Attached files
file | filename |
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EX-23 - EX-23 - BADGER METER INC | c56373exv23.htm |
EX-32 - EX-32 - BADGER METER INC | c56373exv32.htm |
EX-21 - EX-21 - BADGER METER INC | c56373exv21.htm |
EX-31.2 - EX-31.2 - BADGER METER INC | c56373exv31w2.htm |
EX-31.1 - EX-31.1 - BADGER METER INC | c56373exv31w1.htm |
10-K - FORM 10-K - BADGER METER INC | c56373e10vk.htm |
Exhibit (3.1)
RESTATED BY-LAWS
OF
BADGER METER, INC.
(As Amended and Restated as of February 12, 2010)
ARTICLE I
SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the shareholders (the
Annual Meeting) shall be held on the second Saturday in April of each year, or at such other time
and date as may be fixed by resolution of the Board of Directors. In fixing a meeting date for any
Annual Meeting, the Board of Directors may consider such factors as it deems relevant within the
good faith exercise of its business judgment. At each Annual Meeting, the shareholders shall elect
that number of directors equal to the number of directors in the class whose term expires at the
time of such meeting. At any such Annual Meeting, only other business properly brought before the
meeting in accordance with Section 12 of Article I of these By-laws may be transacted. If the
election of directors shall not be held on the date designated herein, or fixed as herein provided,
for any Annual Meeting, or any adjournment thereof, the Board of Directors shall cause the election
to be held at a special meeting of shareholders (a Special Meeting) as soon thereafter as is
practicable.
Section 2. Special Meetings.
(a) A Special Meeting may be called only by (i) the Chairman, (ii) the Chief Executive Officer
or (iii) the Board of Directors and shall be called by the Chief Executive Officer upon the demand,
in accordance with this Section 2, 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 ten 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 ten
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 ten days after the
date on which such request is received by the Secretary, the Demand Record Date shall be the 10th
day after the first date on which a valid written request to set a Demand Record Date is received
by the Secretary. To be valid, such written request shall set forth the purpose or purposes for
which the Special Meeting is to be held, shall be signed by one or more shareholders of record (or
their duly authorized proxies or other representatives), shall bear the date of signature of each
such shareholder (or proxy or other representative) and shall set forth all information about each
such shareholder and about the beneficial owner or owners, if any, on whose behalf the request is
made that would be required to be set forth in a shareholders notice described in paragraph (a)
(ii) of Section 12 of Article I 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), 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
Corporations books, of each shareholder signing such demand and the class and number of shares of
the Corporation which are owned of record and beneficially by each such
shareholder, shall be sent to the Secretary by hand or by certified or registered mail, return
receipt requested, and shall be received by the Secretary within seventy 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, the Secretary
receives a written agreement signed by each Soliciting Shareholder (as defined below), pursuant to
which each Soliciting Shareholder, jointly and severally, agrees to pay the Corporations costs of
holding the Special Meeting, including the costs of preparing and mailing proxy materials for the
Corporations own solicitation, provided that if each of the resolutions introduced by any
Soliciting Shareholder at such meeting is adopted, and each of the individuals nominated by or on
behalf of any Soliciting Shareholder for election as a director at such meeting is elected, then
the Soliciting Shareholders shall not be required to pay such costs. For purposes of this
paragraph (d), the following terms shall have the meanings set forth below:
(i) Affiliate of any Person (as defined herein) shall mean any Person controlling,
controlled by or under common control with such first Person.
(ii) Participant shall have the meaning assigned to such term in Rule 14a-11
promulgated under the Securities Exchange Act of 1934, as amended (the Exchange Act).
(iii) Person shall mean any individual, firm, corporation, partnership, joint venture,
association, trust, unincorporated organization or other entity.
(iv) Proxy shall have the meaning assigned to such term in Rule 14a-1 promulgated
under the Exchange Act.
(v) Solicitation shall have the meaning assigned to such term in Rule 14a-11
promulgated under the Exchange Act.
