SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
(X) Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For Quarterly Period Ended March 31, 1996
or
( ) Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from _________________________
to _________________________
Commission File Number 0-17873
GIDDINGS & LEWIS, INC.
(Exact name of registrant as specified in its charter)
Wisconsin 39-1643189
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
142 Doty Street, Fond du Lac, Wisconsin 54935
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (414) 921-9400
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
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
Common Stock Outstanding as of March 31, 1996: 34,583,373 shares
<PAGE>
GIDDINGS & LEWIS, INC.
Form 10-Q Index
For Quarter Ended March 31, 1996
Page
PART I. Financial Information
Item 1. Condensed Consolidated Statements of Income 3
Condensed Consolidated Statements of Cash Flows 4
Condensed Consolidated Balance Sheets 5
Condensed Consolidated Statement of Changes in
Shareholders' Equity 6
Notes to Condensed Consolidated Financial
Statements 7 - 9
Item 2. Management's Discussion and Analysis of
Results of Operations and Financial
Condition 10 - 11
PART II. Other Information
Item 6. Exhibits and Reports on Form 8-K 12
Signatures 13
Exhibit Index 14
<PAGE>
GIDDINGS & LEWIS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(In Thousands Except Share and Per Share Data)
(Unaudited)
Three months ended
March 31, April 2,
1996 1995
Net sales $192,420 $154,576
Costs and expenses:
Cost of sales 149,725 122,862
Selling, general and
administrative expenses 20,404 15,583
Depreciation and amortization 5,480 4,182
------- -------
Total operating expenses 175,609 142,627
------- -------
Operating income 16,811 11,949
Interest expense, net 2,254 290
Other income (108) (31)
------- -------
Income before provision for income taxes 14,665 11,690
Provision for income taxes 4,248 4,594
------- -------
Net income $ 10,417 $ 7,096
======== ========
Per common share amounts:
Net income $ .30 $ .21
======== ========
Dividends declared $ .03 $ .03
======== ========
Average number of common shares outstanding 34,526,964 34,363,937
See accompanying notes.
<PAGE>
GIDDINGS & LEWIS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In Thousands)
(Unaudited)
Three months ended
March 31, April 2,
1996 1995
Operating activities:
Net income $ 10,417 $ 7,096
Adjustments to reconcile net income
to net cash provided (used) by
operating activities:
Depreciation and amortization 5,480 4,182
Net changes in working capital items
(18,784) (57,452)
Other 3,488 (1,119)
------- -------
Net cash provided (used) by
operating activities 601 (47,293)
------- -------
Investing activities:
Additions to property, plant,
and equipment (5,564) (3,357)
Other 164 933
------- -------
Net cash used by investing activities (5,400) (2,424)
------- -------
Financing activities:
Proceeds from draws on line of credit 45,467 55,000
Repayments under line of credit (47,000) (19,000)
Cash dividends (1,038) (1,032)
------- -------
Net cash (used) provided by
financing activities (2,571) 34,968
------- -------
Effect of exchange rate changes
on cash 245 872
------- -------
Net decrease in cash and cash equivalents
(7,125) (13,877)
Cash and cash equivalents - beginning
of period 14,216 24,072
------- -------
Cash and cash equivalents - end
of period $ 7,091 $ 10,195
======== ========
See accompanying notes.
<PAGE>
GIDDINGS & LEWIS, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(In Thousands)
(Unaudited)
March 31, December 31,
1996 1995
ASSETS
Current assets:
Cash and cash equivalents $ 7,091 $ 14,216
Accounts receivable 353,370 350,593
Inventories 105,562 102,281
Deferred income taxes 4,776 4,776
Other current assets 5,619 5,921
------- -------
Total current assets 476,418 477,787
Fixed assets - net 113,099 111,382
Costs in excess of net acquired assets 189,802 192,522
Deferred income taxes 19,700 19,700
Other assets 15,189 16,200
------- -------
TOTAL ASSETS $814,208 $817,591
======== ========
LIABILITIES & SHAREHOLDERS' EQUITY
Current liabilities:
Notes payable $ 35,230 $ 36,763
Accounts payable 55,546 67,676
Accrued expenses and other liabilities 78,314 77,888
------- -------
Total current liabilities 169,090 182,327
Long-term debt 100,000 100,000
Long-term employee benefits and other
long-term liabilities 43,610 42,723
------- -------
Total liabilities 312,700 325,050
Contingencies
Shareholders' equity:
Class A preferred stock - -
Common stock 3,458 3,442
Capital in excess of par 329,107 326,608
Retained earnings 170,162 160,783
Cumulative translation adjustment 3,390 4,223
Unamortized compensation expense (4,609) (2,515)
------- -------
Total shareholders' equity 501,508 492,541
------- -------
TOTAL LIABILITIES AND
SHAREHOLDERS' EQUITY $814,208 $817,591
======== ========
See accompanying notes.
<PAGE>
<TABLE>
GIDDINGS & LEWIS, INC.
CONDENSED CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY
Three Months Ended March 31, 1996
(In Thousands, Except Share Amounts)
(Unaudited)
Capital in Cumulative Unamortized Total
Common Stock Excess of Retained Translation Compensation Shareholders'
Shares Amount Par Earnings Adjustment Expense Equity
<S> <C> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1995 34,422,043 $ 3,442 $ 326,608 $160,783 $ 4,223 $ (2,515) $ 492,541
Net stock awards and options 161,330 16 2,403 (2,508) (89)
Tax benefit related to
vesting of restricted stock 96 96
Net income 10,417 10,417
Amortization of compensation
expense 414 414
Cash dividends (1,038) (1,038)
Translation adjustment (833) (833)
---------- ------- --------- -------- ------- -------- ---------
Balance, March 31, 1996 34,583,373 $ 3,458 $ 329,107 $170,162 $ 3,390 $ (4,609) $ 501,508
========== ======= ========= ======== ======= ======== =========
</TABLE>
See accompanying notes.
<PAGE>
GIDDINGS & LEWIS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
March 31, 1996
(Unaudited)
1. Basis of Presentation
The accompanying unaudited condensed consolidated financial statements
have been prepared in accordance with generally accepted accounting
principles for interim financial information and with the instructions
to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not
include all of the information and footnotes required by generally
accepted accounting principles for complete financial statements. In
the opinion of management, all adjustments (consisting of normal
recurring accruals) considered necessary for a fair presentation have
been included. Due to the nature of a substantial portion of the
Company's business (i.e., long-term and complex contracts), significant
adjustments are sometimes required to reflect experience and other
factors. Such adjustments are recorded as changes in estimates as part
of the percentage-of-completion accounting in the period they become
known. Operating results for the three month period ended March
31, 1996 are not necessarily indicative of the results that may be
expected for the year ending December 31, 1996. For further informa-
tion, refer to the consolidated financial statements and footnotes
thereto included in the Company's Annual Report on Form 10-K for the
year ended December 31, 1995.
The Company is organized into four major operating groups: Automation
Technology, Integrated Automation, Automation Measurement and Control,
and European Operations. The Automation Technology Group is responsible
for the manufacture of cellular and smart manufacturing systems,
automated standalone machine tools and machining centers, tooling,
fixtures, castings and remanufacturing. The Integrated Automation Group
produces flexible transfer lines, flexible machining systems and
assembly automation systems. Programmable industrial computers, servo
systems, controls, and measurement products are offered by the
Automation Measurement and Control Group. The European Operations Group
offers most of the Company's product lines through its sales,
engineering, manufacturing, and service facilities in England and
Germany.
