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 the quarterly period ended July 4, 1998
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 0-6187
BANTA CORPORATION
(Exact name of registrant as specified in its charter)
Wisconsin 39-0148550
(State or other jurisdiction (IRS Employer
of incorporation or organization) I.D. Number)
225 Main Street, Menasha, Wisconsin 54952
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (920) 751-7777
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 / /
The registrant had outstanding on July 4, 1998, 29,472,275 shares of
$.10 par value common stock.
<PAGE>
BANTA CORPORATION AND SUBSIDIARIES
Quarterly Report on Form 10-Q
For the Quarter Ended July 4, 1998
INDEX
PART I - FINANCIAL INFORMATION Page Number
Item 1 - Financial Statements:
Unaudited Consolidated Condensed Balance Sheets at
July 4, 1998 and January 3, 1998 3
Unaudited Consolidated Condensed Statements of Earnings
for the Three Months and Six Months Ended July 4, 1998
and June 28, 1997 4
Unaudited Consolidated Condensed Statements of Cash Flows
for the Six Months Ended July 4, 1998 and June 28, 1997 5
Notes to Unaudited Consolidated Condensed
Financial Statements 6-7
Item 2 - Management's Discussion and Analysis of Financial
Condition and Results of Operations 8-10
Item 3 - Qualitative and Quantitative Disclosures about
Market Risk 10
PART II - OTHER INFORMATION
Item 4 - Submission of Matters to a Vote of Security Holders 11
Item 5 - Other Information 11
Item 6 - Exhibits and Reports on Form 8-K 12
Exhibit Index 13
<PAGE>
PART I Item 1. Financial Statements
BANTA CORPORATION AND SUBSIDIARIES
UNAUDITED CONSOLIDATED CONDENSED BALANCE SHEETS
(Dollars in thousands)
July 4, 1998 January 3, 1998
ASSETS
Current Assets
Cash and cash equivalents $ 19,048 $ 16,432
Receivables 197,235 228,483
Inventories 84,842 95,341
Other current assets 27,356 25,420
-------- --------
Total Current Assets 328,481 365,676
-------- --------
Plant and Equipment 744,128 718,669
Less: Accumulated Depreciation (409,600) (380,312)
-------- --------
Plant and Equipment, net 334,528 338,357
-------- --------
Other Assets 16,096 14,524
Cost in Excess of Net Assets
of Subsidiaries Acquired 64,457 62,659
-------- --------
$743,562 $781,216
======== ========
LIABILITIES AND SHAREHOLDERS'INVESTMENT
Current Liabilities
Short-term debt $ 27,525 $ 33,880
Accounts payable 80,726 106,235
Accrued salaries and wages 24,457 22,575
Other accrued liabilities 25,680 32,492
Current maturities of long-term debt 5,166 5,186
-------- --------
Total Current Liabilities 163,554 200,368
-------- --------
Long-term Debt 123,952 130,065
Deferred Income Taxes 18,540 19,831
Other Non-Current Liabilities 17,555 16,849
Shareholders' Investment
Preferred stock-$10 par value;
authorized 300,000 shares; none issued 0 0
Common stock-$.10 par value;
authorized 75,000,000 shares;
29,472,275 and 29,793,279 shares issued
and outstanding, respectively
Amount in excess of par value of stock 2,947 2,979
Accumulated other comprehensive income (loss) 25,088 35,542
Retained earnings (4,138) (3,498)
Total Shareholders' Investment 396,064 379,080
-------- --------
419,961 414,103
-------- --------
$743,562 $781,216
======== ========
See accompanying notes to consolidated financial statements
<PAGE>
BANTA CORPORATION AND SUBSIDIARIES
UNAUDITED CONSOLIDATED CONDENSED STATEMENT OF EARNINGS
(Dollars in thousands, except per share amounts)
Three Months Ended Six Months Ended
July 4, June 28, July 4, June 28,
1998 1997 1998 1997
Net sales $316,000 $276,217 $646,810 $551,580
Cost of goods sold 249,875 218,571 515,871 441,212
-------- -------- -------- --------
Gross earnings 66,125 57,646 130,939 110,368
Selling and administrative
expenses 41,041 35,110 84,541 69,495
-------- -------- -------- --------
Earnings from operations 25,084 22,536 46,398 40,873
Interest expense (2,769) (2,424) (5,687) (5,217)
Other, net (421) 572 (785) 1,446
-------- -------- -------- --------
Earnings before income taxes 21,894 20,684 39,926 37,102
Provision for income taxes 8,500 8,100 15,500 14,500
-------- -------- -------- --------
Net earnings $ 13,394 $ 12,584 $ 24,426 $ 22,602
======== ======== ======== ========
Basic earnings per share
of common stock $ .45 $ .42 $ .82 $ .75
======== ======== ======== ========
Diluted earnings per share
of common stock $ .45 $ .42 $ .82 $ .75
======== ======== ======== ========
Cash dividends per
common share $ .13 $ .12 $ .26 $ .23
======== ======== ======== ========
See accompanying notes to consolidated financial statements.