(vi) Soliciting Shareholder shall mean, with respect to any Special Meeting demanded
by a shareholder or shareholders, any of the following Persons:
(A) if the number of shareholders signing the demand or demands of meeting
delivered to the Corporation pursuant to paragraph (c) of this Section 2 is ten
or fewer, each shareholder signing any such demand;
(B) if the number of shareholders signing the demand or demands of meeting
delivered to the Corporation pursuant to paragraph (c) of this Section 2 is
more than ten, 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 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 and/or the written agreement described in this paragraph
(d) in order to prevent the purposes of this Section 2 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 Chief Executive Officer, the Secretary or the
Board of Directors shall have called such meeting. In the case of any Special Meeting called by
the Chief Executive Officer 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 seventy days after the Meeting Record Date (as defined in Section 5 of Article I 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 ten days after the date that
valid written demands for such meeting by the holders of record as of the Demand Record Date of
shares representing at least 10% of all the votes entitled to be cast on each issue proposed to be
considered at the Special Meeting are delivered to the Corporation (the Delivery Date), then such
meeting shall be held at 2:00 P.M. local time on the 100th day after the Delivery Date or, if such
100th day is not a Business Day (as defined below), on the first preceding Business Day. In fixing
a meeting date for any Special Meeting, the Chief Executive Officer, the Secretary or the Board of
Directors may consider such factors as he or it deems relevant within the good faith exercise of
his or its business judgment, including, without limitation, the nature of the action proposed to
be taken, the facts and circumstances surrounding any demand for such meeting, and
any plan of the Board of Directors to call an Annual Meeting or a Special Meeting for the conduct
of related business.
(f) The Corporation may engage regionally or nationally recognized independent inspectors of
elections to act as an agent of the Corporation for the purpose of promptly performing a
ministerial review of the validity of any purported written demand or demands for a Special Meeting
received by the Secretary. For the purpose of permitting the inspectors to perform such review, no
purported demand shall be deemed to have been delivered to the Corporation until the earlier of (i)
five Business Days following receipt by the Secretary of such purported demand and (ii) such date
as the independent inspectors certify to the Corporation that the valid demands received by the
Secretary represent at least 10% of all the votes entitled to be cast on each issue proposed to be
considered at the Special Meeting. Nothing contained in this paragraph (f) shall in any way be
construed to suggest or imply that the Board of Directors or any shareholder shall not be entitled
to contest the validity of any demand, whether during or after such five 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.
Section 3. Place of Meeting. The Chairman, the Chief Executive Officer, the
Board of Directors or the Secretary may designate any place, either within or without the State of
Wisconsin, as the place of meeting for an Annual Meeting or Special Meeting. If no designation is
made, the place of meeting shall be the principal office of the Corporation. Any meeting may be
adjourned to reconvene at any place designated by vote of the Board of Directors or by the Chief
Executive Officer or the Secretary.
Section 4. Notice of Meeting. Written notice stating the date, time and
place of any meeting of shareholders shall be delivered not less than ten days nor more than sixty
days before the date of the meeting (unless a different time period is provided by the Wisconsin
Business Corporation Law (the WBCL) or the Articles of Incorporation), either personally or by
mail, by or at the direction of the Chairman, the President or the Secretary, to each shareholder
of record entitled to vote at such meeting and to such other persons as required by the WBCL. In
the event of any Demand Special Meeting, such notice of meeting shall be sent not more than thirty
days after the Delivery Date. If mailed, notice pursuant to this Section 4 shall be deemed to be
effective when deposited in the United States mail, addressed to the 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 WBCL or the Articles of Incorporation, 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 of
Article I of these By-laws and (ii) shall contain all of the information required in the notice
received by the Corporation in accordance with Section 12(b) of Article I 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.
