vacancy in the office of the Chairman of the Board, the
President shall perform the duties of the Chairman of the Board,
and when so acting shall have all the powers of and be subject
to all the restrictions upon the Chairman of the Board. Unless
the Board of Directors otherwise provides, in the absence of the
Chief Executive Officer or in the event of his or her inability
or refusal to act, or in the event of a vacancy in the office of
the Chief Executive Officer, the President shall perform the
duties of the Chief Executive Officer, and when so acting shall
have all the powers of and be subject to all the restrictions
upon the Chief Executive Officer. The President shall have
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 or she shall deem necessary, to prescribe
their powers, duties and compensation, and to delegate authority
to them. He or she shall have authority to sign, execute and
acknowledge, on behalf of the corporation, all deeds, mortgages,
bonds, 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 or she may authorize any Vice President or
other officer or agent of the corporation to sign, execute and
acknowledge such documents or instruments in his or her place
and stead. In general he or she shall perform all duties
incident to the office of the President and such other duties as
may be prescribed by the Board of Directors from time to time.
4. Effective Aprill 11, 1997, Section 4.09 of the Company's By-laws was
renumbered Section 4.12, and a new Section 4.09 was added to read in
its entirety as follows:
4.09 Chief Operating Officer. The Chief Operating Officer
shall, subject to the direction of the Board of Directors and
the Chief Executive Officer, in general supervise and control
the day-to-day business operations of the corporation. He or
she shall have authority, subject to such rules as may be
prescribed by the Board of Directors, 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 or she may authorize any Vice President or
other officer or agent of the corporation to sign, execute and
acknowledge such documents or instruments in his or her place
and stead. In general he or she shall perform all duties
incident to the office of the Chief Operating Officer and such
other duties as may be prescribed by the Board of Directors from
time to time.
5. Effective April 11, 1997, Section 4.10 and 4.11 of the Company's By-
laws as in effect prior to the foregoing amendments were renumbered
Section 4.13 and 4.14. These Sections were not otherwise affected
by these amendments.
Exhibit 3.2
Amended Effective April 11, 1997
BYLAWS
OF
NORTHLAND CRANBERRIES, INC.
(a Wisconsin corporation)
<PAGE>
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 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 Wednesday in January of each year
(beginning in 1997), or on such other date within thirty days before or
after such 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 thereof, the Board of Directors shall cause the
election to be held at a special meeting of the shareholders as soon
thereafter as is practicable.
2.02. Special Meetings. Special meetings of the
shareholders, for any purpose or purposes, unless otherwise prescribed by
the Wisconsin Business Corporation Law, may be called by the Board of
Directors or the President. The corporation shall call a special meeting
of shareholders in the event that the holders of at least 10% of all of
the votes entitled to be cast on any issue proposed to be considered at
the proposed special meeting sign, date and deliver to the corporation one
or more written demands for a special meeting describing one or more
purposes for which it is to be held. The corporation shall give notice of
such a special meeting within thirty days after the date that the demand
is delivered to the corporation.
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 or special meeting of shareholders.
If no designation is made, the place of meeting shall be the principal
office of the corporation. Any meeting may be adjourned to reconvene at
any place designated by vote of a majority of the votes represented
thereat.
2.04. Notice of Meeting. Written notice stating the date,
time and place of any meeting of shareholders and, in case of a special
meeting, the purpose or purposes for which the meeting is called, shall be
delivered not less than ten days nor more than sixty days before the date
of the meeting (unless a different time is provided by the Wisconsin
Business Corporation Law or the articles of incorporation), either
personally or by mail, by or at the direction of the President or the
Secretary, to each shareholder of record entitled to vote at such meeting
and to such other persons as required by the Wisconsin Business
Corporation Law. If mailed, such notice shall be deemed to be effective
when deposited in the United States mall, addressed to the shareholder at
his or her address as it appears on the stock record books of the
corporation, with postage thereon prepaid. If an annual or special
meeting of shareholders is adjourned to a different date, time or place,
the corporation shall not be required to give notice of the new date, time
or place if the new date, time or place is announced at the meeting before
adjournment; provided, however, that if a new record date for an adjourned
meeting is or must be fixed, the corporation shall give notice of the
adjourned meeting to persons who are shareholders as of the new record
date.
2.045. Proper Business or Purposes of Shareholder Meetings.
To be properly brought before a meeting of shareholders, business must be
(a) specified in the notice of the meeting (or any supplement thereto)
given by or at the discretion of the Board of Directors or otherwise as
provided in Section 2.04 hereof; (b) otherwise properly brought before the
meeting by or at the direction of the Board of Directors; or (c) otherwise
properly brought before the meeting by a shareholder. For business to be
properly brought before a meeting by a shareholder, the shareholder must
have given written notification thereof, either by personal delivery or by
United States mall, postage prepaid, to the Secretary of the corporation,
and, in the case of an annual meeting, such notification must be given not
later than thirty (30) days in advance of the Originally Scheduled Date of
such meeting; provided, however, that if the Originally Scheduled Date of
such annual meeting is earlier than the date specified in these by laws as
the date of the annual meeting and if the Board of Directors does not
determine otherwise, or in the case of a special meeting of shareholders,
such written notice may be so given and received not later than the close
of business on the 15th day following the date of the first public
disclosure, which may include any public filing with the Securities and
Exchange Commission, of the Originally Scheduled Date of such meeting.