<PAGE>
BANTA CORPORATION AND SUBSIDIARIES
UNAUDITED CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(Dollars in thousands)
Six Months Ended
July 4, 1998 June 28, 1997
Cash Flows From Operating Activities
Net earnings $ 24,426 $ 22,602
Depreciation and amortization 33,862 30,324
Deferred income taxes (1,291) 96
Change in assets and liabilities
Decrease in receivables 31,248 8,003
Decrease (increase) in inventories 10,499 (8,409)
Increase in other current assets (1,936) (3,111)
(Decrease) increase in accounts payable
and accrued liabilities (29,733) 7,148
Increase in other non-current assets (1,572) (1,933)
Other, net (640) (1,403)
------- -------
Cash provided from operating activities 64,863 53,317
------- -------
Cash Flows From Investing Activities
Capital expenditures, net (31,831) (27,468)
------- -------
Cash Flows From Financing Activities
Repayment of notes payable, net (6,355) (2,390)
Repayment of long-term debt (6,133) (634)
Dividends paid (7,442) (6,980)
Proceeds from exercise of stock options 2,512 2,048
Repurchase of common stock (12,998) (32,570)
------- -------
Cash used for financing activities (30,416) (40,526)
------- -------
Net increase (decrease) in cash 2,616 (14,677)
Cash at beginning of period 16,432 57,417
------- -------
Cash at end of period $19,048 $42,740
======= =======
Cash payments for:
Interest, net of amount capitalized $ 6,802 $4,996
Income taxes 17,372 13,212
See accompanying notes to consolidated statements.
<PAGE>
BANTA CORPORATION AND SUBSIDIARIES
NOTES TO UNAUDITED CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
1) Basis of Presentation
The condensed financial statements included herein have been prepared
by the Corporation, without audit, pursuant to the rules and
regulations of the Securities and Exchange Commission. Certain
information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting
principles have been condensed or omitted pursuant to such rules and
regulations, although the Corporation believes that the disclosures
are adequate to make the information presented not misleading. It is
suggested that these condensed financial statements be read in
conjunction with the financial statements and the notes thereto
included in the Corporation's latest Annual Report on Form 10-K.
In the opinion of management, the aforementioned statements reflect
all adjustments (consisting only of normal recurring adjustments)
necessary for a fair presentation of the results for the interim
periods. Results for the period ended July 4, 1998 are not
necessarily indicative of results that may be expected for the year
ending January 2, 1999.
2) Inventories
The majority of the Corporation's inventories used in its printing
operations are accounted for at cost determined on a last-in, first-
out (LIFO) basis, which is not in excess of market. The remaining
inventories are stated at the lower of cost or market using the
first-in, first-out (FIFO) method. Inventories include material,
labor and manufacturing overhead.
Inventory amounts at July 4, 1998 and January 3, 1998 were as
follows:
(Dollars in thousands)
July 4, 1998 January 3, 1998
Raw Materials and Supplies $47,909 $55,026
Work-In-Process and Finished Goods 41,824 44,908
------- -------
FIFO value (current cost of
all inventories) 89,733 99,934
Excess of current cost
over carrying value
of LIFO inventories (4,891) (4,593)
------- -------
Net Inventories $84,842 $95,341
======= =======
3) Earnings Per Share of Common Stock
Basic earnings per share of common stock is computed by dividing net
earnings by the weighted average number of common shares outstanding
during the period. Diluted earnings per share of common stock is
computed by dividing net earnings by the weighted average number of
common shares and common equivalent shares, which relate entirely to
the assumed exercise of stock options. The weighted average shares
used in the computation of earnings per share were as follows (in
millions of shares):
Three months ended Six months ended
July 4, 1998 June 28, 1997 July 4, 1998 June 28, 1997
Basic 29.7 29.8 29.7 30.1
Diluted 29.9 30.0 29.9 30.3
4) Restructuring Charge
In the third quarter of 1997, the Corporation recorded a
restructuring charge of $13.5 million ($8.1 million after tax or $.27
per common share) related to the sale of its point-of-purchase sign
and display business, the discontinuation of its intaglio print-
based security products business and the interactive video
operation, and the closing of three Global Turnkey facilities. At
January 3, 1998, the remaining reserve totaled $3.7 million, which
related to anticipated expenditures associated with the closing the
facilities and related matters. During the first half of 1998, costs
of approximately $2.3 million, related primarily to lease termination
costs, were charged against the reserve. It is expected that the
restructuring initiatives will be completed in 1998 and charged
against the remaining reserve.
5) Comprehensive Income
Total comprehensive income, comprised of net income and other
comprehensive income (loss), was $13,913,000 and $11,213,000 for the
second quarter of 1998 and 1997, respectively. For the first half of
1998 and 1997, comprehensive income was $23,786,000 and $19,635,000,
respectively. Other comprehensive income (loss) was comprised
solely of foreign currency translation adjustments. The Corporation
does not record U.S. income taxes on foreign currency translation
adjustments because it does not provide for such taxes on
undistributed earnings of foreign subsidiaries.
6) Accounting for Internal-use Software
In March 1998, the Accounting Standards Executive Committee of the
AICPA issued a Statement of Position (SOP) titled "Accounting for
the Costs of Computer Software Developed or Obtained for Internal
Use." The Corporation elected to adopt this SOP as of the beginning
of its 1998 fiscal year. The adoption of this SOP has not had a
material impact on the Corporation's financial statements.
7) Accounting for Derivative Instruments and Hedging Activities
In June 1998, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 133, AAccounting for
Derivative Instruments and Hedging Activities.@ The new standard
requires that an entity recognize derivatives as either assets or
liabilities on its balance sheet and measure those instruments at
fair value. The Corporation intends to adopt this standard in 2000.
The adoption of this standard is not expected to have a material
effect on the Corporation's financial statements.