Section 5. Fixing of Record Date. The Board of Directors may fix in advance
a date not less than ten days and not more than seventy days prior to the date of an 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 thirty 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 WBCL for a court-ordered adjournment, a
determination of shareholders entitled to notice of and to vote at an 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
seventy 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 Corporations 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.
Section 6. Shareholders List for Meetings. 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 Corporations 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 WBCL, 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 6. 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.
Section 7. 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 7. Except as otherwise provided in the Articles
of Incorporation or the WBCL, 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 or the WBCL requires a greater number of
affirmative votes. Unless otherwise provided in the Articles of Incorporation, each director to be
elected shall be elected by a plurality of the votes cast by the shares entitled to vote in the
election of directors at an Annual Meeting or Special Meeting at which a quorum is present.
(b) The Board of Directors acting by resolution may postpone and reschedule any previously
scheduled Annual Meeting or Special Meeting; provided, however, that a Demand
Special Meeting shall not be postponed beyond the 100th day following the Delivery Date. Any
Annual Meeting or Special Meeting may be adjourned from time to time, whether or not there is a
quorum, (i) at any time, upon a resolution by 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 President or pursuant to a resolution of the Board of Directors.
No notice of the time and place of adjourned meetings need be given except as required by the WBCL.
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.
Section 8. Voting of Shares. Each outstanding share shall be entitled to one
vote upon each matter submitted to a vote at an Annual Meeting or Special Meeting, except to the
extent that the voting rights of the shares of any class or classes are enlarged, limited or denied
by the WBCL or the Articles of Incorporation.
Section 9. Proxies. At any Annual Meeting or Special Meeting, a shareholder
may vote his or her shares in person or by proxy. A shareholder may appoint a proxy to vote or
otherwise act for the shareholder by signing an appointment form, either personally or by his or
her attorney-in-fact. An appointment of a proxy is effective when received by the Secretary or
other officer or agent of the Corporation authorized to tabulate votes. An appointment is valid
for eleven months from the date of its signing unless a different period is expressly provided in
the appointment form. Unless otherwise provided, a proxy may be revoked at any time before it is
voted, either by written notice filed with the Secretary or the acting secretary of the meeting or
by oral notice given by the shareholder to the presiding officer during the meeting. The presence
of a shareholder who has filed his or her appointment of proxy shall not itself constitute a
revocation. The Board of Directors shall have the power and authority to make rules establishing
presumptions as to the validity and sufficiently of proxies.
Section 10. 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
signatorys 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 signatorys
authority to sign for the shareholder.
Section 11. Waiver of Notice. A shareholder may waive any notice required by
the WBCL, 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 WBCL (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 shareholders 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.
Section 12. 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 Corporations 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 12.
(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 12, the
shareholder must have given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a shareholders notice shall be received by the Secretary of the
Corporation at the principal offices of the Corporation not less than sixty days nor more
than ninety days prior to the second Saturday in the month of April; provided,
however, that in the event that the date of the Annual Meeting is advanced by more
than thirty days or delayed by more than sixty days from the second Saturday 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 shareholders
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 corporations 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
shareholders and beneficial owners 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 12 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 seventy days prior to the second Saturday in the month of
April, a shareholders notice required by this Section 12 shall also be considered timely,
but only with respect to nominees for any new positions created by such increase, if it shall
be received by the Secretary at the principal offices of the Corporation not later than the
close of business on the 10th day following the day on which such public announcement is
first made by the Corporation.
(b) Special Meetings. Only such business shall be conducted at a Special Meeting as
shall have been described in the notice of meeting sent to shareholders pursuant to Section 4 of
Article I 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 12.
Any shareholder desiring to nominate persons for election to the Board of Directors at such a
Special Meeting shall cause a written notice to be received by the Secretary of the Corporation at
the principal offices of the Corporation not earlier than ninety 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 Corporations 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 12 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 12. 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 12
and, if any proposed nomination or business is not in compliance with this Section
12, to declare that such defective proposal shall be disregarded.