Any such notification shall set forth as to each matter the shareholder
proposes to bring before the meeting (i) a brief description of the
business desired to be brought before the meeting and the reasons for
conducting such business at the meeting and, in the event that such
business includes a proposal to amend either the articles of incorporation
or bylaws of the corporation, the exact language of the proposed
amendment; (ii) the name and address of the shareholder proposing such
business; (iii) a representation that the shareholder is a holder of
record of stock of the corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to propose such
business; and (iv) any material interest of the shareholder in such
business. No business shall be conducted at a meeting of shareholders
except in accordance with this Section 2.045, and the chairman of any
meeting of shareholders may refuse to permit any business to be brought
before such meeting without compliance with the foregoing procedures. For
purposes of these bylaws, the "Originally Scheduled Date" of any meeting
of shareholders shall be the date such meeting is scheduled to occur as
specified in the notice of such meeting first generally given to
shareholders regardless of whether any subsequent notice is given for such
meeting or the record date of such meeting is changed. Nothing contained
in this Section 2.045 shall be construed to limit the rights of a
shareholder to submit proposals to the corporation which comply with the
proxy rules of the Securities and Exchange Commission for inclusion in the
corporation's proxy statement for consideration at shareholder meetings.
2.05. Waiver of Notice. A shareholder may wave any notice
required by the Wisconsin Business Corporation Law, the articles of
incorporation or these bylaws before or after the date and time stated in
the notice. The waiver shall be in writing and signed by the shareholder
entitled to the notice, contain the same information that would have been
required in the notice under applicable provisions of the Wisconsin
Business Corporation Law (except that the time and place of meeting need
not be stated) and be delivered to the corporation for inclusion in the
corporate records. A shareholder's attendance at a meeting, in person or
by proxy, waives objection to all of the following: (a) lack of notice or
defective notice of the meeting, unless the shareholder at the beginning
of the meeting or promptly upon arrival objects to holding the meeting or
transacting business at the meeting; and (b) consideration of a particular
matter at the meeting that is not within the purpose described in the
meeting notice, unless the shareholder objects to considering the matter
when it is presented.
2.06. Fixing of Record Date. The Board of Directors may fix
in advance a date as the record date for the purpose of determining
shareholders entitled to notice of and to vote at any meeting of
shareholders, shareholders entitled to demand a special meeting as
contemplated by Section 2.02 hereof, shareholders entitled to take any
other action, or shareholders for any other purpose. Such record date
shall not be more than seventy days prior to the date on which the
particular action, requiring such determination of shareholders, is to be
taken. If no record date is fixed by the Board of Directors or by the
Wisconsin Business Corporation Law for the determination of shareholders
entitled to notice of and to vote at a meeting of shareholders, the record
date shall be the close of business on the day before the first notice is
given to shareholders. If no record date is fixed by the Board of
Directors or by the Wisconsin Business Corporation Law for the
determination of shareholders entitled to demand a special meeting as
contemplated in Section 2.02 hereof, the record date shall be the date
that the first shareholder signs the demand. Except as provided by the
Wisconsin Business Corporation Law for a court ordered adjournment, a
determination of shareholders entitled to notice of and to vote at a
meeting of shareholders is effective for any adjournment of such meeting
unless the Board of Directors fixes a new record date, which it shall do
if the meeting is adjourned to a date more than 120 days after the date
fixed for the original meeting. The record date for determining
shareholders entitled to a distribution (other than a distribution
involving a purchase, redemption or other acquisition of the corporation's
shares) or a share dividend is the date on which the Board of Directors
authorized the distribution or share dividend, as the case may be, unless
the Board of Directors fixes a different record date.
2.07. Shareholders' List for Meetings. After a record date
for a special or annual meeting of shareholders has been fixed, the
corporation shall prepare a list of the names of all of the shareholders
entitled to notice of the meeting. The list shall be arranged by class or
series of shares, if any, and show the address of and number of shares
held by each shareholder. Such list shall be available for inspection by
any shareholder, beginning two business days after notice of the meeting
is given for which the list was prepared and continuing to the date of the
meeting, at the corporation's principal office or at a place identified in
the meeting notice in the city where the meeting will be held. A
shareholder or his or her agent may, on written demand, inspect and,
subject to the limitations imposed by the Wisconsin Business Corporation
Law, copy the list, during regular business hours and at his or her
expense, during the period that it is available for inspection pursuant to
this Section 2.07. The corporation shall make the shareholders' list
available at the meeting and any shareholder or his or her agent or
attorney may inspect the list at any time during the meeting or any
adjournment thereof. Refusal or failure to prepare or make available the
shareholders' list shall not affect the validity of any action taken at a
meeting of shareholders.
2.08. Quorum and Voting Requirements. Shares entitled to
vote as a separate voting group may take action on a matter at a meeting
only if a quorum of those shares exists with respect to that matter.
Except as otherwise provided in the articles of incorporation or the
Wisconsin Business Corporation Law, a majority of the votes entitled to be
cast on the matter shall constitute a quorum of the voting group for
action on that matter. Once a share is represented for any purpose at a
meeting, other than for the purpose of objecting to holding the meeting or
transacting business at the meeting, it is considered present for purposes
of determining whether a quorum exists for the remainder of the meeting
and for any adjournment of that meeting unless a new record date is or
must be set for the adjourned meeting. If a quorum exists, except in the
case of the election of directors, action on a matter shall be approved if
the votes cast within the voting group favoring the action exceed the
votes cast opposing the action, unless the articles of incorporation or
the Wisconsin Business Corporation Law requires a greater number of
affirmative votes. Unless otherwise provided in the articles of
incorporation, each director shall be elected by a plurality of the votes
cast by the shares entitled to vote in the election of directors at a
meeting at which a quorum is present. Though less than a quorum of the
outstanding votes of a voting group are represented at a meeting, a
majority of the votes 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 notified.
2.09. Conduct of Meeting. The President, and in his absence or
discretion, a Vice President in the order provided under Section 4.07
hereof or as chosen by the President, 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 of the corporation shall act as secretary of all meetings of the
shareholders, but, in the absence or upon the request of the Secretary,
the presiding officer may appoint any other person to act as secretary of
the meeting.