Item 2.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
FINANCIAL CONDITION
Liquidity and Capital Resources
The Corporation's net working capital decreased slightly during the first
half of 1998. Seasonality and aggressive management of receivables and
inventories during the quarter resulted in the reduction in current assets
incorporating the Corporation's program for increased shareholder value
concepts. The reduction in current liabilities was primarily due to the
repayment of short-term debt and payables with cash provided from
operations. Also during the first half of 1998, the Corporation
repurchased approximately 436,000 shares of common stock at an aggregate
purchase price of $13.0 million pursuant to its common stock repurchase
program. In April 1998, the Board authorized the repurchase of up to an
additional $60 million of common stock. Any future stock repurchases are
expected to be funded by a combination of cash provided from operations
and short-term borrowings.
Capital expenditures were $31.8 million during the first half of 1998, an
increase of $4.4 million from the amount expended during the first half of
1997. Capital requirements for the full year are expected to be between
$85 million and $95 million and are expected to be funded by a combination
of cash provided from operations and short-term borrowings. The increase
in capital spending reflects the Corporation's commitment to expand and
modernize its facilities. Long-term debt as a percentage of total
capitalization was down over 1% from 23.9% to 22.8% due to the current
year repayments.
RESULTS OF OPERATIONS
Net Sales
Sales for the second quarter of 1998 were $39.8 million or 14% higher than
in the second quarter of 1997. Over half of the increase was a result of
sales from companies acquired during the second half of 1997. Operating
activity levels during the second quarter of 1998, in all of the
Corporation's major operating groups, were above 1997 operating levels.
Sales gains continued in the book market where demand for educational
products, including educational media, was favorable. Activity levels
were also strong in the magazine market due to increased page counts and
market share gains as well as the impact of the acquisition of Greenfield
Printing & Publishing during the fourth quarter of 1997. Continued
imaging personalization resulted in additional sales for the direct
marketing group while software releases in Europe lead to increased sales
in turnkey services. Single-use product sales increased primarily due to
the acquisition of The Omnia Group during the third quarter of 1997.
Sales for the first half of 1998 were $95.2 million or 17% higher than for
the first half of 1997. Slightly over half of the increase was a result
of sales from companies acquired during the second half of 1997. Trends in
operating activity levels for the first two quarters of 1998 were similar
to those described above for the second quarter.
Cost of Goods Sold
Cost of goods sold as a percentage of sales remained at 79.1% for the
second quarter of 1998 compared to the second quarter of 1997. Cost of
goods sold as a percentage of sales decreased slightly from 80.0% for the
first half of 1997 to 79.2% for the first half of 1998. This slight
margin gain was primarily due to changes in product mix, which more than
offset a continued competitive pricing environment in commercial markets.
Selling and Administrative Expenses
Selling and administrative expenses were $5.9 million higher for the
second quarter of 1998 than for the second quarter of 1997 and $15.0
million higher for the first half of 1998 as compared with the first half
of 1997. The increase is primarily due to the inclusion of selling and
administrative expenses for the companies acquired in 1997 along with
higher levels of operating activity at previously owned facilities.
Interest Expense
Interest expense was $345,000 higher in the second quarter of 1998 than in
the second quarter of 1997 and $470,000 higher for the first half of 1998
than for the first half of 1997 due to increased debt levels to support
the 1997 acquisitions.
Income Taxes
The Corporation's effective income tax rates declined slightly as
indicated in the table below due to an increase in foreign earnings which
are taxed at lower rates.
Effective Tax Rate
1998 1997
Second Quarter 38.8% 39.2%
First Half 38.8% 39.1%
Other Matters
During 1998, the Corporation completed a preliminary evaluation of its
computer software to determine its ability to handle dates beginning with
the year 2000. It was determined that a significant portion of the
Corporation's software was year-2000 ready. This evaluation also resulted
in the development of detailed plans to replace certain software and to
reprogram other software. Banta has implemented a program to confirm that
all business and manufacturing system hardware, control systems and
software supplied by third party vendors is year-2000 ready. Although
complete assurance can not be given, management currently believes it is
devoting the necessary resources to resolve all significant year-2000
issues in a timely manner. The Corporation is currently conducting audits
and operational readiness testing as well as pursuing certification of
year-2000 readiness from significant third party vendors. There have
been no significant changes in the total costs expected to be incurred.
Currently, the Corporation expects the costs to approximate $3 million in
1998 and $2.5 million in 1999.
Cautionary Statements for Forward-Looking Information
This document includes forward-looking statements. Statements that
describe future expectations, plans or strategies are considered forward-
looking. Such statements are subject to certain risks and uncertainties
which could cause actual results to differ materially from those currently
anticipated. Factors that could affect actual results include, among
others, changes in customers' demand for the Corporation's products,
changes in raw material costs and availability, continued success in the
implementation of the Corporation's single-source marketing strategy,
pricing actions by competitors, success in the integration of businesses
acquired in 1997, unanticipated events relating to achieving year-2000
compliance and general changes in economic conditions. These factors
should be considered in evaluating the forward-looking statements, and
undue reliance should not be placed on such statements. The forward-
looking statements included herein are made as of the date hereof, and the
Corporation undertakes no obligation to update publicly such statements to
reflect subsequent events or circumstances.