(ii) For purposes of this Section 12, 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 12, 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 12. Nothing in
this Section 12 shall be deemed to limit the Corporations obligation to include shareholder
proposals in its proxy statement if such inclusion is required by Rule 14a-8 under the
Exchange Act.
ARTICLE II
BOARD OF DIRECTORS
BOARD OF DIRECTORS
Section 1. General Powers and Number. All corporate powers of the
Corporation shall be exercised by or under the authority of, and the business and affairs of the
Corporation managed under, the direction of its Board of Directors, which shall consist of not less
than six (6) nor more than ten (10) directors, the exact number of which shall be fixed from time
to time by resolution of the Board of Directors. The Board of Directors shall elect one of its
members as Chairman, who, when present, shall preside at all meetings of the shareholders and Board
of Directors.
Section 2. Tenure and Qualifications. Each director shall hold office until
the annual meeting of shareholders at which his term expires and until his successor shall have
been elected, or until his prior death, resignation or removal. A director shall not be eligible to
stand for re-election at any annual meeting of shareholders following his 72nd birthday.
A director may resign at any time by delivering written notice which complies with the Wisconsin
Business Corporation Law to the Board of Directors, to the Chairman of the Board, if any, or to the
Corporation. A directors resignation is effective when such notice is delivered unless the notice
specifies a later date. Directors need not be residents of the State of Wisconsin or shareholders
of the Corporation.
Section 3. Regular Meetings. A regular meeting of the Board of Directors
shall be held without other notice than this By-law immediately after, and at the same place as,
the annual meeting of shareholders, and each adjourned session thereof. 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.
Section 4. Special Meetings. Special meetings of the Board of Directors may
be called by or at the request of the Chairman, the Chief Executive Officer, Secretary or any two
directors. The person or persons calling any special meeting of the Board of Directors may fix any
place, either within or without the State of Wisconsin, as the place for holding any special
meeting of the Board of Directors called by them, and if no other place is fixed, the place of
meeting shall be the principal business office of the Corporation in the State of Wisconsin.
Section 5. Notice; waiver. Notice of each meeting of the Board of Directors
(unless otherwise provided in or pursuant to Section 4, Article II) shall be given by written
notice delivered personally or given by telegram, teletype, facsimile or other form of wire or
wireless communication not less than twenty-four (24) hours prior to the meeting or mailed or
delivered by private carrier not less than forty-eight (48) hours prior to the meeting to each
director at his business address or at such other address as such director shall have designated in
writing filed with the Secretary. If mailed or delivered by a private carrier, such notice shall
be deemed to be delivered when deposited in the United States mail or delivered to the private
carrier so addressed, with postage or delivery cost thereon prepaid. If notice be given by
telegram, such notice shall be deemed to be delivered when the telegram is delivered to the
telegraph company. If notice be given by teletype, facsimile or other form of wire or wireless
communication, such notice shall be deemed to be delivered when evidence of its transmittal is
received. Whenever any notice whatever is required to be given to any director of the Corporation
under the Articles of Incorporation or By-laws or any provision of 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 attendance of a
director at a meeting shall constitute a waiver of notice of such meeting, except where a director
attends a meeting and objects thereat to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the notice or waiver of
notice of such meeting.
Section 6. Quorum. A majority of the directors shall constitute a quorum for
the transaction of business; and, except as otherwise provided by law or by the Articles of
Incorporation or these By-laws, a majority of the votes cast at any meeting of the Board of
Directors at which a quorum is present shall be decisive of any action. A majority of the
directors present at a meeting, though less than quorum, may adjourn the meeting from time to time
without further notice.
Section 7. Vacancies. Any vacancy occurring in the Board of Directors,
including a vacancy created by an increase in the number of directors, may be filled until the next
succeeding annual election by the affirmative vote of a majority of the directors then in office,
though less than a quorum of the Board of Directors; provided, that in case of a vacancy created by
the removal of a director by vote of the shareholders, the shareholders shall have the right to
fill such vacancy at the same meeting or any adjournment thereof.