2. Inventories
March 31, December 31,
1996 1995
(in thousands)
Raw materials $ 52,072 $ 52,694
Work-in-process 41,063 38,038
Finished goods 12,427 11,549
---------- ----------
$ 105,562 $ 102,281
========== ==========
3. Contingencies
The Company is involved in various environmental matters, including
matters in which the Company and certain of its subsidiaries or alleged
predecessors have been named as potentially responsible parties under
the Comprehensive Environmental Response Compensation and Liability Act
(CERCLA). These matters include a soil and water contamination matter
at the Company's former West Allis, Wisconsin facility. In 1992, the
Company was notified by the Wisconsin Department of Natural Resources
(WDNR) of contamination at the West Allis site. In 1994, the Company
sold most of the site, including the manufacturing facility. The
Company has made substantial progress on the implementation of a WDNR
approved clean-up plan on the nine acre portion of the site that was not
sold.
The Company has established accruals ($9.7 million and $10.0 million at
March 31, 1996 and December 31, 1995, respectively) for all
environmental contingencies of which management is currently aware in
accordance with generally accepted accounting principles. In
establishing these accruals, management considered (a) reports of
environmental consultants retained by the Company, (b) the costs
incurred to date by the Company at sites where clean-up is presently
ongoing and the estimated costs to complete the necessary remediation
work remaining at such sites, (c) the financial solvency, where
appropriate, of other parties that have been responsible for effecting
remediation at specified sites, and (d) the experience of other parties
who have been involved in the remediation of comparable sites. The
accruals recorded by the Company with respect to environmental matters
have not been reduced by potential insurance or other recoveries and are
not discounted. Although the Company has and will continue to pursue
such claims against insurance carriers and other responsible parties,
future potential recoveries remain uncertain and, therefore, were not
recorded as a reduction to the estimated gross environmental
liabilities. Based on the foregoing and given current information,
management believes that future costs in excess of the amounts accrued
on all presently known and quantifiable environmental contingencies will
not be material to the Company's financial position or results of
operations.
In another matter, a Michigan Department of Natural Resources (now known
as the Michigan Department of Environmental Quality) investigation into
alleged environmental violations at the Company's Menominee, Michigan
facility resulted in the issuance of criminal complaints against the
Company and two of its employees in November 1994. The complaints,
which are pending in Menominee County, Michigan district and circuit
courts, generally focus on alleged releases of hazardous substances and
the alleged illegal treatment and disposal of hazardous wastes. In
these actions, the State of Michigan is seeking, among other relief,
monetary sanctions as specified by applicable law. Two civil lawsuits
are also pending which seek unspecified damages based on allegations of
improper disposal and emissions at this facility. The Company is
vigorously defending itself against all charges and allegations.
Information presently available to the Company does not enable it to
reasonably quantify potential civil or criminal penalties, or
remediation costs, if any, related to these matters.
The Company is also involved in other litigation and proceedings,
including product liability claims. In the case of product liability,
the Company is partially self-insured and has accrued for all claim
exposure for which a loss is probable and reasonably estimable. Based
on current information, management believes that future costs in excess
of the amounts accrued for all existing litigation will not be material
to the Company's financial position or results of operations.
GIDDINGS & LEWIS, INC.
Management's Discussion and Analysis of Results of Operations
and Financial Condition
Results of Operations for the First Three Months
of 1996 Compared to 1995
The following table sets forth the Company's bookings by operating group
in the period and consolidated backlog at period-end on a quarterly basis
for the period January 1, 1995 through March 31, 1996.
April 2, July 2, Oct. 1, Dec. 31, March 31,
1995 1995 1995 1995 1996
(In Thousands)
Operating group:
Automation
Technology $ 41,523 $ 76,765 $ 83,534 $ 75,782 $ 85,581
Integrated
Automation 91,420 64,884 39,091 (17,956) 35,365
European
Operations 8,680 27,459 24,470 79,699 35,848
Automation
Measurement
and Control 17,741 19,364 14,698 16,436 15,615
-------- -------- -------- -------- --------
Consolidated
bookings $159,364 $188,472 $161,793 $153,961 $172,409
======== ======== ======== ======== ========
Consolidated
backlog $430,121 $478,324 $442,507 $388,156 $365,953
======== ======== ======== ======== ========
Bookings in the first three months of 1996 were $172.4 million compared to
bookings in the first three months of 1995 of $159.4 million. Automation
Technology first quarter bookings for 1996 of $85.6 million increased
106.1% from $41.5 million in the first quarter of 1995 primarily as a
result of the acquisition of Fadal Engineering, Inc. ("Fadal") in April,
1995. Integrated Automation bookings of $35.4 million decreased 61.3% in
the first quarter of 1996 from $91.4 million in the first quarter of 1995
due to the timing of order placement of large contracts. European
Operations bookings increased 313.0% from $8.7 million in the first
quarter of 1995 to $35.8 million in the first quarter of 1996. Orders from
European automobile manufacturers were the primary cause of the increase
in 1996. Automation Measurement and Control bookings of $15.6 million for
the first quarter of 1996 decreased 12.0% from $17.8 million in the first
quarter of 1995. Lower demand for measurement equipment was the biggest
contributor to the lower orders in 1996.
Consolidated net sales in the first three months of 1996 totalled $192.4
million compared to $154.6 million in the year earlier period. The
increase in net sales was related to the additional Fadal sales. In the
1996 period, net sales for Automation Technology of $95.8 million
increased 153.8% from $37.8 million in the year earlier period.
Integrated Automation net sales of $55.2 million decreased 25.4% from
$73.9 million. European Operations sales in the first three months of
1996 were $23.7 million, a decrease of 5% from $25.0 million in the year
earlier period. Automation Measurement and Control net sales of $17.7
million in the 1996 period compared to $17.9 million in the 1995 period.
The consolidated gross margin (before depreciation and amortization)
increased to 22.2% of sales in the first quarter of 1996, from 20.5% in
the first quarter of 1995. The increase in the gross margin percentage is
primarily attributable to the inclusion of the higher margin sales of
Fadal.
Selling, general, and administrative expenses (before depreciation and
amortization) increased as a percentage of sales to 10.5% in the first
three months of 1996 from 10.1% in the year earlier period primarily as a
result of increased commissions.
Net interest expense increased from $.3 million in the first quarter of
1995 to $2.3 million in the first quarter of 1996. The increase in net
interest expense is attributable to increased borrowings resulting from
the acquisition of Fadal.
The provision for income taxes of $4.2 million for the first quarter of
1996 is based on the estimated annual effective tax rate of 38% for 1996
which includes the one time tax benefit in the first quarter of initially
implementing tax planning strategies to capture the benefit of foreign
losses. The Company's effective tax rate for the first three months of
1996 amounted to 29% as compared to 39.3% for the year earlier period.
Liquidity and Capital Resources at March 31, 1996
On March 31, 1996, the Company had $7.1 million of cash and cash
equivalents on hand which was a decrease of $7.1 million from the balance
on hand at the beginning of the year. For the first three months of 1996,
operating activities provided $.6 million of cash. Cash used by working
capital changes totaled $18.8 million due primarily to decreased accounts
payable.
Investing activities used $5.4 million which included $5.6 million in
capital expenditures and $.2 million of proceeds from the sale of assets.
Financing activities used cash of $2.6 million which included net payments
on bank borrowings of $1.6 million plus dividend payments of $1.0 million.
The Company believes its cash flows from operations and funds available
under domestic and foreign credit agreements will be adequate to finance
capital expenditures and working capital requirements for the foreseeable
future.
Part II - OTHER INFORMATION
Giddings & Lewis, Inc.