Item 3. Qualitative and Quantitative Disclosures about Market Risk
Not applicable
PART II: OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders
(a) - (c)
At the annual meeting of shareholders held on April 28, 1998, all of
the persons nominated as directors were elected for terms expiring at
the 1999 Annual Meeting. The following table sets forth certain
information with respect to such election:
Shares
Name Shares Withholding
Voted For Authority
Jameson A. Baxter 28,763,507 181,066
Donald D. Belcher 28,741,029 203,544
George T. Brophy 28,744,849 199,724
William J. Cadogan 28,763,507 181,066
Henry T. DeNero 28,763,307 181,266
Richard L. Gunderson 28,763,257 181,316
Gerald A. Henseler 28,763,507 181,066
Bernard S. Kubale 28,035,103 909,470
Michael J. Winkler 28,763,507 181,066
Item 5. Other Information
Proposals of shareholders pursuant to Rule 14a-8 under the Securities
Exchange Act of 1934, as amended ("Rule 14a-8"), that are intended to be
presented at the 1999 annual meeting must be received by the Corporation
no later than November 20, 1998 to be included in the Corporation's proxy
materials for that meeting. Further, a shareholder who otherwise intends
to present business at the 1999 annual meeting must comply with the
requirements set forth in the Corporation's By-Laws. Among other things,
to bring business before an annual meeting, a shareholder must give
written notice thereof, complying with the By-Laws, to the Secretary of
the Corporation not less than 60 days and not more than 90 days prior to
the second Tuesday in the month of April. Under the By-Laws for purposes
of the 1999 annual meeting of shareholders, if the Corporation does not
receive notice of a shareholder proposal (submitted otherwise than
pursuant to Rule 14a-8) on or prior to February 12, 1999, then the notice
will be considered untimely and the Corporation will not be required to
present such proposal at the 1999 annual meeting. If the Board of
Directors nonetheless chooses to present such proposal at the 1999 annual
meeting, then the persons named in proxies solicited by the Board of
Directors for the 1999 annual meeting may exercise discretionary voting
power with respect to such proposal.
Item 6. Exhibits and Report on Form 8-K
(a) Exhibits-
3.1 - Amendment to By-laws
3.2 - By-laws as amended
27 - Financial Data Schedule (EDGAR version only)
(b) No reports on Form 8-K were filed during the quarter for which this
report is filed.
<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.
BANTA CORPORATION
/S/ GERALD A. HENSELER
Gerald A. Henseler
Executive Vice President,
Chief Financial Officer and Treasurer
Date August 11, 1998
<PAGE>
BANTA CORPORATION
EXHIBIT INDEX TO FORM 10-Q
For The Quarter Ended July 4, 1998
Exhibit Number
3.1 Amendment to By-laws
3.2 By-laws as amended
27 Financial Data Schedule (EDGAR version only)
Exhibit 3.1
BY-LAW AMENDMENT
RESOLVED, that effective immediately prior to the 1998 Annual
Meeting of Shareholders, Article III, Section 3.01 of the By-Laws of the
Corporation is hereby amended to reduce the number of authorized directors
to nine (9).
Exhibit 3.2
04/28/98
BY-LAWS
OF
BANTA CORPORATION
(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. 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 of the corporation (the "Annual Meeting") shall be held on
the second Tuesday in the month of April of each year, at the hour of two
(2) o'clock p.m. (local time), or at such other time and date as may be
fixed by or under the authority of the Board of Directors, for the purpose
of electing directors and for the transaction of such other business as
may properly come before the Annual Meeting in accordance with Section
2.13 of these by-laws. If the day fixed for the Annual Meeting shall be a
legal holiday in the State of Wisconsin, such meeting shall be held on the
next succeeding business day. If the election of directors shall not be
held on the day designated herein, or fixed as herein provided, for any
Annual Meeting, or at any adjournment thereof, the Board of Directors
shall cause the election to be held at a special meeting of the
shareholders (a "Special Meeting") as soon thereafter as conveniently may
be. 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. Special Meetings.
(a) A Special Meeting may be called only by (i) the Chairman of
the Board, (ii) the President or (iii) 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 2.02, 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
day 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 2.13 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 2.02, 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 or series and number of
shares of the corporation which are owned of record and beneficially by
each such shareholder, shall be sent to the Secretary by hand or by
certified or registered mail, return receipt requested, and shall be
received by the Secretary within 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 2.02, the Secretary receives a
written agreement signed by each Soliciting Shareholder (as defined
herein), pursuant to which each Soliciting Shareholder, jointly and
severally, agrees to pay the corporation's costs of holding the Special
Meeting, including the costs of preparing and mailing proxy materials for
the corporation's own solicitation, provided that if each of the
resolutions introduced by any Soliciting Shareholder at such meeting is
adopted, and each of the individuals nominated by or on behalf of any
Soliciting Shareholder for election as director at such meeting is
elected, then the Soliciting Shareholders shall not be required to pay
such costs. For purposes of this paragraph (d), the following terms shall
have the meanings set forth below:
(i) "Affiliate" of any Person 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 for a meeting delivered to the corporation pursuant to
paragraph (c) of this Section 2.02 is 10 or fewer, each
shareholder signing any such demand;
(B) if the number of shareholders signing the demand or
demands for a meeting delivered to the corporation pursuant to
paragraph (c) of this Section 2.02 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 2.02, 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 2.02 and/or the written agreement described in this
paragraph (d) in order to prevent the purposes of this Section
2.02 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 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
2.05 of these by-laws); 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
any 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 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 nationally or regionally
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 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.
2.03. Place of Meeting. The Board of Directors, the
Chairman of the Board or the President 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 business 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 or the
President.
2.04. Notice of Meeting. Written notice stating the place,
day and hour of any Annual Meeting or Special Meeting shall be delivered
not less than 10 (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 2.04 shall be deemed to be
effective when deposited in the United States mail, addressed to each
shareholder at his or her address as it appears on the stock record books
of the corporation, with postage thereon prepaid. Unless otherwise
required by the Wisconsin Business Corporation Law, 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 2.02 of these by-laws and (ii)
shall contain all of the information required in the notice received by
the corporation in accordance with Section 2.13(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.
2.05. 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.