2.10. Proxies. At all meetings of shareholders, a
shareholder may vote his or her shares in person or by proxy. A
shareholder may appoint a proxy to vote or otherwise act for the
shareholder by signing an appointment form, either personally or by his or
her attorney-in-fact. An appointment of a proxy is effective when
received by the Secretary or other officer or agent of the corporation
authorized to tabulate votes. An appointment is valid for eleven months
from the date of its signing unless a different period is expressly
provided in the appointment form.
2.11. Voting of Shares. Except as provided in the articles
of incorporation or in the Wisconsin Business Corporation Law, each
outstanding share of Class A Common Stock, is entitled to one vote on each
matter voted on at a meeting of shareholders and each outstanding share of
Class B Common Stock is entitled to three votes on each matter voted on at
a meeting of shareholders.
2.12. Action without Meeting. Any action required or
permitted by the articles of incorporation or these bylaws or any
provision of the Wisconsin Business Corporation Law to be taken at a
meeting of the shareholders may be taken without a meeting and without
action by the Board of Directors if a written consent or consents,
describing the action so taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof and delivered
to the corporation for inclusion in the corporate records.
2.13. Acceptance of Instruments Showing Shareholder Action.
If the name signed on a vote, consent, waiver or proxy appointment
corresponds to the name of a shareholder, the corporation, if acting in
good faith, may accept the vote, consent, waiver or proxy appointment and
give it effect as the act of a shareholder. If the name signed on a vote,
consent, waiver or proxy appointment does not correspond to the name of a
shareholder, the corporation, if acting in good faith, may accept the
vote, consent, waiver or proxy appointment and give it effect as the act
of the shareholder if any of the following apply:
(a) The shareholder is an entity and the name signed purports
to be that of a officer or agent of the entity.
(b) The name purports to be that of a personal representative,
administrator, executor, guardian or conservator representing the
shareholder and, if the corporation requests, evidence of fiduciary
status acceptable to the corporation is presented with respect to the
vote, consent, waver or proxy appointment.
(c) The name signed purports to be that of a receiver or
trustee in bankruptcy of the shareholder and, if the corporation
requests, evidence of this status acceptable to the corporation is
presented with respect to the vote, consent, waiver or proxy
appointment.
(d) The name signed purports to be that of a pledgee,
beneficial owner, or attorney-in-fact of the shareholder and, if the
corporation requests, evidence acceptable to the corporation of the
signatory's authority to sign for the shareholder is presented with
respect to the vote, consent, waiver or proxy appointment.
(e) Two or more persons are the shareholders as co-tenants or
fiduciaries and the name signed purports to be the name of at least
one of the co-owners and the person signing appears to be acting on
behalf of all co-owners.
The corporation may reject a vote, consent, waiver or proxy appointment if
the Secretary or other officer or agent of the corporation who is
authorized to tabulate votes, acting in good faith, has reasonable basis
for doubt about the validity of the signature on it or about the
signatory's authority to sign for the shareholder.
ARTICLE III. BOARD OF DIRECTORS
3.01. General Powers and Number. All corporate powers shall
be exercised by or under the authority of, and the business and affairs of
the corporation managed under the direction of, the Board of Directors.
The number of directors of the corporation shall be seven.
3.02. Tenor and Qualifications. Each director shall hold
office until the next annual meeting of shareholders and until his or her
successor shall have been elected and, if necessary, qualified, or until
there is a decrease in the number of directors which takes effect after
the expiration of his or her term, or until his or her prior death,
resignation or removal. A director may be removed by the shareholders
only at a meeting called for the purpose of removing the director, and the
meeting notice shall state that the purpose, or one of the purposes, of
the meeting is removal of the director. A director may be removed from
office with or without cause if the votes cast to remove the director
exceeds the number of votes cast not to remove such director. A director
may resign at any time by delivering written notice which complies with
the Wisconsin Business Corporation Law to the Board of Directors, to the
President (in his capacity as chairman of the Board of Directors) or to
the corporation. A director's resignation is effective when the notice is
delivered unless the notice specifies a later effective date. Directors
need not be residents of the State of Wisconsin or shareholders of the
corporation.
3.025. Shareholder Nomination Procedure. Nominations for the
election of directors may be made by the Board of Directors or a committee
appointed by the Board of Directors or by any shareholder entitled to vote
for the election of directors who complies fully with the requirements of
this Section 3.025. Any shareholder entitled to vote for the election of
directors at a meeting may nominate a person or persons for election as a
director or directors only if written notice of such shareholder's intent
to make any such nomination is given, either by personal delivery or by
United States mail, postage prepaid, to the Secretary of the corporation
not later than: (i) with respect to an election to be held at any annual
meeting of shareholders, 30 days in advance of the Originally Scheduled
Date of such meeting (provided, however, that if the Originally Scheduled
Date of such meeting is earlier than the date specified in these bylaws as
the date of the annual meeting and if the Board of Directors does not
determine otherwise, such written notice may be so given and received not
later than the close of business on the 15th day following the date of the
first public disclosure, which may include any public filing with the
Securities and Exchange Commission, of the Originally Scheduled Date of
such meeting); and (ii) with respect to an election to be held at a
special meeting of shareholders, the close of business on the 15th day
following the date of first public disclosure, which may include any
public filing with the Securities and Exchange Commission, of the
Originally Scheduled Date of such meeting. Each such notice shall set
forth: (a) the name and address of the shareholder who intends to make
the nomination and of the person or persons to be nominated; (b)a
representation that the shareholder is a holder of record of shares of the
corporation entitled to vote at such meeting and intends to appear in
person or by proxy at the meeting to nominate the person or persons
specified in the notice; (c) a description of all arrangements or
understandings between the shareholder 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 shareholder; (d) such
other information regarding each nominee proposed by such shareholder as
would have been required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission had
each nominee been nominated, or intended to be nominated, by the Board of
Directors; and (e) the consent of each nominee to serve as a director of
the corporation if so elected. The chairman of any meeting of shareholders
to elect directors and the Board of Directors may refuse to acknowledge
the nomination by a shareholder of any person not made in compliance with
the foregoing procedure.