Section 8. 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 and to their estates, families,
dependents or beneficiaries on account of prior services rendered by such directors, officers and
employees to the Corporation.
Section 9. 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 his dissent shall be entered in the minutes of the meeting or unless he shall file his
written dissent to such action with the person acting as the secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail to the Secretary of the
Corporation immediately after the adjournment of the meeting. Such right to dissent shall not
apply to a director who voted in favor of such action.
Section 10. Committees. The Board of Directors by resolution adopted by the
affirmative vote of a majority of the number of directors set forth in Section 1 of this Article II
may designate one or more committees, each committee to consist of three or more directors elected
by the Board of Directors, which shall have and may exercise, when the Board of Directors is not in
session, the powers of the Board of Directors in the management of the business and affairs of the
Corporation, in the committees designated area of responsibility, except action in respect to
dividends to shareholders, election of the principal officers or the filling of vacancies on the
Board of Directors or committees created pursuant to this section, with respect to the approval or
proposal of actions that the law requires to be approved by the shareholders, amendment of the
Articles of Incorporation, the adoption, amendment or repeal of the by-laws, the approval of a
plan of merger not requiring shareholder approval, the authorization or approval of the
re-acquisition of shares other than according to a method prescribed by the Board of Directors, and
the authorization for approval of the issuance or sale or contract for sale of shares, or the
determination of the designation and relative rights, preferences and limitations of a class or
series of shares, unless authorized to do so by the Board of Directors within prescribed limits.
The Board of Directors may elect one or more of its members as alternate members of any such
committee who may take the place of any absent member or members at any meeting of such committee,
upon request by the Chairman or upon request by the chairman of such meeting. Each such committee
shall fix its own rules governing the conduct of its activities and shall make such reports to the
Board of Directors of its activities as the Board of Directors may request.
Section 11. Unanimous Consent Without Meeting. Any action required or
permitted by the Articles of Incorporation or By-laws or any provision of law to be taken by the
Board of Directors at a meeting or by resolution may be taken without a meeting if a consent in
writing, setting forth the action so taken, shall be signed by all of the directors then in office.
Section 12. Telephonic Meetings. Notwithstanding any place set forth in the
notice of the meeting or these By-laws, members of the Board of Directors may participate in
regular or special meetings of the Board of Directors and all Committees of the Board of Directors
by or through the use of any means of communication by which all directors participating may
simultaneously hear each other, such as by conference telephone; provided, however, that the
Chairman of the Board or the chairman of the respective Committee and the Board or other person or
persons calling a meeting may determine that the directors cannot participate by such means, in
which case the notice of the meeting, or other notice to directors given prior to the meeting,
shall state that each directors physical presence shall be required. If
a meeting is conducted
through the use of such means of communication, then at the commencement of such meeting all
participating directors shall be informed that a meeting is taking place at which official business
may be transacted. A director participating in a meeting by such means shall be deemed present in
person at such meeting.
ARTICLE III
OFFICERS
OFFICERS
Section 1. General Officers. The general officers of the Corporation shall
be the Chief Executive Officer, the President, one or more Vice Presidents, a Secretary, a
Treasurer, a Controller, and one or more Assistant Secretaries and one or more Assistant
Treasurers, each of whom shall be elected annually by the Board of Directors and shall hold office
until his or her successor shall have been duly elected and qualified. The Chief Executive Officer
of the Corporation shall exercise general supervision of the business and affairs of the
Corporation subject to the directives of the Board of Directors. Further, each general officer
shall have such powers and duties as generally pertain to his or her respective office; provided,
that such powers and duties may from time to time be modified, enlarged, restricted or augmented by
the Board of Directors.
Section 2. Additional Officers. The Board of Directors may appoint such
additional corporate officers as it may deem necessary, each of whom shall have such powers and
duties as from time to time may be conferred by the Board of Directors, and shall serve for such
terms as the Board may fix.