2.06. Shareholder Lists. 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 or her agent may, on
written demand, inspect and, subject to the limitations imposed by the
Wisconsin Business Corporation Law, copy the list, during regular business
hours and at his or her expense, during the period that it is available
for inspection pursuant to this Section 2.06. The corporation shall make
the shareholders' list available at the meeting and any shareholder or his
or her agent or attorney may inspect the list at any time during the
meeting or any adjournment thereof. Refusal or failure to prepare or make
available the shareholders' list shall not affect the validity of any
action taken at a meeting of shareholders.
2.07. 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 2.07.
Except as otherwise provided in the Articles of Incorporation, any by-law
adopted under authority granted in the Articles of Incorporation, or the
Wisconsin Business Corporation Law, a majority of the votes entitled to be
cast on the matter shall constitute a quorum of the voting group for
action on that matter. Once a share is represented for any purpose at 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, any by-law adopted under
authority granted in the Articles of Incorporation, or the Wisconsin
Business Corporation Law requires a greater number of affirmative votes.
Unless otherwise provided in the Articles of Incorporation, directors
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. For purposes of this Section
2.07(a), "plurality" means that the individuals with the largest number of
votes are elected as directors up to the maximum number of directors to be
chosen at the Annual Meeting or Special Meeting.
(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 pursuant to 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.
2.08. Conduct of Meetings. The Chairman of the Board, and
in his absence the President, shall call any Annual Meeting or Special
Meeting to order and shall act as chairman of such meeting. In the
absence of the Chairman of the Board and the President, such duties shall
be performed by a Vice-President in the order provided under Section 4.07,
or in their absence, by any person chosen by the shareholders present.
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.
2.09. 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 or
her attorney-in-fact. An appointment of a proxy is effective when received
by the Secretary or other officer or agent of the corporation authorized
to tabulate votes. An appointment is valid for eleven months from the
date of its signing unless a different period is expressly provided in the
appointment form. The Board of Directors shall have the power and
authority to make rules establishing presumptions as to the validity and
sufficiency of proxies.
2.10. Voting of Shares. Each outstanding share shall be
entitled to one vote upon each matter submitted to a vote at any 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
Articles of Incorporation or the Wisconsin Business Corporation Law.
2.11. Acceptance of Instruments Showing Shareholder Action.
If the name signed on a vote, consent, waiver or proxy appointment
corresponds to the name of a shareholder, the corporation, if acting in
good faith, may accept the vote, consent, waiver or proxy appointment and
give it effect as the act of a shareholder. If the name signed on a vote,
consent, waiver or proxy appointment does not correspond to the name of a
shareholder, the corporation, if acting in good faith, may accept the
vote, consent, waiver or proxy appointment and give it effect as the act
of the shareholder if any of the following apply:
(a) The shareholder is an entity and the name signed purports
to be that of an officer or agent of the entity.
(b) The name purports to be that of a personal representative,
administrator, executor, guardian or conservator representing the
shareholder and, if the corporation requests, evidence of fiduciary status
acceptable to the corporation is presented with respect to the vote,
consent, waiver or proxy appointment.
(c) The name signed purports to be that of a receiver or
trustee in bankruptcy of the shareholder and, if the corporation requests,
evidence of this status acceptable to the corporation is presented with
respect to the vote, consent, waiver or proxy appointment.
(d) The name signed purports to be that of a pledgee,
beneficial owner, or attorney-in-fact of the shareholder and, if the
corporation requests, evidence acceptable to the corporation of the
signatory's authority to sign for the shareholder is presented with
respect to the vote, consent, waiver or proxy appointment.
(e) Two or more persons are the shareholders as 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.
2.12. Waiver of Notice by Shareholders. A shareholder may
waive any notice required by the Wisconsin Business Corporation Law, the
Articles of Incorporation 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.
2.13. 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 2.13.
(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 2.13, 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 executive offices of the corporation not less than
60 days nor more than 90 days prior to the second Tuesday 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 second Tuesday 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 2.13 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 second Tuesday in
the month of April, a shareholder's notice required by this
Section 2.13 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 executive 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 2.04 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 2.13. 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 executive 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 2.13 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 2.13. 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 2.13
and, if any proposed nomination or business is not in compliance
with this Section 2.13, to declare that such defective proposal
shall be disregarded.
(ii) For purposes of this Section 2.13, "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 2.13, 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 2.13. Nothing in this Section 2.13 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 and Number. 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. The number of directors of the corporation shall be nine (9).
3.02. Tenure and Qualifications. Each director shall hold
office until the next annual meeting of shareholders and until his
successor shall have been elected and qualified, or until there is a
decrease in the number of directors which takes effect after the
expiration of his term, or until his prior death, resignation or removal.
A director may be removed by the shareholders only at a meeting called for
the purpose of removing the director, and the meeting notice shall state
that the purpose, or one of the purposes, of the meeting is removal of the
director. A director may be removed from office but only for cause (as
defined herein) if the number of votes cast to remove the director exceeds
the number of votes cast not to remove him; provided, however, that, if
the Board of Directors, by resolution, shall have recommended removal of a
director, then the shareholders may remove such director without cause by
the vote referred to above. As used herein, "cause" shall exist only if
the director whose removal is proposed has been convicted of a felony by a
court of competent jurisdiction, where such conviction is no longer
subject to direct appeal, or has been adjudged liable for actions or
omissions in the performance of his duty to the corporation in a matter
which has had a materially adverse effect on the business of the
corporation, where such adjudication is no longer subject to appeal. 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 but must
be shareholders of the corporation. A director shall retire no later than
the end of the term in which occurs the earlier of the director's
attainment of age seventy (70) or the completion of fifteen (15) years of
service as a non-employee director; provided, however, that the fifteen
(15) year limitation shall be inapplicable to any director who had
completed at least fifteen (15) years as a non-employee director as of
January 1, 1995. As used herein, a "non-employee director" shall mean a
director who is not an employee of the corporation or any of its
subsidiaries.