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 communicated to the directors at or prior to such meeting
of shareholders. To the extent practicable, the date, time and place,
either within or without the State of Wisconsin, for the holding of
additional regular meetings of the Board of Directors shall be
communicated amongst and generally agreed upon at any meeting of the Board
of Directors.
3.04. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the President, Secretary
or any two directors. The President or Secretary 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, and if no other place is
fixed the place of the meeting shall be the principal business office of
the corporation in the State of Wisconsin.
3.05. Notice: Waiver. Notice of each special meeting of
the Board of Directors shall be given by written notice delivered or
communicated in person, by telegraph, teletype, facsimile or other form of
wire or wireless communication, or by mail or private carrier, to each
director at his business address or at such other address as such director
shall have designated in writing filed with the Secretary, in each case
not less than forty-eight hours prior to the meeting. The notice need not
prescribe the purpose of the special meeting of the Board of Directors or
the business to be transacted at such meeting. If mailed, such notice
shall be deemed to be effective when deposited in the United States mail
so addressed, with postage thereon prepaid. If notice is given by
telegram, such notice shall be deemed to be effective when the telegram is
delivered to the telegraph company. If notice is given by private
carrier, such notice shall be deemed to be effective when delivered to the
private carrier. Whenever any notice whatever is required to be given to
any director of the corporation under the articles of incorporation or
these bylaws or any provision of the Wisconsin Business Corporation Law, a
waiver thereof in writing, signed at any time, whether before or after the
date and time of meeting, by the director entitled to such notice shall be
deemed equivalent to the giving of such notice. The corporation shall
retain any such waiver as part of the permanent corporate records. A
director's attendance at or participation in a meeting waives any required
notice to him or her of the meeting unless the director at the beginning
of the meeting or promptly upon his or her arrival objects to holding the
meeting or transacting business at the meeting and does not thereafter
vote for or assent to action taken at the meeting.
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 specified in Section 3.01 of
these bylaws shall constitute a quorum for the transaction of business at
any meeting of the Board of Directors. Except as otherwise provided by
the Wisconsin Business Corporation Law or by the articles of incorporation
or by these bylaws, a quorum of any committee of the Board of Directors
created pursuant to Section 3.12 hereof shall consist of a majority of the
number of directors appointed to serve on the committee. A majority of
the directors present (though less than such quorum) may adjourn any
meeting of the Board of Directors or any committee thereof, as the case
may be, from time to time without further notice.
3.07. Manner of Acting. The affirmative vote of a majority
of the directors present at a meeting of the Board of Directors or a
committee thereof at which a quorum is present shall be the act of the
Board of Directors or such committee, as the case may be, unless the
Wisconsin Business Corporation Law, the articles of incorporation or these
bylaws require the vote of a greater number of directors.
3.08. Conduct of Meetings. The President, and in his
absence, a Vice President in the order provided under Section 4.07, 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 other person present to
act as secretary of the meeting. Minutes of any regular or special
meeting of the Board of Directors shall be prepared and distributed to
each director.
3.09. Vacancies. Except as provided below, any vacancy
occurring in the Board of Directors, including a vacancy resulting from an
increase in the number of directors, may be filled by any of the
following: (a) the shareholders; (b) the Board of Directors; or (c) if
the directors remaining in office constitute fewer than a quorum of the
Board of Directors, the directors, by the affirmative vote of a majority
of all directors remaining in office. If the vacant office was held by a
director elected by a voting group of shareholders, only the holders of
shares of that voting group may vote to fill the vacancy if it is filled
by the shareholders, and only the remaining directors elected by that
voting group may vote to fill the vacancy if it is filled by the
directors. A vacancy that will occur at a specific later date, because of
a resignation effective at a later date or otherwise, may be filled before
the vacancy occurs, but the new director may not take office until the
vacancy occurs.
3.10. Compensation. The Board of Directors, 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, or may delegate such authority to an
appropriate committee. The Board of Directors also shall have authority
to provide for or 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 and
is announced as present at a meeting of the Board of Directors or any
committee thereof created in accordance with Section 3.12 hereof, when
corporate action is taken, assents to the action taken unless any of the
following occurs: (a) the director objects at the beginning of the
meeting or promptly upon his or her arrival to holding the meeting or
transacting business at the meeting; (b) the director's dissent or
abstention from the action taken is entered in the minutes of the meeting;
or (c) the director delivers written notice that complies with the
Wisconsin Business Corporation Law of his or her dissent or abstention to
the presiding officer of the meeting before its adjournment or to the
corporation immediately after adjournment of the meeting. Such right of
dissent or abstention shall not apply to a director who votes in favor of
the action taken.