Section 3. Removal of Officers. Any officer or agent elected or appointed by
the Board of Directors may be removed by the Board of Directors whenever in its judgment, the best
interests of the Corporation will be served thereby, but such removal shall be without prejudice to
the contract rights, if any, of the person so removed.
Section 4. 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. The resignation of an officer by the delivery of written notice
to the Chief Executive Officer or Secretary of the Corporation is effective upon delivery of the
notice, unless the notice specifies a later date and the Corporation accepts the later date.
ARTICLE IV
SPECIAL CORPORATE ACTS
SPECIAL CORPORATE ACTS
Section 1. 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 this Corporation if he be present, or
in his absence by the President or any Vice President of this Corporation who may be present, and
(b) whenever, in the judgment of the Chairman, or in his absence, of the President or any Vice
President, it is desirable for this Corporation to execute a proxy or give a shareholders 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, or 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 share
or shares of stock issued by such other corporation and owned by this Corporation the same as such
share or shares might be voted by this Corporation.
Section 2. 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 or 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.
ARTICLE V
CERTIFICATES FOR SHARES AND THEIR TRANSFER
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 1. Certificates for Shares; Shares Without Certificates.
Certificates representing shares of the Corporation shall be in such form as shall be determined by
the Board of Directors. Such certificates shall be signed by the Chairman or the President or a
Vice President and by the Secretary or an Assistant Secretary. All certificates for shares shall
be consecutively numbered or otherwise identified. The name and address of the person to whom the
shares represented thereby are issued, with the number of shares and date of issue, shall be
entered on the stock transfer books of the Corporation. All certificates surrendered to the
Corporation for transfer shall be canceled and no new certificate shall be issued until the former
certificate for a like number of shares shall have been surrendered and canceled, except as
provided in Section 6 of this Article V. Shares of the Corporation may also be issued, without
certificates to the full extent such issuance is allowed by the Wisconsin Business Corporation Law
and the listing standards of the New York Stock Exchange (or any applicable stock exchange on which
the shares are listed). To the extent required by the Wisconsin Business Corporation Law, within a
reasonable time after the issuance or transfer of shares without a certificate, the Corporation
shall send to the registered owner thereof a written notice that shall set forth (a) the name of
the Corporation; (b) that the Corporation is organized under the laws of the State of Wisconsin;
(c) the name of the shareholder; (d) the number and class (and the designation of the series, if
any) of the shares represented; (e) if applicable, a summary of the designations, relative rights,
preferences and limitations applicable to each class, and, if applicable, the variations in rights,
preferences and limitations determined for each series and the authority of the Board of Directors
to determine variations for future series (or a conspicuous statement that upon written request the
Corporation will furnish the shareholder with this information without charge); and (f) if
applicable, any restrictions on the transfer or registration of such shares of stock imposed by the
Articles of Incorporation of the Corporation, as amended from time to time, these By-laws, any
agreement among shareholders or any agreement between shareholders and the Corporation.
Section 2. Facsimile Signatures and Seal. The seal of the corporation on any
certificates for shares may be a facsimile. The signatures of the Chairman or President or 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.
Section 3. 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.
Section 4. Transfer of Shares. Prior to due presentment of 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 shares are 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, or with respect to uncertificated shares, proper transfer
instructions are received, 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 or transfer instructions are genuine and effective and in compliance with such other
regulations as may be prescribed under the authority of the Board of Directors.
Section 5. 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.
Section 6. Lost, Destroyed or Stolen Certificates. Where the owner claims
that his certificate for shares has been lost, destroyed or wrongfully taken, then the Corporation
may issue, in its discretion, a new certificate or certificates of stock or uncertificated shares
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) satisfied such other reasonable requirements as the Board of Directors may
prescribe.