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 or any three directors. The Chairman of the Board or the
President 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 meeting shall be
the principal business 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 at
such other address as such director shall have designated in writing filed
with the Secretary, in each case not less than 48 hours prior 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 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 or these
by-laws, a majority of the number of 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 or these by-laws.
3.08. Conduct of Meetings. The Chairman of the Board, and
in his absence, the President, or 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
meeting of the Board of Directors shall be prepared and distributed to
each director.
3.09. Vacancies. Except as provided below, any vacancy
occurring in the Board of Directors, including a vacancy resulting from an
increase in the number of directors, may be filled by any of the
following: (a) the shareholders; (b) the Board of Directors; or (c) if
the directors remaining in office constitute fewer than a quorum of the
Board of Directors, the directors, by the affirmative vote of a majority
of all directors remaining in office. If the vacant office was held by a
director elected by a voting group of shareholders, only the holders of
shares of that voting group may vote to fill the vacancy if it is filled
by the shareholders, and only the remaining directors elected by that
voting group may vote to fill the vacancy if it is filled by the
directors. A vacancy that will occur at a specific later date, because of
a resignation effective at a later date or otherwise, may be filled before
the vacancy occurs, but the new director may not take office until the
vacancy occurs.
3.10. Compensation. The Board of Directors, by affirmative
vote of a majority of the directors then in office, and irrespective of
any personal interest of any of its members, may establish reasonable
compensation of all directors for services to the corporation as
directors, officers or otherwise, or may delegate such authority to an
appropriate committee. The Board of Directors also shall have authority
to provide for or to delegate authority to an appropriate committee to
provide for reasonable pensions, disability or death benefits, and other
benefits or payments, to directors, officers and employees to the
corporation.
3.11. 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 dissents or abstains from an
action taken and minutes of the meeting are prepared that show the
director's dissent or abstention from the action taken; (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; or (d) the director dissents or abstains from
an action taken, minutes of the meeting are prepared that fail to show the
director's dissent or abstention from the action taken, and the director
delivers to the corporation a written notice of that failure that complies
with the Wisconsin Business Corporation Law promptly after receiving the
minutes. Such right to dissent or abstain shall not apply to a director
who voted in favor of such action.
3.12. Committees. 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. 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
corporation's Articles of Incorporation; (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.
3.13. 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.
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.
3.14. Unanimous Consent without Meeting. Any action
required or permitted by the Articles of Incorporation or these by-laws or
any provision of the Wisconsin Business Corporation Law to be taken by the
Board of Directors (or a 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 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, one or more
Vice-Presidents, not to exceed six (6) at any given time, 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 the 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 and Resignation. 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. An
officer may resign at any time by delivering notice to the corporation
that complies with the Wisconsin Business Corporation Law. The
resignation shall be effective when the notice is delivered, unless the
notice specifies a later effective date and the corporation accepts the
later effective date.
4.04. Vacancies. A vacancy in any principal office because
of death, resignation, removal, disqualification or otherwise, shall be
filled by the Board of Directors for the unexpired portion of the term.
If a resignation of an officer is effective at a later date as
contemplated by Section 4.03 hereof, the Board of Directors may fill the
pending vacancy before the effective date if the Board provides that the
successor may not take office until the effective date.
4.05. Chairman of the Board. The Chairman of the Board
shall, when present, preside at all Annual Meetings and Special Meetings
and at all meetings of the Board of Directors. He shall perform such
other duties and functions as shall be assigned to him from time to time
by the Board of Directors or in these by-laws. Except where by law the
signature of the President of the corporation is required, the Chairman of
the Board shall possess the same power and authority as the President 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.
4.06. President. The President shall be the chief 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 President. He shall have authority to sign, execute and acknowledge,
on behalf of the corporation, all deeds, mortgages, bonds, stock
certificates, contracts, leases, reports and all other documents or
instruments necessary or proper to be executed in the course of the
corporation's regular business, or which shall be authorized by resolution
of the Board of Directors; and, except as otherwise provided by law or the
Board of Directors, he may authorize any Vice President or other officer
or agent of the corporation to sign, execute and acknowledge such
documents or instruments in his place and stead. In general he shall
perform all duties incident to the office of President and such other
duties as may be prescribed by the Board of Directors from time to time.
4.07. The 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 President or
by the Board of Directors. The execution of any instrument of the
corporation by any Vice-President shall be conclusive evidence, as to
third parties, of his authority to act in the stead of the President.
4.08 The Secretary. The Secretary shall: (a) keep the minutes
of all Annual Meetings and Special Meetings and of all 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 a form that
permits preparation of a list of the names and addresses of all
shareholders, by class or series of shares and showing the number and
class or series of shares held by each shareholder; (e) sign with the
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 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 depositories 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
signatures of the Chairman of the Board, the President or any
Vice-President and the Secretary or Assistant Secretary upon a certificate
may be facsimiles if the certificate is countersigned by a transfer agent,
or registered by 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 exercise all
the rights and powers of an owner. Where a certificate for shares is
presented to the corporation with a request to register for transfer, the
corporation shall not be liable to the owner or any other person suffering
loss as a result of such registration of transfer if (a) there were on or
with the certificate the necessary endorsements, and (b) the corporation
had no duty to inquire into adverse claims or has discharged any such
duty. The corporation may require reasonable assurance that said
endorsements are genuine and effective and in compliance with such other
regulations as may be prescribed under the authority of the Board of
Directors.