Form 10-Q
March 31, 1996
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
3.1 Amendment to Giddings & Lewis, Inc. By-Laws
effective April 24, 1996
3.2 Giddings & Lewis, Inc. By-Laws as amended
effective April 24, 1996
27 Financial Data Schedule (EDGAR version only)
(b) Reports on Form 8-K
The Company filed no Current Reports on Form 8-K during
the quarter ended March 31, 1996.
<PAGE>
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Giddings & Lewis, Inc.
Date: May 10, 1996 /s/ Joseph R. Coppola
Joseph R. Coppola
Chairman and Chief Executive
Officer
Date: May 10, 1996 /s/ Richard C. Kleinfeldt
Richard C. Kleinfeldt
Vice-President - Finance and
Secretary (Chief Financial and
Accounting Officer)
<PAGE>
EXHIBIT INDEX
Exhibit No. Exhibit Description
3.1 Amendment to Giddings & Lewis, Inc. By-Laws effective
April 24, 1996
3.2 Giddings & Lewis, Inc. By-Laws as amended effective
April 24, 1996
27 Financial Data Schedule (EDGAR version only)
AMENDMENT TO GIDDINGS & LEWIS, INC. BY-LAWS
Section 3.01.(b) of Article III of the By-laws of Giddings &
Lewis, Inc. was amended to read as follows:
The number of directors of the corporation shall
be eight (8), divided into three (3) classes of two
(2), three (3) and three (3) directors, respectively.
At each Annual Meeting the successors to the class of
directors whose term shall expire at the time of such
Annual Meeting shall be elected to hold office until
the third succeeding Annual Meeting, and until such
directors' successors are duly elected and, if
necessary, qualified or until there is a decrease in
the number of directors that takes effect after the
expiration of such directors' term.
4/24/96
BY-LAWS
OF
GIDDINGS & LEWIS, INC.
(a Wisconsin corporation)
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 (the "Annual Meeting") shall be held at 11:00 A.M. (local
time) on the last Wednesday in the month of April of each year, or at such
other time and date as may be fixed by resolution of the Board of
Directors. In fixing a meeting date for any Annual Meeting, the Board of
Directors may consider such factors as it deems relevant within the good
faith exercise of its business judgment.
2.02. Purposes of Annual Meeting. At each Annual Meeting,
the shareholders shall elect that number of directors equal to the number
of directors in the class whose term expires at the time of such meeting.
At any such Annual Meeting, only other business properly brought before
the meeting in accordance with Section 2.15 of these by-laws may be
transacted. If the election of directors shall not be held on the date
designated herein, or fixed as herein provided, for any Annual Meeting, or
any adjournment thereof, the Board of Directors shall cause the election
to be held at a special meeting of shareholders (a "Special Meeting") as
soon thereafter as is practicable.
2.03. Special Meetings.
(a) A Special Meeting may be called only by (i) the Chairman of
the Board, (ii) the President, (iii) the Secretary or (iv) the Board of
Directors and shall be called by the Chairman of the Board or the
President upon the demand, in accordance with this Section 2.03, of the
holders of record of shares representing at least 10% of all the votes
entitled to be cast on any issue proposed to be considered at the Special
Meeting.
(b) In order that the corporation may determine the
shareholders entitled to demand a Special Meeting, the Board of Directors
may fix a record date to determine the shareholders entitled to make such
a demand (the "Demand Record Date"). The Demand Record Date shall not
precede the date upon which the resolution fixing the Demand Record Date
is adopted by the Board of Directors and shall not be more than 10 days
after the date upon which the resolution fixing the Demand Record Date is
adopted by the Board of Directors. Any shareholder of record seeking to
have shareholders demand a Special Meeting shall, by sending written
notice to the Secretary of the corporation by hand or by certified or
registered mail, return receipt requested, request the Board of Directors
to fix a Demand Record Date. The Board of Directors shall promptly, but
in all events within 10 days after the date on which a valid request to
fix a Demand Record Date is received, adopt a resolution fixing the Demand
Record Date and shall make a public announcement of such Demand Record
Date. If no Demand Record Date has been fixed by the Board of Directors
within 10 days after the date on which such request is received by the
Secretary, the Demand Record Date shall be the 10th day after the first
date on which a valid written request to set a Demand Record Date is
received by the Secretary. To be valid, such written request shall set
forth the purpose or purposes for which the Special Meeting is to be held,
shall be signed by one or more shareholders of record (or their duly
authorized proxies or other representatives), shall bear the date of
signature of each such shareholder (or proxy or other representative) and
shall set forth all information about each such shareholder and about the
beneficial owner or owners, if any, on whose behalf the request is made
that would be required to be set forth in a shareholder's notice described
in paragraph (a) (ii) of Section 2.15 of these by-laws.
(c) In order for a shareholder or shareholders to demand a
Special Meeting, a written demand or demands for a Special Meeting by the
holders of record as of the Demand Record Date of shares representing at
least 10% of all the votes entitled to be cast on any issue proposed to be
considered at the Special Meeting must be delivered to the corporation.
To be valid, each written demand by a shareholder for a Special Meeting
shall set forth the specific purpose or purposes for which the Special
Meeting is to be held (which purpose or purposes shall be limited to the
purpose or purposes set forth in the written request to set a Demand
Record Date received by the corporation pursuant to paragraph (b) of this
Section 2.03), shall be signed by one or more persons who as of the Demand
Record Date are shareholders of record (or their duly authorized proxies
or other representatives), shall bear the date of signature of each such
shareholder (or proxy or other representative), and shall set forth the
name and address, as they appear in the corporation's books, of each
shareholder signing such demand and the class and number of shares of the
corporation which are owned of record and beneficially by each such
shareholder, shall be sent to the Secretary by hand or by certified or
registered mail, return receipt requested, and shall be received by the
Secretary within 70 days after the Demand Record Date.
(d) The corporation shall not be required to call a Special
Meeting upon shareholder demand unless, in addition to the documents
required by paragraph (c) of this Section 2.03, the Secretary receives a
written agreement signed by each Soliciting Shareholder (as defined
below), pursuant to which each Soliciting Shareholder, jointly and
severally, agrees to pay the corporation's costs of holding the Special
Meeting, including the costs of preparing and mailing proxy materials for
the corporation's own solicitation, provided that if each of the
resolutions introduced by any Soliciting Shareholder at such meeting is
adopted, and each of the individuals nominated by or on behalf of any
Soliciting Shareholder for election as a director at such meeting is
elected, then the Soliciting Shareholders shall not be required to pay
such costs. For purposes of this paragraph (d), the following terms shall
have the meanings set forth below:
(i) "Affiliate" of any Person (as defined herein) shall
mean any Person controlling, controlled by or under common control
with such first Person.
(ii) "Participant" shall have the meaning assigned to such
term in Rule 14a-11 promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act").
(iii) "Person" shall mean any individual, firm, corporation,
partnership, joint venture, association, trust, unincorporated
organization or other entity.
(iv) "Proxy" shall have the meaning assigned to such term
in Rule 14a-1 promulgated under the Exchange Act.
(v) "Solicitation" shall have the meaning assigned to such
term in Rule 14a-11 promulgated under the Exchange Act.