3.12. Committees. The Board of Directors by resolution
adopted by the affirmative vote of a majority of all of the directors then
in office may create one or more committees, appoint members of the Board
of Directors to serve on the committees and designate other members of the
Board of Directors to serve as alternates. Each committee shall have two
or more members who shall, unless otherwise provided by the Board of
Directors, serve at the discretion of the Board of Directors. A committee
may be authorized to exercise the authority of the Board of Directors,
except that a committee may not do any of the following: (a) authorize
distributions; (b)approve or propose to shareholders action that the
Wisconsin Business Corporation Law requires to be approved by
shareholders; (c) fill vacancies on the Board of Directors or, unless the
Board of Directors provides by resolution that vacancies on a committee
shall be filled by the affirmative vote of the remaining committee
members, on any Board committee; (d) amend the corporation's articles of
incorporation; (e) adopt, amend or repeal bylaws; (f) approve a plan of
merger not requiring shareholder approval; (g) authorize or approve
reacquisition of shares, except according to a formula or method
prescribed by the Board of Directors; and (h) authorize or approve the
issuance or sale or contract for sale of shares, or determine the
designation and relative rights, preferences and limitations of a class or
series of shares, except that the Board of Directors may authorize a
committee to do so within limits prescribed by the Board of Directors.
Unless otherwise provided by the Board of Directors in creating the
committee, a committee may employ counsel, accountants and other
consultants to assist it in the exercise of its authority.
3.13. Telephonic Meetings. Except as herein provided and
notwithstanding any place set forth in the notice of the meeting or these
bylaws, members of the Board of Directors (and any committees thereof
created pursuant to Section 3.12 hereof, may participate in regular or
special meetings by, or through the use of, any means of communication by
which all participants may simultaneously hear each other, such as by
conference telephone. If a meeting is conducted by such means, then at
the commencement of such meeting the presiding officer shall inform the
participating directors that a meeting is taking place at which official
business may be transacted. Any participant in a meeting by such means
shall be deemed present in person at such meeting. If action is to be
taken at any meeting held by such means on any of the following: (a) a
plan of merger or share exchange; (b) a sale, lease, exchange or other
disposition of substantial property or assets of the corporation; (c) a
voluntary dissolution or the revocation of voluntary dissolution
proceedings; or (d) a filing for bankruptcy, then the identity of each
director participating in such meeting must be verified by the disclosure
at such meeting by each such director of each such director's social
security number to the secretary of the meeting before a vote may be taken
on any of the foregoing matters. For purposes of the preceding clause
(b), the phrase "sale, lease, exchange or other disposition of substantial
property or assets" shall mean any sale, lease, exchange or other
disposition of property or assets of the corporation having a net book
value equal to 10% or more of the net book value of the total assets of
the corporation on and as of the close of the fiscal year last ended prior
to the date of such meeting and as to which financial statements of the
corporation have been prepared. Notwithstanding the foregoing, no action
may be taken at any meeting held by such means on any particular matter
which the presiding officer determines, in his or her sole discretion, to
be inappropriate under the circumstances for action at a meeting held by
such means. Such determination shall be made and announced in advance of
such meeting.
3.14. Action without Meeting. Any action required or
permitted by the Wisconsin Business Corporation Law to be taken at a
meeting of the Board of Directors or a committee thereof crated pursuant
to Section 3.12 hereof may be taken without a meeting if the action is
taken by all members of the Board or of the committee. The action shall
be evidenced by one or more written consents describing the action taken,
signed by each director or committee member and retained by the
corporation. Such action shall be effective when the last director or
committee member signs the consent, unless the consent specifies a
different effective date.
ARTICLE IV. OFFICERS
4.01. Number. The principal officers of the corporation
shall be a President, the number of Vice Presidents as authorized from
time to time by the Board of Directors, a Secretary, and a Treasurer, each
of whom shall be elected by the Board of Directors. Such other officers
and assistant officers as may be deemed necessary may be elected or
appointed by the Board of Directors or the President. The Board of
Directors may also authorize any duly authorized officer to appoint one or
more officers or assistant officers. Any two or more offices may be held
by the same person.
4.02. Election and Term of Office. The officers of the
corporation 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 is practicable. Each officer shall
hold office until his or her successor shall have been duly elected or
until his or her prior death, resignation or removal.
4.03. Removal. The Board of Directors may remove any
officer and, unless restricted by the Board of Directors or these bylaws,
an officer may remove any officer or assistant officer appointed by that
officer, at any time, with or without cause and notwithstanding the
contract rights, if any, of the officer removed. The appointment of an
officer does not of itself create contract rights.
4.04. Resignation. An officer may resign at any time by
delivering notice to the corporation that complies with the Wisconsin
Business Corporation Law. The resignation shall be effective when the
notice is delivered, unless the notice specifies a later effective date
and the corporation accepts the later effective date.
4.05. 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.
If a resignation of an officer is effective at a later date as
contemplated by Section 4.04 hereof, the Board of Directors may fill the
pending vacancy before the effective date if the Board provides that the
successor may not take office until the effective date.
4.06 Chairman of the Board. The Chairman of the Board, if one
be chosen by the Board of Directors, shall preside at all meetings of the
Board of Directors and of the shareholders and shall perform all duties
incident to the office of the Chairman of the Board of the corporation and
such other duties as may be prescribed by the Board of Directors from time
to time.
4.07 Chief Executive Officer. The Board of Directors shall from
time to time designate the Chairman of the Board, if any, or the President
of the corporation as the Chief Executive Officer of the corporation. The
President shall be the Chief Executive Officer whenever the office of
Chairman of the Board of the corporation is vacant. Subject to the
control of the Board of Directors, the Chief Executive Officer shall in
general supervise and control all of the business and affairs of the
corporation. He or she shall have authority, subject to such rules as may
be prescribed by the Board of Directors, to appoint and remove such agents
and employees of the corporation as he or she shall deem necessary to
prescribe their powers, duties and compensation, and to delegate authority
to them. He or she shall have authority to sign, execute and acknowledge,
on behalf of the corporation, all deeds, mortgages, securities, contracts,
leases, reports, and all other documents or other 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 or she
may authorize any elected President, Vice President or other officer or
agent of the corporation to sign, execute and acknowledge such documents
or instruments in his or her place and stead. In general, he or she shall
perform all duties incident to the office of Chief Executive Officer of
the corporation and such other duties as may be prescribed by the Board of
Directors from time to time.