6.05. Restrictions on Transfer. The face or reverse side of
each certificate representing shares shall bear a conspicuous notation of
any restriction imposed by the corporation upon the transfer of such
shares.
6.06. Lost, Destroyed or Stolen Certificates. Where the
owner claims that his certificate for shares has been lost, destroyed or
wrongfully taken, a new certificate shall be issued in place thereof if
the owner (a) so requests before the corporation has notice that such
shares have been acquired by a bona fide purchaser, and (b) files with the
corporation a sufficient indemnity bond, and (c) satisfies such other
reasonable requirements as the Board of Directors may prescribe.
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 Regulation. 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 shall provide a corporate seal
which shall be circular in form and shall have inscribed thereon the name
of the corporation and the state of incorporation and the words,
"Corporate Seal".
ARTICLE VIII. INDEMNIFICATION
8.01. Certain Definitions. All capitalized terms used in
this Article VIII and not otherwise hereinafter defined in this Section
8.01 shall have the meaning set forth in Section 180.0850 of the Statute.
The following capitalized terms (including any plural forms thereof) used
in this Article VIII shall be defined as follows:
(a) "Affiliate" shall include, without limitation, any
corporation, partnership, joint venture, employee benefit plan, trust or
other enterprise that directly or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control
with, the Corporation.
(b) "Authority" shall mean the entity selected by the Director
or Officer to determine his or her right to indemnification pursuant to
Section 8.04.
(c) "Board" shall mean the entire then elected and serving
Board of Directors of the Corporation, including all members thereof who
are Parties to the subject Proceeding or any related Proceeding.
(d) "Breach of Duty" shall mean the Director or Officer
breached or failed to perform his or her duties to the Corporation and his
or her breach of or failure to perform those duties is determined, in
accordance with Section 8.04, to constitute misconduct under Section
180.0851 (2) (a) 1, 2, 3 or 4 of the Statute.
(e) "Corporation," as used herein and as defined in the Statute
and incorporated by reference into the definitions of certain other
capitalized terms used herein, shall mean this Corporation, including,
without limitation, any successor corporation or entity to this
Corporation by way of merger, consolidation or acquisition of all or
substantially all of the capital stock or assets of this Corporation.
(f) "Director or Officer" shall have the meaning set forth in
the Statute; provided, that, for purposes of Article VIII, it shall be
conclusively presumed that any Director or Officer serving as a director,
officer, partner, trustee, member of any governing or decision-making
committee, employee or agent of an Affiliate shall be so serving at the
request of the Corporation.
(g) "Disinterested Quorum" shall mean a quorum of the Board who
are not Parties to the subject Proceeding or any related Proceeding.
(h) "Party" shall have the meaning set forth in the Statute;
provided, that, for purposes of this Article VIII, the term "Party" shall
also include any Director or Officer or employee 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, for purposes of this Article VIII, 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 such Proceeding is authorized by a majority vote
of a Disinterested Quorum.
(j) "Statute" shall mean Sections 180.0850 through 180.0859,
inclusive, of the Wisconsin Business Corporation Law, Chapter 180 of the
Wisconsin Statutes, as the same shall then be in effect, including any
amendments thereto, but, in the case of any such amendment, only to the
extent such amendment permits or requires the Corporation to provide
broader indemnification rights than the Statute permitted or required the
Corporation to provide prior to such amendment.
8.02. Mandatory Indemnification. To the fullest extent
permitted or required by the Statute, the Corporation shall indemnify a
Director or Officer against all Liabilities incurred by or on behalf of
such Director or Officer in connection with a Proceeding in which the
Director or Officer is a Party because he or she is a Director or Officer.
8.03. Procedural Requirements.
(a) A Director or Officer who seeks indemnification under
Section 8.02 shall make a written request therefor to the Corporation.
Subject to Section 8.03(b), within 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 8.05).
(b) No indemnification shall be required to be paid by the
Corporation pursuant to Section 8.02 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 8.03(b),
the Board shall immediately authorize by resolution that an Authority, as
provided in Section 8.04, determine whether the Director's or Officer's
conduct constituted a Breach of Duty and, therefore, whether
indemnification should be denied hereunder.
(d) (i) If the Board does not authorize an Authority to
determine the Director's or Officer's right to indemnification hereunder
within such 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
determined that the Director or Officer did not engage in misconduct
constituting a Breach of Duty and, in the case of subsection (i) above
(but not subsection (ii)), indemnification by the Corporation of the
requested amount of Liabilities shall be paid to the Director or Officer
immediately.
8.04. Determination of Indemnification.
(a) If the Board authorizes an Authority to determine a
Director's or Officer's right to indemnification pursuant to Section 8.03,
then the Director or Officer requesting indemnification shall have the
absolute discretionary authority to select one of the following as such
Authority:
(i) An independent legal counsel; provided, that such
counsel shall be mutually selected by such Director or Officer
and by a majority vote of a Disinterested Quorum or, if a
Disinterested Quorum cannot be obtained, then by a majority vote
of the Board;
(ii) A panel of three arbitrators selected from the panels
of arbitrators of the American Arbitration Association in
Milwaukee, 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 8.05), 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 as to some claims,
issues or matters, but not as to other claims, issues or matters, involved
in the subject Proceeding, the Corporation shall be required to pay (as
set forth above) only the amount of such requested Liabilities as the
Authority shall deem appropriate in light of all of the circumstances of
such Proceeding.
(e) The determination by the Authority that indemnification is
required hereunder shall be binding upon the Corporation regardless of any
prior determination that the Director or Officer engaged in a Breach of
Duty.