(vi) "Soliciting Shareholder" shall mean, with respect to
any Special Meeting demanded by a shareholder or shareholders, any of
the following Persons:
(A) if the number of shareholders signing the demand
or demands of meeting delivered to the corporation pursuant
to paragraph (c) of this Section 2.03 is 10 or fewer, each
shareholder signing any such demand;
(B) if the number of shareholders signing the demand
or demands of meeting delivered to the corporation pursuant
to paragraph (c) of this Section 2.03 is more than 10, each
Person who either (I) was a Participant in any Solicitation
of such demand or demands or (II) at the time of the
delivery to the corporation of the documents described in
paragraph (c) of this Section 2.03 had engaged or intended
to engage in any Solicitation of Proxies for use at such
Special Meeting (other than a Solicitation of Proxies on
behalf of the corporation); or
(C) any Affiliate of a Soliciting Shareholder, if a
majority of the directors then in office determine,
reasonably and in good faith, that such Affiliate should be
required to sign the written notice described in paragraph
(c) of this Section 2.03 and/or the written agreement
described in this paragraph (d) in order to prevent the
purposes of this Section 2.03 from being evaded.
(e) Except as provided in the following sentence, any Special
Meeting shall be held at such hour and day as may be designated by
whichever of the Chairman of the Board, the President, the Secretary or
the Board of Directors shall have called such meeting. In the case of any
Special Meeting called by the Chairman of the Board or the President upon
the demand of shareholders (a "Demand Special Meeting"), such meeting
shall be held at such hour and day as may be designated by the Board of
Directors; provided, however, that the date of any Demand Special Meeting
shall be not more than 70 days after the Meeting Record Date (as defined
in Section 2.06 hereof); and provided further that in the event that the
directors then in office fail to designate an hour and date for a Demand
Special Meeting within 10 days after the date that valid written demands
for such meeting by the holders of record as of the Demand Record Date of
shares representing at least 10% of all the votes entitled to be cast on
each issue proposed to be considered at the Special Meeting are delivered
to the corporation (the "Delivery Date"), then such meeting shall be held
at 2:00 P.M. local time on the 100th day after the Delivery Date or, if
such 100th day is not a Business Day (as defined below), on the first
preceding Business Day. In fixing a meeting date for any Special Meeting,
the Chairman of the Board, the President, the Secretary or the Board of
Directors may consider such factors as he or it deems relevant within the
good faith exercise of his or its business judgment, including, without
limitation, the nature of the action proposed to be taken, the facts and
circumstances surrounding any demand for such meeting, and any plan of the
Board of Directors to call an Annual Meeting or a Special Meeting for the
conduct of related business.
(f) The corporation may engage regionally or nationally
recognized independent inspectors of elections to act as an agent of the
corporation for the purpose of promptly performing a ministerial review of
the validity of any purported written demand or demands for a Special
Meeting received by the Secretary. For the purpose of permitting the
inspectors to perform such review, no purported demand shall be deemed to
have been delivered to the corporation until the earlier of (i) 5 Business
Days following receipt by the Secretary of such purported demand and (ii)
such date as the independent inspectors certify to the corporation that
the valid demands received by the Secretary represent at least 10% of all
the votes entitled to be cast on each issue proposed to be considered at
the Special Meeting. Nothing contained in this paragraph (f) shall in any
way be construed to suggest or imply that the Board of Directors or any
shareholder shall not be entitled to contest the validity of any demand,
whether during or after such 5 Business Day period, or to take any other
action (including, without limitation, the commencement, prosecution or
defense of any litigation with respect thereto).
(g) For purposes of these by-laws, "Business Day" shall mean
any day other than a Saturday, a Sunday or a day on which banking
institutions in the State of Wisconsin are authorized or obligated by law
or executive order to close.
2.04. Place of Meeting. The Board of Directors, the
Chairman of the Board, the President or the Secretary may designate any
place, either within or without the State of Wisconsin, as the place of
meeting for any Annual Meeting or for any Special Meeting, or for any
postponement thereof. If no designation is made, the place of meeting
shall be the principal office of the corporation in the State of
Wisconsin. Any meeting may be adjourned to reconvene at any place
designated by vote of the Board of Directors or by the Chairman of the
Board, the President or the Secretary.
2.05. Notice of Meeting. Written or printed notice stating
the place, day and hour of any Annual Meeting or Special Meeting shall be
delivered not less than 10 days (unless a longer period is required by the
Wisconsin Business Corporation Law) nor more than 70 days before the date
of such meeting, either personally or by mail, by or at the direction of
the Secretary to each shareholder of record entitled to vote at such
meeting and to other shareholders as may be required by the Wisconsin
Business Corporation Law. In the event of any Demand Special Meeting,
such notice of meeting shall be sent not more than 30 days after the
Delivery Date. If mailed, notice pursuant to this Section 2.05 shall be
deemed to be effective when deposited in the United States mail, addressed
to the shareholder at his address as it appears on the stock transfer
books of the corporation, with postage thereon prepaid. Unless otherwise
required by the Wisconsin Business Corporation Law or the articles of
incorporation of the corporation, a notice of an Annual Meeting need not
include a description of the purpose for which the meeting is called. In
the case of any Special Meeting, (a) the notice of meeting shall describe
any business that the Board of Directors shall have theretofore determined
to bring before the meeting and (b) in the case of a Demand Special
Meeting, the notice of meeting (i) shall describe any business set forth
in the statement of purpose of the demands received by the corporation in
accordance with Section 2.03 of these by-laws and (ii) shall contain all
of the information required in the notice received by the corporation in
accordance with Section 2.15(b) of these by-laws. If an Annual Meeting or
Special Meeting 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 Meeting 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
Meeting Record Date.
2.06. Fixing of Record Date. The Board of Directors may fix
in advance a date not less than 10 days and not more than 70 days prior to
the date of any Annual Meeting or Special Meeting as the record date for
the determination of shareholders entitled to notice of, or to vote at,
such meeting (the "Meeting Record Date"). In the case of any Demand
Special Meeting, (i) the Meeting Record Date shall be not later than the
30th day after the Delivery Date and (ii) if the Board of Directors fails
to fix the Meeting Record Date within 30 days after the Delivery Date,
then the close of business on such 30th day shall be the Meeting Record
Date. The shareholders of record on the Meeting Record Date shall be the
shareholders entitled to notice of and to vote at the meeting. Except as
provided by the Wisconsin Business Corporation Law for a court-ordered
adjournment, a determination of shareholders entitled to notice of and to
vote at any Annual Meeting or Special Meeting is effective for any
adjournment of such meeting unless the Board of Directors fixes a new
Meeting Record Date, which it shall do if the meeting is adjourned to a
date more than 120 days after the date fixed for the original meeting.
The Board of Directors may also fix in advance a date as the record date
for the purpose of determining shareholders entitled to take any other
action or determining shareholders for any other purpose. Such record
date shall be not more than 70 days prior to the date on which the
particular action, requiring such determination of shareholders, is to be
taken. 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 authorizes the distribution or
share dividend, as the case may be, unless the Board of Directors fixes a
different record date.
2.07. Voting Records. After a Meeting Record Date 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 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 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
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; Postponements; Adjournments.
(a) Shares entitled to vote as a separate voting group may take
action on a matter at any Annual Meeting or Special Meeting only if a
quorum of those shares exists with respect to that matter. If the
corporation has only one class of stock outstanding, such class shall
constitute a separate voting group for purposes of this Section 2.08.
Except as otherwise provided in the articles of incorporation of the
corporation 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 any Annual Meeting or Special 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 Meeting 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 of the corporation or the
Wisconsin Business Corporation Law requires a greater number of
affirmative votes. Unless otherwise provided in the articles of
incorporation of the corporation, each director to be elected shall be
elected by a plurality of the votes cast by the shares entitled to vote in
the election of directors at any Annual Meeting or Special Meeting at
which a quorum is present.