4.08 President. Unless the Board of Directors otherwise
provides, in the absence of the Chairman of the Board or in the event of
his or her inability or refusal to act, or in the event of a vacancy in
the office of the Chairman of the Board, the President shall perform the
duties of the Chairman of the Board, and when so acting shall have all the
powers of and be subject to all the restrictions upon the Chairman of the
Board. Unless the Board of Directors otherwise provides, in the absence
of the Chief Executive Officer or in the event of his or her inability or
refusal to act, or in the event of a vacancy in the office of the Chief
Executive Officer, the President shall perform the duties of the Chief
Executive Officer, and when so acting shall have all the powers of and be
subject to all the restrictions upon the Chief Executive Officer. The
President shall have 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 or she shall deem necessary, to prescribe their powers,
duties and compensation, and to delegate authority to them. He or she
shall have authority to sign, execute and acknowledge, on behalf of the
corporation, all deeds, mortgages, bonds, 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 or she may authorize any Vice President or other officer or
agent of the corporation to sign, execute and acknowledge such documents
or instruments in his or her place and stead. In general he or she shall
perform all duties incident to the office of the President and such other
duties as may be prescribed by the Board of Directors from time to time.
4.09 Chief Operating Officer. The Chief Operating Officer shall,
subject to the direction of the Board of Directors and the Chief Executive
Officer, in general supervise and control the day-to-day business
operations of the corporation. He or she shall have authority, subject to
such rules as may be prescribed by the Board of Directors, 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 or she may authorize any Vice
President or other officer or agent of the corporation to sign, execute
and acknowledge such documents or instruments in his or her place and
stead. In general he or she shall perform all duties incident to the
office of the Chief Operating Officer and such other duties as may be
prescribed by the Board of Directors from time to time.
4.10. The Vice Presidents. In the absence of the president
or in the event of the President's death, inability or refusal to act, or
in the event for any reason it shall be impracticable for the President to
act personally, the Executive Vice President (or in the event of his
absence or inability to act, any Vice President in the order designated by
the Board of Directors or President, 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 or her 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 or her authority to act in the stead of the
President.
4.11. The Secretary. The Secretary shall: (a) keep minutes
of the meetings of the shareholders and of the Board of Directors (and of
committees thereof) in one or more books provided for that purpose
(including records of actions taken by the shareholders or the Board of
Directors (or committees thereof) without a meeting); (b) see that all
notices are duly given in accordance with the provisions of these bylaws
or as required by the Wisconsin Business Corporation Law; (c) be custodian
of the corporate records and of the seal of the corporation, if any, and
see that the seal of the corporation, if any, is affixed to all documents
the execution of which on behalf of the corporation under its seal is
required and duly authorized; (d) maintain a record of the shareholders of
the corporation, in a form that permits preparation of a list of the names
and addresses of all shareholders, by class or series of shares and
showing the number and class or series of shares held by each shareholder;
(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
by the President or by the Board of Directors.
4.12. The Treasurer. The Treasurer shall: (a) have charge
and custody of and be responsible for all funds and securities of the
corporation; (b) maintain appropriate accounting records; (c) 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 (d) 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 by the President or by the Board of
Directors. If required by the Board of Directors, the Treasurer shall
give a bond for the faithful discharge of his or her duties in such sum
and with such surety or sureties as the Board of Directors shall
determine.
4.13. Assistant Secretaries and Assistant Treasurers. There
shall be such number of Assistant Secretaries and Assistant Treasurers as
the Board of Directors or President may 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 Treasurers shall respectively, if required by the Board of
Directors, give bonds for the faithful discharge of their duties in such
sums and with such sureties as the Board of Directors shall determine.
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.
4.14. Other Assistants and Acting Officers. The Board of
Directors and President shall have the power to appoint, or to authorize
any duly appointed officer of the corporation to appoint, any person to
act as assistant to any officer, or as agent for the corporation in his or
her 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 an authorized officer shall have the power to perform all the
duties of the office to which he or she is so appointed to be an
assistant, or as to which he or she is so appointed to act, except as such
power may be otherwise defined or restricted by the Board of Directors,
the President or the appointing officer.
ARTICLE V. CONTRACTS, LOANS, CHECKS
AND DEPOSITS; SPECIAL CORPORATE ACTS
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. 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, if
any, 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. The President, or any officer designated by
the President, shall have the power to contract on behalf of the
corporation, and issue evidences of indebtedness, for indebtedness for
borrowed money not exceeding Five Hundred Thousand Dollars ($500,000)
without further authorization or approval of the Board of Directors. No
indebtedness for borrowed money over such amount 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.
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 or
officers, agent 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 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, if any, 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; TRANSFER OF SHARES
6.01. Certificates for Shares. Certificates representing
shares of the corporation shall be in such form, consistent with the
Wisconsin Business Corporation 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
canceled and no new certificate shall be issued until the former
certificate for a like number of shares shall have been surrendered and
canceled, except as provided in Section 6.06.
6.02. Facsimile Signatures and Seal. The seal of the
corporation, if any, on any certificates for shares may be a facsimile.
The signature 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. The validity of a share
certificate is not affected if a person who signed the certificate (either
manually or in facsimile) no longer holds office when the certificate is
issued.