Section 7. Consideration for Shares. The shares of the Corporation may be
issued for such consideration as shall be fixed from time to time by the Board of Directors,
provided that any shares having a par value shall not be issued for a consideration less than the
par value thereof. The consideration to be paid for shares may be paid in whole or in part, in
money, in other property, tangible or intangible, or in labor or services actually performed for
the Corporation. When payment of the consideration for which shares are to be issued shall have
been received by the Corporation, such shares
shall be deemed to be fully paid and nonassessable by the Corporation. No share shall be issued
until such share is fully paid.
Section 8. Stock Regulations. The Board of Directors shall have the power
and authority to make all such further rules and regulations not inconsistent with the statutes of
the State of Wisconsin as it may deem expedient concerning the issue, transfer and registration of
certificates representing shares of the Corporation.
ARTICLE VI
CORPORATE SEAL
CORPORATE SEAL
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 VII
AMENDMENTS
AMENDMENTS
Section 1. By Shareholders. These By-laws may be altered, amended, repealed,
augmented and new By-laws may be adopted by the shareholders by affirmative vote of not less than a
majority of the votes represented by the shares present or represented at any annual or special
meeting of the shareholders at which a quorum is in attendance.
Section 2. By Directors. These By-laws may also be altered, amended,
repealed, augmented 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;
but no By-law adopted by the shareholders shall be amended or repealed by the Board of Directors if
the By-law so adopted so provides.
Section 3. 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.
ARTICLE VIII
INDEMNIFICATION
INDEMNIFICATION
Section 1.01. Certain Definitions. All capitalized terms used in this
Article VIII and not otherwise hereinafter defined in this Section 1.01 shall have the meaning set
forth in Section 180.0850 of the Statute (as hereinafter defined). 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 1.04 of this Article.
(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 1.04 of this Article, 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 capitalized terms used herein, shall mean this Corporation,
including, without limitation, any successor corporation or entity to the Corporation by way of
merger, consolidation or acquisition of all or substantially all of the capital stock or assets of
this Corporation.
(f) Director or Officer shall have the meaning set forth in the Statute; provided, that, for
purposes of this Article, 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, the term Party shall also include any Director, 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, Proceeding shall include all Proceedings (i) brought under (in whole or in part)
the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, their
respective state counterparts, and/or any rule or regulation promulgated under any of the
foregoing; (ii) brought before an Authority or otherwise to enforce rights hereunder; (iii) any
appeal from a Proceeding; and (iv) any Proceeding in which the Director or Officer is a plaintiff
or petitioner because he or she is a Director or Officer, provided, however, that 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, including any amendments thereto,
but, in the case of any such amendment, only to the extent such amendment permits or requires the
Corporation to provide broader indemnification rights than the Statute permitted or required the
Corporation to provide prior to such amendment.
Section 1.02. 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.
Section 1.03. Procedural Requirements.
(a) A Director or Officer who seeks indemnification under Section 1.02 of this Article shall
make a written request therefor to the Corporation. Subject to Section 1.03 (b) of this Article,
within sixty days of the Corporations 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 1.05 of this Article).
(b) No indemnification shall be required to be paid by the Corporation pursuant to Section
1.03 (a) of this Article if, within such sixty-day period: (i) a Disinterested Quorum, by a
majority vote thereof, determines that the Director or Officer requesting indemnification engaged
in misconduct constituting a Breach of Duty; or (ii) a Disinterested Quorum cannot be obtained.
(c) In either case of nonpayment pursuant to Section 1.03 (b) of this Article, the Board shall immediately
authorize by resolution that an Authority, as provided in Section 1.04 of this Article,
determine whether the Directors or Officers 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 Directors or Officers
right to indemnification hereunder within such sixty-day period and/or (ii) if indemnification of
the requested amount of Liabilities is paid by the Corporation, then it shall be conclusively
presumed for all purposes that a Disinterested Quorum has 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 Officer or Director immediately.
Section 1.04. Determination of Indemnification.