(b) The Board of Directors acting by resolution may postpone
and reschedule any previously scheduled Annual Meeting or Special Meeting;
provided, however, that a Demand Special Meeting shall not be postponed
beyond the 100th day following the Delivery Date. Any Annual Meeting or
Special Meeting may be adjourned from time to time, whether or not there
is a quorum, (i) at any time, upon a resolution of shareholders if the
votes cast in favor of such resolution by the holders of shares of each
voting group entitled to vote on any matter theretofore properly brought
before the meeting exceed the number of votes cast against such resolution
by the holders of shares of each such voting group or (ii) at any time
prior to the transaction of any business at such meeting, by the Chairman
of the Board or the President or pursuant to a resolution of the Board of
Directors. No notice of the time and place of adjourned meetings need be
given except as required by the Wisconsin Business Corporation Law. At
any 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 Chairman of the Board, and in
his absence, the President, and in his absence, a Vice President in the
order provided under Section 4.07, and in their absence, any person chosen
by the shareholders present shall call any Annual Meeting or Special
Meeting to order and shall act as chairman of such meeting, and the
Secretary of the corporation shall act as secretary of all Annual Meetings
and Special Meetings, but, in the absence of the Secretary, the presiding
officer may appoint any other person to act as secretary of the meeting.
2.10. Proxies. At any Annual Meeting or Special Meeting, a
shareholder entitled to vote may vote 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
attorney-in-fact. An appointment of 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 11 months from the date of
its signing unless a different period is expressly provided in the
appointment form. Unless otherwise provided, a proxy may be revoked at
any time before it is voted, either by written notice filed with the
Secretary or the acting secretary of the meeting or by oral notice given
by the shareholder to the presiding officer during the meeting. The
presence of a shareholder who has filed his appointment of proxy shall not
of itself constitute a revocation. The Board of Directors shall have the
power and authority to make rules establishing presumptions as to the
validity and sufficiency of proxies.
2.11. Voting of Shares. (a) Each outstanding share shall be
entitled to one vote upon each matter submitted to a vote at an Annual
Meeting or Special Meeting, except to the extent that the voting rights of
the shares of any class or classes are enlarged, limited or denied by the
Wisconsin Business Corporation Law or the articles of incorporation of the
corporation.
(b) Shares held by another corporation, if a sufficient number
of shares entitled to elect a majority of the directors of such other
corporation is held directly or indirectly by this corporation, shall not
be entitled to vote at any Annual Meeting or Special Meeting, but shares
held in a fiduciary capacity may be voted.
2.12. Acceptance of Instruments Showing Shareholder Action.
If the name signed on a vote, consent, waiver or proxy appointment
corresponds to the name of a shareholder, the corporation, if acting in
good faith, may accept the vote, consent, waiver or proxy appointment and
give it effect as the act of a shareholder. If the name signed on a vote,
consent, waiver or proxy appointment does not correspond to the name of a
shareholder, the corporation may accept the vote, consent, waiver or proxy
appointment and give it effect as the act of the shareholder if any of the
following apply:
(a) The shareholder is an entity and the name signed purports
to be that of an officer or agent of the entity.
(b) The name purports to be that of a personal representative,
administrator, executor, guardian or conservator representing the
shareholder and, if the corporation requests, evidence of fiduciary status
acceptable to the corporation is presented with respect to the vote,
consent, waiver or proxy appointment.
(c) The name signed purports to be that of a receiver or
trustee in bankruptcy of the shareholder and, if the corporation requests,
evidence of this status acceptable to the corporation is presented with
respect to the vote, consent, waiver or proxy appointment.
(d) The name signed purports to be that of a pledgee,
beneficial owner, or attorney-in-fact of the shareholder and, if the
corporation requests, evidence acceptable to the corporation of the
signatory's authority to sign for the shareholder is presented with
respect to the vote, consent, waiver or proxy appointment.
(e) Two or more persons are the shareholder 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.
2.13. Waiver of Notice by Shareholders. A shareholder may
waive any notice required by the Wisconsin Business Corporation Law, the
articles of incorporation of the corporation or these by-laws 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 any Annual Meeting or Special 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.
2.14. Unanimous Consent without Meeting. Any action
required or permitted by the articles of incorporation of the corporation
or these by-laws or any provision of the Wisconsin Business Corporation
Law to be taken at an Annual Meeting or Special Meeting may be taken
without a meeting if a consent in writing, setting forth the action so
taken, shall be signed by all of the shareholders entitled to vote with
respect to the subject matter thereof.
2.15. Notice of Shareholder Business and Nomination of
Directors.
(a) Annual Meetings.
(i) Nominations of persons for election to the Board of
Directors of the corporation and the proposal of business to be
considered by the shareholders may be made at an Annual Meeting (A)
pursuant to the corporation's notice of meeting, (B) by or at the
direction of the Board of Directors or (C) by any shareholder of the
corporation who is a shareholder of record at the time of giving of
notice provided for in this by-law and who is entitled to vote at the
meeting and complies with the notice procedures set forth in this
Section 2.15.
(ii) For nominations or other business to be properly
brought before an Annual Meeting by a shareholder pursuant to clause
(C) of paragraph (a)(i) of this Section 2.15, the shareholder must
have given timely notice thereof in writing to the Secretary of the
corporation. To be timely, a shareholder's notice shall be received
by the Secretary of the corporation at the principal offices of the
corporation not less than 60 days nor more than 90 days prior to the
last Wednesday in the month of April; provided, however, that in the
event that the date of the Annual Meeting is advanced by more than 30
days or delayed by more than 60 days from the last Wednesday in the
month of April, notice by the shareholder to be timely must be so
received not earlier than the 90th day prior to the date of such
Annual Meeting and not later than the close of business on the later
of (x) the 60th day prior to such Annual Meeting and (y) the 10th day
following the day on which public announcement of the date of such
meeting is first made. Such shareholder's notice shall be signed by
the shareholder of record who intends to make the nomination or
introduce the other business (or his duly authorized proxy or other
representative), shall bear the date of signature of such shareholder
(or proxy or other representative) and shall set forth: (A) the name
and address, as they appear on this corporation's books, of such
shareholder and the beneficial owner or owners, if any, on whose
behalf the nomination or proposal is made; (B) the class and number
of shares of the corporation which are beneficially owned by such
shareholder or beneficial owner or owners; (C) a representation that
such 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 make the nomination or introduce the other
business specified in the notice; (D) in the case of any proposed
nomination for election or re-election as a director, (I) the name
and residence address of the person or persons to be nominated, (II)
a description of all arrangements or understandings between such
shareholder or beneficial owner or owners and each nominee and any
other person or persons (naming such person or persons) pursuant to
which the nomination is to be made by such shareholder, (III) such
other information regarding each nominee proposed by such shareholder
as would be required to be disclosed in solicitations of proxies for
elections of directors, or would be otherwise required to be
disclosed, in each case pursuant to Regulation 14A under the Exchange
Act, including any information that would be required to be included
in a proxy statement filed pursuant to Regulation 14A had the nominee
been nominated by the Board of Directors and (IV) the written consent
of each nominee to be named in a proxy statement and to serve as a
director of the corporation if so elected; and (E) in the case of any
other business that such shareholder proposes to bring before the
meeting, (I) a brief description of the business desired to be
brought before the meeting and, if such business includes a proposal
to amend these by-laws, the language of the proposed amendment, (II)
such shareholder's and beneficial owner's or owners' reasons for
conducting such business at the meeting and (III) any material
interest in such business of such shareholder and beneficial owner or
owners.