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 such endorsements are genuine and effective and 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 certificates for shares have 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; (b) files with the
corporation a sufficient indemnity bond if required by the Board of
Directors or any principal officer; 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 Board of Directors may
authorize shares to be issued for consideration consisting of any tangible
or intangible property or benefit to the corporation, including cash,
promissory notes, services performed, contracts for services to be
performed or other securities of the corporation. Before the corporation
issues shares, the Board of Directors shall determine that the
consideration received or to be received for the shares to be issued is
adequate. The determination of the Board of Directors is conclusive
insofar as the adequacy of consideration for the issuance of shares
relates to whether the shares are validly issued, fully paid and
nonassessable. The corporation may place in escrow shares issued in whole
or in part for a contract for future services or benefits, a promissory
note, or otherwise for property to be issued in the future, or make other
arrangements to restrict the transfer of the shares, and may credit
distributions in respect of the shares against their purchase price, until
the services are performed, the benefits or property are received or the
promissory note is paid. If the services are not performed, the benefits
or property are not received or the promissory note is not paid, the
corporation may cancel, in whole or in part, the shares escrowed or
restricted and the distributions credited.
6.08. Stock Regulations. The Board of Directors shall have
the power and authority to make all such further rules and regulations not
inconsistent with law as it may deem expedient concerning the issue,
transfer and registration of shares of the corporation.
ARTICLE VII. SEAL
7.01. The corporation shall have no corporate seal unless
otherwise determined by the Board of Directors.
ARTICLE VIII. INDEMNIFICATION
8.01. Certain Definitions. All capitalized terms used in
this Article VIII and not otherwise hereinafter defined in this Section
8.01 shall have the meaning set forth in Section 180.0850 of the Statute.
The following capitalized terms (including any plural forms thereof) used
in this Article VIII shall be defined as follows:
(a) "Affiliate" shall include, without limitation, any
corporation, partnership, joint venture, employee benefit plan, trust or
other enterprise that directly or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control
with, the Corporation.
(b) "Authority" shall mean the entity selected by the Director
or Officer to determine his or her right to indemnification pursuant to
Section 8.04.
(c) "Board" 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
breached or failed to perform his or her duties to the Corporation and his
or her breach of or failure to perform those duties is determined, in
accordance with Section 8.04, to constitute misconduct under Section
180.0851(2) (a) 1, 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 this Corporation, including,
without limitation, any successor corporation or entity to this
Corporation by way of merger, consolidation or acquisition of all or
substantially all of the capital stock or assets of this Corporation.
(f) "Director or Officer" shall have the meaning set forth in
the Statute; provided, that, for purposes of this Article VIII, 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.
(g) "Disinterested Quorum" shall mean a quorum of the Board who
are not Parties to the subject Proceeding or any related Proceeding.
(h) "Party" shall have the meaning set forth in the Statute;
provided, that, for purposes of this Article VIII, the term "Party" shall
also include any Director or Officer or employee of the Corporation who is
or was a witness in a Proceeding at a time when he or she has not
otherwise been formally named a Party thereto.
(i) "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 VIII, the term "Ping" shall also
include all Proceedings (i) brought under (in whole or in part) the
Securities Act of 1933, as amended, the Securities Exchange Act of 1934,
as amended, 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 is
a plaintiff or petitioner because he or she is a Director or Officer;
provided, however, that any such Proceeding under this subsection (iv)
must be authorized by a majority vote of a Disinterested Quorum.
(j) "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.
8.02. Mandatory Indemnification of Directors and Officers.
To the fullest extent permitted or required by the Statute, the
Corporation shall indemnify a Director or Officer against all Liabilities
incurred by or on behalf of such Director or Officer in connection with a
Proceeding in which the Director or Officer is a Party because he or she
is a Director or Officer.
8.03. Procedural Requirements.
(a) A Director or Officer who seeks indemnification under
Section 8.02 shall make a written request therefor to the Corporation.
Subject to Section 8.03(b), within sixty days of the Corporation's receipt
of such request, the Corporation shall pay or reimburse the Director or
Officer for the entire amount of Liabilities incurred by the Director or
Officer in connection with the subject Proceeding (net of any Expenses
previously advanced pursuant to Section 8.05).
(b) No indemnification shall be required to be paid by the
Corporation pursuant to Section 8.02 if, within such sixty-day period, (i)
a Disinterested Quorum, by a majority vote thereof, determines that the
Director or Officer 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 Section 8.03(b),
the Board shall immediately authorize by resolution that an Authority, as
provided in Section 8.04, determine whether the Director's or Officer's
conduct constituted a Breach of Duty and, therefore, whether
indemnification should be denied hereunder.
(d) (i) If the Board does not authorize an Authority to
determine the Director's or Officer'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 did not engage in
misconduct constituting a Breach of Duty and, in the case of subsection
(i) above (but not subsection (ii)), indemnification by the Corporation of
the requested amount of Liabilities shall be paid to the Director or
Officer immediately.
8.04. Determination of Indemnification.
(a) If the Board authorizes an Authority to determine a
Director's or Officer's right to indemnification pursuant to Section 8.03,
then the Director or Officer 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
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;
(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, 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, and the third arbitrator shall be selected by the
two previously selected arbitrators, and (B) in all other
respects (other than this Article VIII), 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 Director's or Officer's
conduct 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.
(d) If the Authority determines that indemnification is
required hereunder, the Corporation shall pay the entire requested amount
of Liabilities (net of any Expenses previously advanced pursuant to
Section 8.05), 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 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 engaged in a Breach of
Duty.
(f) All Expenses incurred in the determination process under
this Section 8.04 by either the Corporation or the Director or Officer,
including, without limitation, all Expenses of the selected Authority,
shall be paid by the Corporation.