(f) All Expenses incurred in the determination process under
this Section 8.04 by either the Corporation or the Director or Officer,
including, without limitation, all Expenses of the selected Authority,
shall be paid by the Corporation.
8.05. Mandatory Allowance of Expenses.
(a) The Corporation shall pay or reimburse, 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 8.05 if it is ultimately determined by
an Authority that he or she is not entitled to be indemnified by
the Corporation for such Expenses pursuant to this Section 8.04.
(b) If the Director or Officer must repay any previously
advanced Expenses pursuant to this Section 8.05, such Director or Officer
shall not be required to pay interest on such amounts.
8.06. Indemnification and Allowance of Expenses of Certain
Others.
(a) The Corporation shall 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 that he or she has been successful on
the merits or otherwise in defense of a Proceeding, for all reasonable
Expenses incurred in the Proceeding if the employee was a Party because he
or she was an employee of the Corporation.
(c) The Board may, in its sole and absolute discretion as it
deems appropriate, pursuant to a majority vote thereof, indemnify (to the
extent not otherwise provided in Section 8.06(b) hereof) against
Liabilities incurred by, and/or provide for the allowance of reasonable
Expenses of, an employee or authorized agent of the Corporation acting
within the scope of his or her duties as such and who is not otherwise a
Director or Officer.
8.07. Insurance. The Corporation may purchase and maintain
insurance on behalf of a Director or Officer or any individual who is or
was an employee or authorized agent of the Corporation against any
Liability asserted against or incurred by such individual in his or her
capacity as such or arising from his or her status as such, regardless of
whether the Corporation is required or permitted to indemnify against any
such Liability under this Article VIII.
8.08. Notice to the Corporation. A Director, Officer or
employee shall promptly notify the Corporation in writing when he or she
has actual knowledge of a Proceeding which may result in a claim of
indemnification against Liabilities or allowance of Expenses hereunder,
but the failure to do so shall not relieve the Corporation of any
liability to the Director, Officer or employee hereunder unless the
Corporation shall have been irreparably prejudiced by such failure (as
determined, in the case of Directors or Officers only, by an Authority
selected pursuant to Section 8.04(a)).
8.09. Severability. If any provision of this Article VIII
shall be deemed invalid or inoperative, or if a court of competent
jurisdiction determines that any of the provisions of this Article VIII
contravene public policy, this Article VIII shall be construed so that the
remaining provisions shall not be affected, but shall remain in full force
and effect, and any such provisions which are invalid or inoperative or
which contravene public policy shall be deemed, without further action or
deed by or on behalf of the Corporation, to be modified, amended and/or
limited, but only to the extent necessary to render the same valid and
enforceable.
8.10. Nonexclusivity of Article VIII. The rights of a
Director, Officer or employee (or any other person) granted under this
Article VIII shall not be deemed exclusive of any other rights to
indemnification against Liabilities or advancement of Expenses which the
Director, Officer or employee (or such other person) may be entitled to
under any written agreement, Board resolution, vote of shareholders of the
Corporation or otherwise, including, without limitation, under the
Statute. Nothing contained in this Article VIII shall be deemed to limit
the Corporation's obligations to indemnify against Liabilities or advance
Expenses to a Director, Officer or employee under the Statute.
8.11. Contractual Nature of Article VIII; Repeal or
Limitation of Rights. This Article VIII shall be deemed to be a contract
between the Corporation and each Director, Officer and employee of the
Corporation and any repeal or other limitation of this Article VIII or any
repeal or limitation of the Statute or any other applicable law shall not
limit any rights of indemnification against Liabilities or allowance of
Expenses then existing or arising out of events, acts or omissions
occurring prior to such repeal or limitation, including, without
limitation, the right to indemnification against Liabilities or allowance
of Expenses for Proceedings commenced after such repeal or limitation to
enforce this Article VIII with regard to acts, omissions or events arising
prior to such repeal or limitation.
ARTICLE IX. AMENDMENTS
9.01. By Shareholders. These by-laws 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.
9.02. By Directors. These by-laws 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 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.
9.03. 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>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED FINANCIAL STATEMENTS OF BANTA CORPORATION AS OF AND FOR
THE SIX MONTHS ENDED JULY 4, 1998 AND IS QUALIFIED IN ITS ENTIRETY
BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JAN-02-1999
<PERIOD-START> JAN-04-1998
<PERIOD-END> JUL-04-1998
<CASH> 5,829
<SECURITIES> 13,219
<RECEIVABLES> 200,796
<ALLOWANCES> 3,561
<INVENTORY> 84,842
<CURRENT-ASSETS> 328,481
<PP&E> 744,128
<DEPRECIATION> 409,600
<TOTAL-ASSETS> 743,562
<CURRENT-LIABILITIES> 163,554
<BONDS> 123,952
0
0
<COMMON> 2,947
<OTHER-SE> 417,014
<TOTAL-LIABILITY-AND-EQUITY> 743,562
<SALES> 646,810
<TOTAL-REVENUES> 646,810
<CGS> 515,871
<TOTAL-COSTS> 515,871
<OTHER-EXPENSES> 84,541
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 5,687
<INCOME-PRETAX> 39,926
<INCOME-TAX> 15,500
<INCOME-CONTINUING> 24,426
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 26,426
<EPS-PRIMARY> 0.82<F1>
<EPS-DILUTED> 0.82
<FN>
<F1>THE EPS UNDER THE "EPS-PRIMARY" TAG REPRESENTS BASIC
EARNINGS PER SHARE
</FN>
</TABLE>