(iii) Notwithstanding anything in the second sentence of
paragraph (a)(ii) of this Section 2.15 to the contrary, in the event
that the number of directors to be elected to the Board of Directors
of the corporation is increased and there is no public announcement
naming all of the nominees for director or specifying the size of the
increased Board of Directors made by the corporation at least 70 days
prior to the last Wednesday in the month of April, a shareholder's
notice required by this Section 2.15 shall also be considered timely,
but only with respect to nominees for any new positions created by
such increase, if it shall be received by the Secretary at the
principal offices of the corporation not later than the close of
business on the 10th day following the day on which such public
announcement is first made by the corporation.
(b) Special Meetings. Only such business shall be conducted at
a Special Meeting as shall have been described in the notice of meeting
sent to shareholders pursuant to Section 2.05 of these by-laws.
Nominations of persons for election to the Board of Directors may be made
at a Special Meeting at which directors are to be elected pursuant to such
notice of meeting (i) by or at the direction of the Board of Directors or
(ii) by any shareholder of the corporation who (A) is a shareholder of
record at the time of giving of such notice of meeting, (B) is entitled to
vote at the meeting and (C) complies with the notice procedures set forth
in this Section 2.15. Any shareholder desiring to nominate persons for
election to the Board of Directors at such a Special Meeting shall cause a
written notice to be received by the Secretary of the corporation at the
principal offices of the corporation not earlier than 90 days prior to
such Special Meeting and not later than the close of business on the later
of (x) the 60th day prior to such Special Meeting and (y) the 10th day
following the day on which public announcement is first made of the date
of such Special Meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. Such written notice shall be
signed by the shareholder of record who intends to make the nomination (or
his duly authorized proxy or other representative), shall bear the date of
signature of such shareholder (or proxy or other representative) and shall
set forth: (A) the name and address, as they appear on the corporation's
books, of such shareholder and the beneficial owner or owners, if any, on
whose behalf the nomination is made; (B) the class and number of shares of
the corporation which are beneficially owned by such shareholder or
beneficial owner or owners; (C) a representation that such 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 make
the nomination specified in the notice; (D) the name and residence address
of the person or persons to be nominated; (E) a description of all
arrangements or understandings between such shareholder or beneficial
owner or owners and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination is to be made by
such shareholder; (F) such other information regarding each nominee
proposed by such shareholder as would be required to be disclosed in
solicitations of proxies for elections of directors, or would be otherwise
required to be disclosed, in each case pursuant to Regulation 14A under
the Exchange Act, including any information that would be required to be
included in a proxy statement filed pursuant to Regulation 14A had the
nominee been nominated by the Board of Directors; and (G) the written
consent of each nominee to be named in a proxy statement and to serve as a
director of the corporation if so elected.
(c) General.
(i) Only persons who are nominated in accordance with the
procedures set forth in this Section 2.15 shall be eligible to serve
as directors. Only such business shall be conducted at an Annual
Meeting or Special Meeting as shall have been brought before such
meeting in accordance with the procedures set forth in this Section
2.15. The chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought
before the meeting was made in accordance with the procedures set
forth in this Section 2.15 and, if any proposed nomination or
business is not in compliance with this Section 2.15, to declare that
such defective proposal shall be disregarded.
(ii) For purposes of this Section 2.15, "public
announcement" shall mean disclosure in a press release reported by
the Dow Jones News Service, Associated Press or comparable national
news service or in a document publicly filed by the corporation with
the Securities and Exchange Commission pursuant to Section 13, 14 or
15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this
Section 2.15, a shareholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section
2.15. Nothing in this Section 2.15 shall be deemed to limit the
corporation's obligation to include shareholder proposals in its
proxy statement if such inclusion is required by Rule 14a-8 under the
Exchange Act.
ARTICLE III. BOARD OF DIRECTORS
3.01. General Powers; Number and Tenure. (a) All corporate
powers shall be exercised by or under the authority of, and the business
and affairs of the corporation shall be managed under the direction of,
its Board of Directors.
(b) The number of directors of the corporation shall be eight
(8), divided into three (3) classes of two (2), three (3) and three (3)
directors, respectively. At each Annual Meeting the successors to the
class of directors whose term shall expire at the time of such Annual
Meeting shall be elected to hold office until the third succeeding Annual
Meeting, and until such directors' successors are duly elected and, if
necessary, qualified or until there is a decrease in the number of
directors that takes effect after the expiration of such directors' term.
3.02. Resignations and Qualifications. A director may resign at
any time by delivering written notice which complies with the Wisconsin
Business Corporation Law to the Chairman of the Board 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.
3.03. Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this by-law immediately
after the Annual Meeting, and each adjourned session thereof. The place
of such regular meeting shall be the same as the place of the Annual
Meeting which precedes it, or such other suitable place as may be
announced at such Annual Meeting. The Board of Directors may provide, by
resolution, the time and place, either within or without the State of
Wisconsin, for the holding of additional regular meetings without other
notice than such resolution.
3.04. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the Chairman of the Board,
the President, the Secretary or any two directors. The Chairman of the
Board, the President or the 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 office of the corporation in
the State of Wisconsin.
3.05. Notice; Waiver. Notice of each meeting of the Board
of Directors (unless otherwise provided in or pursuant to Section 3.03)
shall be given by written notice delivered or communicated in person, by
telegram, facsimile or other form of wire or wireless communication, or by
mail or private carrier to each director at his business address or such
other address as a director shall have designated in writing and filed
with the Secretary, in each case not less than 48 hours prior to the time
of the 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 be 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 the notice is 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 of the
corporation or these by-laws or any provision of the Wisconsin Business
Corporation Law, a waiver thereof in writing, signed at any time, whether
before or after the 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 of the meeting unless the
director at the beginning of the meeting or promptly upon his 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.
Neither the business to be transacted at, nor the purpose of, any regular
or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
3.06. Quorum. Except as otherwise provided by the Wisconsin
Business Corporation Law or by the articles of incorporation of the
corporation or these by-laws, a majority of the directors set forth in
Section 3.01 shall constitute a quorum for the transaction of business at
any meeting of the Board of Directors, but a majority of the directors
present (though less than such quorum) may adjourn the meeting from time
to time without further notice.
3.07. Manner of Acting. The act of the majority of the
directors present at a meeting at which a quorum is present shall be the
act of the Board of Directors, unless the act of a greater number is
required by the Wisconsin Business Corporation Law or by the articles of
incorporation of the corporation or these by-laws.
3.08. Conduct of Meetings. The Chairman of the Board, and
in his absence, 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 Assistant Secretary or any director or other
person present to act as secretary of the meeting. Minutes of any regular
or special meetings of the Board of Directors shall be prepared and
distributed to each director.
3.09. 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.
3.10. Presumption of Assent. A director of the corporation
who is present at a meeting of the Board of Directors or a committee
thereof of which he is a member at which action on any corporate matter is
taken shall be presumed to have assented to the action taken unless any of
the following occurs: (a) the director objects at the beginning of the
meeting or promptly upon his 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 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 to dissent or abstain shall not
apply to a director who voted in favor of such action.
3.11. Committees. The Board of Directors by resolution
adopted by the affirmative vote of a majority of the number of directors
set forth in Section 3.01 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. Alternate
members of a committee shall take the place of any absent member or
members at any meeting of such committee upon request of the Chairman of
the Board or the President or upon request of the chairman of such
meeting. Each committee shall have two or more members who shall, unless
otherwise provided by the Board of Directors, serve at the pleasure 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
articles of incorporation of the corporation; (e) adopt, amend or repeal
by-laws; (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.