8.05. 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 written request therefor, the reasonable Expenses of the
Director or Officer as such Expenses are incurred; provided, the following
conditions are satisfied:
(i) The Director or Officer furnishes to the Corporation
an executed written certificate affirming his or her good faith
belief that he or she has not engaged in misconduct which
constitutes a Breach of Duty; and
(ii) The Director or Officer furnishes to the Corporation
an unsecured executed written agreement to repay any advances
made under this Section 8.05 if it is ultimately determined by
an Authority that he or she is not entitled to be indemnified by
the Corporation for such Expenses pursuant to Section 8.04.
(b) If the Director or Officer must repay any previously
advanced Expenses pursuant to this Section 8.05, such Director or Officer
shall not be required to pay interest on such amounts.
8.06 Indemnification and Allowance of Expenses of Certain
Others.
(a) The Board may, in its sole and absolute discretion a 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) 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 or she was a Director or Officer, if such director
or officer is a Party thereto because he or she is or was a director or
officer of the Affiliate.
(b) The Corporation shall indemnify an employee who is not a
Director or Officer, to the extent he or she ha been successful on the
merits or otherwise in defense of a Proceeding, for all Expenses incurred
in the Proceeding if the employee was a Party because he or she was an
employee of the Corporation.
(c) The Board 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 Section 8.06(b) hereof, 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 or her duties as such and who is not otherwise a
Director or Officer.
8.07. Insurance. The Corporation may purchase and maintain
insurance on behalf of a Director or Officer 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 or her
capacity as such or arising from his or her status as such, regardless of
whether the Corporation is required or permitted to indemnify against any
such Liability under this Article VIII.
8.08. Notice to the Corporation. A Director, Officer or
employee shall promptly notify the Corporation in writing when he or she
has actual knowledge of a Proceeding which 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, Officer or employee hereunder unless the
Corporation shall have been irreparably prejudiced by such failure (as
determined, in the case of Directors or Officers only, by an Authority
selected pursuant to Section 8.04(a)).
8.09. Severability. If any provision of this Article VIII
shall be deemed invalid or inoperative, or if a court of competent
jurisdiction determines that any of the provisions of this Article VIII
contravene public policy, this Article VIII shall be construed so that the
remaining provisions shall not be affected, but shall remain in full force
and effect, and any such provisions which are invalid or inoperative or
which 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 n to render the same valid and
enforceable; it being understood that it is the Corporation's intention to
provide the Directors and Officers with the broadest possible protection
against personal liability allowable under the Statute.
8.10. Nonexclusivity of Article VIII. The rights of a
Director, Officer or employee (or any other person) granted under this
Article VIII shall not be deemed exclusive of any other rights to
indemnification against Liabilities or allowance of Expenses which the
Director, Officer or employee (or such other person) may be entitled to
under any written agreement, Board resolution, vote of shareholders of the
Corporation or otherwise, including, without limitation, under the
Statute. Nothing contained in this Article VIII shall be deemed to limit
the Corporation's obligations to indemnify against Liabilities or allow
Expenses to a Director, Officer or employee under the Statute.
8.11. Contractual Nature of Article VIII; Repeal or
Limitation of Rights. This Article VIII shall be deemed to be a contract
between the Corporation and each Director, Officer and employee of the
Corporation and any repeal or other limitation of this Article VIII 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 VIII with regard to acts, omissions or events arising
prior to such repeal or limitation.
ARTICLE IX. CONFLICTS OF INTEREST
9.01. Conflict of Interest Policy. No director, officer or
other employee of the corporation shall acquire a cranberry producing
property or a controlling interest in any entity which owns or operates
such a property without first offering the opportunity to purchase such
property or controlling interest to the corporation. This prohibition is
not applicable to such properties or interests owned by any director,
officer or employee of the corporation prior to the date of incorporation
of this corporation. This Section 9.01 may only be amended or deleted
pursuant to a vote of the corporation's shareholders.
ARTICLE X. AMENDMENTS
10.01. By Shareholders. These bylaws may be amended or
repealed and new bylaws may be adopted by the shareholders at any annual
or special meeting of the shareholders at which a quorum is in attendance.
10.02. By Directors. Except as otherwise provided by the
Wisconsin Business Corporation Law or the articles of incorporation, these
bylaws may also be amended or repealed and new bylaws may be adopted by
the Board of Directors; provided, however, that the shareholders in
adopting, amending or g a particular bylaw may provide therein that the
Board of Directors may not amend, repeal or readopt that bylaw.
10.03. Implied Amendments. Any action taken or authorized by
the shareholders or by the Board of Directors which would be inconsistent
with the bylaws then in effect but which is taken or authorized by native
vote of not less than the number of votes 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.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE CONDENSED
CONSOLIDATED FINANCIAL STATEMENTS OF NORTHLAND CRANBERRIES, INC. AS OF AND FOR
THE 9 MONTHS ENDED MAY 31, 1997 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> AUG-31-1996
<PERIOD-START> SEP-01-1996
<PERIOD-END> MAY-31-1997
<CASH> 186
<SECURITIES> 1,260
<RECEIVABLES> 8,635
<ALLOWANCES> 0
<INVENTORY> 21,787
<CURRENT-ASSETS> 34,452
<PP&E> 159,959
<DEPRECIATION> 22,189
<TOTAL-ASSETS> 176,129
<CURRENT-LIABILITIES> 10,160
<BONDS> 79,669
0
0
<COMMON> 138
<OTHER-SE> 67,788
<TOTAL-LIABILITY-AND-EQUITY> 176,129
<SALES> 34,496
<TOTAL-REVENUES> 34,810
<CGS> 16,233
<TOTAL-COSTS> 10,010
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 3,156
<INCOME-PRETAX> 5,411
<INCOME-TAX> 2,157
<INCOME-CONTINUING> 3,254
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3,254
<EPS-PRIMARY> 0.23
<EPS-DILUTED> 0.23
</TABLE>