(a) When the Board authorized an Authority to determine a Directors or Officers right to
indemnification pursuant to Section 1.03 of this Article, 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
Associations 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 Directors or Officers conduct did not constitute a Breach of Duty and that
indemnification against the requested amount of Liabilities is required. The burden of rebutting
such a presumption by clear and convincing evidence shall be on the Corporation or such other party
asserting that such indemnification should not be allowed.
(c) The Authority shall make its determination within sixty days of being selected and shall
submit a written opinion of its conclusion simultaneously to both the Corporation and the Director
or Officer.
(d) If the Authority determines that indemnification is required hereunder, the Corporation
shall pay the entire requested amount of Liabilities (net of any Expenses previously advanced
pursuant to Section 1.05 of this Article), including interest thereon at a reasonable rate, as
determined by the Authority, within ten days of receipt of the Authoritys 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 1.04 by either the
Corporation or the Director or Officer, including, without limitation, all Expenses of the selected
Authority, shall be paid by the Corporation.
Section 1.05. Mandatory Allowance of Expenses.
(a) The Corporation shall pay or reimburse, within ten days after the receipt of the
Directors or Officers 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 1.05 if it is ultimately determined by an
Authority that he or she is not entitled to be indemnified by the Corporation for such Expenses
pursuant to Section 1.04 of this Article.
(b) If the Director or Officer must repay any previously advanced Expenses pursuant to this
Section 1.05, such
Director or Officer shall not be required to pay interest on such amounts.
Section 1.06. 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) Except as hereinafter provided, the Corporation shall indemnify each employee of the
Corporation or an Affiliate of the Corporation acting within the scope of his or her duties as
such, against all Liabilities, and shall advance Reasonable Expenses, incurred by or on behalf of
such employee in connection with a Proceeding in which he or she is a Party by virtue of being an
employee of the Corporation or an Affiliate of the Corporation, to the same extent and in the same
manner as a Director or Officer hereunder. The foregoing provision shall not apply, and the
Corporation shall not indemnify any employee, with respect to any Liability to the extent covered
by insurance maintained by or on behalf of such employee (other than insurance maintained by the
Corporation or an Affiliate of the Corporation).
(c) The Board may, in its sole and absolute discretion as it deems appropriate, pursuant to a
majority vote thereof, indemnify against Liabilities incurred by, and/or provide for the allowance
of reasonable Expenses of, an 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.
Section 1.07. Insurance. The Corporation may purchase and maintain insurance
on behalf of a Director, Officer and/or any individual who is or was an authorized employee or
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.
Section 1.08. 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 or 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 by an Authority).
Section 1.09. Report to Shareholders. In the event that the Corporation
indemnifies or advances expenses to a Director or Officer in connection with a proceeding brought
in the right of the Corporation, the Corporation shall report the indemnification or advance in
writing to shareholders with or before the notice of the next meeting of shareholders. The report
shall be delivered to shareholders who are entitled to receive notice of the next meeting of
shareholders.
Section 1.10. Severability. If any provision of this Article shall be deemed
invalid or inoperative, or if a court of competent jurisdiction determines that any of the
provisions of this Article contravene public policy, this Article 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.
Section 1.11. Nonexclusivity of this Article. The rights of a Director,
Officer or employee (or any other person) granted under this Article 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 shall be deemed to limit
the Corporations obligations to indemnify a Director, Officer or employee under the Statute.
Section 1.12. Contractual Nature of this Article; Repeal or Limitation of
Rights. This Article shall be deemed to be a contract between the Corporation and each
Director, Officer and employee and any repeal or other limitation of this Article 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 of indemnification against Liabilities or
allowance of Expenses for Proceedings commenced after such repeal or limitation to enforce this
Article with regard to acts, omissions or events arising prior to such repeal or limitation.
Section 1.13. Subrogation Rights. Notwithstanding any provision to the
contrary set forth herein, the Corporations obligations hereunder are not intended to constitute,
and shall not constitute, a waiver of any right to subrogation which the Corporation may have
against any person or entity.