3.12. Telephonic Meetings. Except as herein provided and
notwithstanding any place set forth in the notice of the meeting or these
by-laws, members of the Board of Directors (and any committee thereof) 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 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.
3.13. Unanimous Consent without Meeting. Any action
required or permitted by the articles of incorporation of the corporation
or these by-laws or any provision of the Wisconsin Business Corporation
Law to be taken by the Board of Directors (or any committee thereof) at a
meeting may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all members of the Board of
Directors or of the committee, as the case may be, then in office. 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 Chairman of the Board, a President, any number of Vice
Presidents, 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.
The Board of Directors may also authorize any duly appointed 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. If the election of officers
shall not be held at such meeting, such election shall be held as soon
thereafter as conveniently may be. Each officer shall hold office until
his successor shall have been duly elected or until his prior death,
resignation or removal.
4.03. Removal. The Board of Directors may remove any
officer and, unless restricted by the Board of Directors or these by-laws,
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. Election or appointment
shall not of itself create contract rights.
4.04. Resignations and Vacancies. 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. 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 this Section 4.04, 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.
4.05. Chairman of the Board. The Chairman of the Board
shall be elected from the membership of the Board of Directors. The
Chairman of the Board shall preside at all Annual Meetings and Special
Meetings and at all meetings of the Board of Directors. The Chairman of
the Board shall be the principal executive officer of the corporation and,
subject to the control of the Board of Directors, shall in general
supervise and control all of the business and affairs of the corporation.
He shall have authority, subject to such rules as may be prescribed by the
Board of Directors, to appoint such agents and employees of the
corporation as he shall deem necessary, to prescribe their powers, duties
and compensation, and to delegate authority to them. Such agents and
employees shall hold office at the discretion of the Chairman of the
Board. He shall have authority to sign, execute and acknowledge, on
behalf of the corporation, all deeds, mortgages, bonds, stock
certificates, contracts, leases, reports and all other documents or
instruments necessary or proper to be executed in the course of the
corporation's regular business, or which shall be authorized by resolution
of the Board of Directors; and, except as otherwise provided by law or the
Board of Directors, he may authorize any officer or agent of the
corporation to sign, execute and acknowledge such documents or instruments
in his place and stead.
4.06. President. The President shall be the chief operating
officer of the Company. In general he shall perform all duties incident
to the office of chief operating officer and such other duties as may be
prescribed by the Board of Directors from time to time. Except where by
law the signature of the Chairman of the Board of the corporation is
required, the President shall possess the same power and authority as the
Chairman of the Board 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 and shall have such
additional power to sign, execute and acknowledge, on behalf of the
corporation, as may be authorized by resolution of the Board of Directors.
During the absence or disability of the Chairman of the Board, or while
that office is vacant, the President shall exercise the powers and
discharge the duties of the Chairman of the Board as the principal
executive officer of the Company.
4.07. The Vice Presidents. In the absence of the President
or in the event of his death, inability or refusal to act, or in the event
for any reason it shall be impracticable for the President to act
personally, the Vice President (or in the event there be more than one
Vice President, the Vice Presidents in the order designated by the Board
of Directors, or in the absence of any designation, then in the order of
their election) shall perform the duties of the President, and, when so
acting, shall have all the powers of and be subject to all the
restrictions upon the President. Any Vice President may sign, with the
Secretary or Assistant Secretary, certificates for shares of the
corporation and shall perform such other duties and have such authority as
from time to time may be delegated or assigned to him by the Chairman of
the Board, the President or the Board of Directors. The execution of any
instrument of the corporation by any Vice President shall be conclusive
evidence, as to third parties, of his authority to act in the stead of the
President.
4.08. The Secretary. The Secretary shall: (a) keep the
minutes of Annual Meetings and Special Meetings and of meetings of the
Board of Directors in one or more books provided for that purpose
(including records of actions taken without a meeting); (b) see that all
notices are duly given in accordance with the provisions of these by-laws
or as required by the Wisconsin Business Corporation Law; (c) be custodian
of the corporate records and of the seal of the corporation and see that
the seal of the corporation is affixed to all documents the execution of
which on behalf of the corporation under its seal is duly authorized; (d)
maintain a record of the shareholders of the corporation, in the 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
Chairman of the Board, the President, or a Vice President, certificates
for shares of the corporation, the issuance of which shall have been
authorized by resolution of the Board of Directors; (f) have general
charge of the stock transfer books of the corporation; and (g) in general
perform all duties incident to the office of Secretary and have such other
duties and exercise such authority as from time to time may be delegated
or assigned to him by the President or by the Board of Directors.
4.09. 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 to him 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 duties in such sum and with
such surety or sureties as the Board of Directors shall determine.
4.10. Assistant Secretaries and Assistant Treasurers. There
shall be such number of Assistant Secretaries and Assistant Treasurers as
the Board of Directors may from time to time authorize. The Assistant
Secretaries may sign with the Chairman of the Board, 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.
4.11. Other Assistants and Acting Officers. The Board of
Directors 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 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
the appointing officer shall have the power to perform all the duties of
the office to which he is so appointed to be an assistant, or as to which
he is so appointed to act, except as such power may be otherwise defined
or restricted by the Board of Directors or the appointing officer.
4.12. Salaries. The salaries of the principal officers
shall be fixed from time to time by the Board of Directors or by a duly
authorized committee thereof, and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a director of
the corporation.
ARTICLE V. CONTRACTS, LOANS, CHECKS
AND DEPOSITS; 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 Chairman of the Board, the
President or one of the Vice Presidents and by the Secretary, an Assistant
Secretary, the Treasurer or an Assistant Treasurer; the Secretary or an
Assistant Secretary, when necessary or required, shall affix the corporate
seal thereto; and when so executed no other party to such instrument or
any third party shall be required to make any inquiry into the authority
of the signing officer or officers.
5.02. Loans. No indebtedness for borrowed money shall be
contracted on behalf of the corporation and no evidences of such
indebtedness shall be issued in its name unless authorized by or under the
authority of a resolution of the Board of Directors. Such authorization
may be general or confined to specific instances.
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 always to the specific directions of the Board of Directors, (a)
any shares or other securities issued by any other corporation and owned
or controlled by this corporation may be voted at any meeting of security
holders of such other corporation by the Chairman of the Board of this
corporation if he be present, or in his absence 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 Chairman of the Board, or in his absence, 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 Chairman of the Board, the President or one of the Vice Presidents of
this corporation, without necessity of any authorization by the Board of
Directors, affixation of corporate seal or countersignature or attestation
by another officer. Any person or persons designated in the manner above
stated as the proxy or proxies of this corporation shall have full right,
power and authority to vote the shares or other securities issued by such
other corporation and owned by this corporation the same as such shares or
other securities might be voted by this corporation.
5.06. No Nominee Procedures. The corporation has not
established, and nothing in these by-laws shall be deemed to establish,
any procedure by which a beneficial owner of the corporation's shares that
are registered in the name of a nominee is recognized by the corporation
as the shareholder under Section 180.0723 of the Wisconsin Business
Corporation Law.
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
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 Chairman of the
Board, the President or a Vice President and by the Secretary or an
Assistant Secretary. All certificates for shares shall be consecutively
numbered or otherwise identified. The name and address of the person to
whom the shares represented thereby are issued, with the number of shares
and date of issue, shall be entered on the stock transfer books of the
corporation. All certificates surrendered to the corporation for transfer
shall be cancelled and no new certificate shall be issued until the former
certificate for a like number of shares shall have been surrendered and
cancelled, except as provided in Section 6.06.
6.02. Facsimile Signatures and Seal. The seal of the
corporation on any certificates for shares may be a facsimile. The
signature of the Chairman of the Board, President or Vice President and
the Secretary or Assistant Secretary upon a certificate may be facsimiles
if the certificate is manually signed on behalf of a transfer agent, or a
registrar, other than the corporation itself or an employee of the
corporation.
6.03. Signature by Former Officers. In case any officer,
who has signed or whose facsimile signature has been placed upon any
certificate for shares, shall have ceased to be such officer before such
certificate is issued, it may be issued by the corporation with the same
effect as if he were such officer at the date of its issue.
6.04. Transfer of Shares. Prior to due presentment of a
certificate for shares for registration of transfer the corporation may
treat the registered owner of such shares as the person exclusively
entitled to vote, to receive notifications and otherwise to have and
exercise all the rights and power of an owner. Where a certificate for
shares is presented to the corporation with a request to register for
transfer, the corporation shall not be liable to the owner or any other
person suffering loss as a result of such registration of transfer if (a)
there were on or with the certificate the necessary endorsements, and (b)
the corporation had no duty to inquire into adverse claims or has
discharged any such duty. The corporation may require reasonable
assurance that said endorsements are genuine and effective and 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. The Board of
Directors may direct a new certificate or certificates to be issued in
place of any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate
of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require
the person requesting such new certificate or certificates, or his or her
legal representative, to give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the
corporation with respect to the certificate alleged to have been lost,
stolen or destroyed.
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. In the absence of a resolution adopted by the Board of
Directors expressly determining that the consideration received or to be
received is adequate, Board approval of the issuance of the shares shall
be deemed to constitute such a determination. 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 other 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 the statutes of the State of Wisconsin as it may deem
expedient concerning the issue, transfer and registration of certificates
representing shares of the corporation.
ARTICLE VII. SEAL
7.01. The Board of Directors may provide a corporate seal in
an appropriate form.
ARTICLE VIII. FISCAL YEAR
8.01. The fiscal year of the corporation shall be as fixed
by resolution of the Board of Directors.
ARTICLE IX. INDEMNIFICATION
9.01. Certain Definitions. All capitalized terms used in
this Article IX and not otherwise hereinafter defined in this Section 9.01
shall have the meaning set forth in Section 180.0850 of the Statute. The
following terms (including any plural forms thereof) used in this Article
IX 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 9.04.
(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 9.04, 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 IX, 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 IX, the term "Party" shall
also include any Director or Officer or employee 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 IX, the term "Proceeding" shall
also include all Proceedings (i) brought under (in whole or in part) the
Securities Act of 1933, as amended, the Exchange Act, their respective
state counterparts, and/or any rule or regulation promulgated under any of
the foregoing; (ii) brought before an Authority or otherwise to enforce
rights hereunder; (iii) any appeal from a Proceeding; and (iv) any
Proceeding in which the Director or Officer 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.
9.02. Mandatory Indemnification. 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.
9.03. Procedural Requirements.
(a) A Director or Officer who seeks indemnification under
Section 9.02 shall make a written request therefor to the Corporation.
Subject to Section 9.03(b), within 60 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 9.05).
(b) No indemnification shall be required to be paid by the
Corporation pursuant to Section 9.02 if, within such 60-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 9.03(b),
the Board shall immediately authorize by resolution that an Authority, as
provided in Section 9.04, 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 60-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.
9.04. Determination of Indemnification.
(a) If the Board authorizes an Authority to determine a
Director's or Officer's right to indemnification pursuant to Section 9.03,
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, 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 60 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 9.05), including interest thereon at a reasonable rate, as
determined by the Authority, within 10 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 9.04 by either the Corporation or the Director or Officer,
including, without limitation, all Expenses of the selected Authority,
shall be paid by the Corporation.
9.05. Mandatory Allowance of Expenses.
(a) The Corporation shall pay or reimburse from time to time or
at any time, within 10 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 9.05 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 9.04.
(b) If the Director or Officer must repay any previously
advanced Expenses pursuant to this Section 9.05, such Director or Officer
shall not be required to pay interest on such amounts.
9.06. Indemnification and Allowance of Expenses of Certain
Others.
(a) The Board may, in its sole and absolute discretion as it
deems appropriate, pursuant to a majority vote thereof, indemnify a
director or officer of an Affiliate (who is not otherwise serving as a
Director or Officer) 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 has been successful on the
merits or otherwise in defense of a Proceeding, for all Expenses incurred
in the Proceeding if the employee was a Party because he or she was an
employee of the Corporation.
(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 9.06(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.
9.07. 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 IX.
9.08. 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, by an Authority selected
pursuant to Section 9.04(a)).
9.09. Severability. If any provision of this Article IX
shall be deemed invalid or inoperative, or if a court of competent
jurisdiction determines that any of the provisions of this Article IX
contravene public policy, this Article IX 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 necessary 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.
9.10. Nonexclusivity of Article IX. The rights of a
Director, Officer or employee (or any other person) granted under this
Article IX 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 IX 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.
9.11. Contractual Nature of Article IX; Repeal or Limitation
of Rights. This Article IX 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 IX 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 IX with regard to acts, omissions or events arising prior to such
repeal or limitation.
ARTICLE X. AMENDMENTS
10.01. By Shareholders. Except as otherwise provided by the
articles of incorporation of the corporation and these by-laws, the by-
laws of the corporation may be altered, amended or repealed and new by-
laws may be adopted by the shareholders at any Annual Meeting or Special
Meeting at which a quorum is in attendance.
10.02. By Directors. Except as otherwise provided in the
articles of incorporation of the corporation and these by-laws, the by-
laws of the corporation may also be altered, amended or repealed and new
by-laws may be adopted by the Board of Directors by affirmative vote of a
majority of the number of directors present at any meeting at which a
quorum is in attendance; provided, however, that the shareholders in
altering, adopting, amending or repealing a particular by-law may provide
therein that the Board of Directors may not amend, repeal or readopt that
by-law.
10.03. Implied Amendments. Any action taken or authorized by
the shareholders or by the Board of Directors, which would be inconsistent
with the by-laws then in effect but is taken or authorized by affirmative
vote of not less than the number of shares or the number of directors
required to amend the by-laws so that the by-laws would be consistent with
such action, shall be given the same effect as though the by-laws 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
CONSOLIDATED FINANCIAL STATEMENTS OF GIDDINGS & LEWIS, INC. AS OF AND
FOR THE PERIOD ENDED MARCH 31, 1996 AND IS QUALIFIED IN ITS ENTIRETY
BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> MAR-31-1996
<CASH> 7,091
<SECURITIES> 0
<RECEIVABLES> 356,282
<ALLOWANCES> 3,012
<INVENTORY> 105,562
<CURRENT-ASSETS> 476,418
<PP&E> 220,296
<DEPRECIATION> 107,197
<TOTAL-ASSETS> 814,208
<CURRENT-LIABILITIES> 169,090
<BONDS> 100,000
0
0
<COMMON> 3,458
<OTHER-SE> 498,050
<TOTAL-LIABILITY-AND-EQUITY> 814,208
<SALES> 192,420
<TOTAL-REVENUES> 192,420
<CGS> 149,725
<TOTAL-COSTS> 149,725
<OTHER-EXPENSES> 5,480
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2,254
<INCOME-PRETAX> 14,665
<INCOME-TAX> 4,248
<INCOME-CONTINUING> 10,417
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 10,417
<EPS-PRIMARY> .30
<EPS-DILUTED> .30
</TABLE>
