1
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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:
JUNE 30, 2001
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: 1-10686
MANPOWER INC.
(Exact name of registrant as specified in its charter)
WISCONSIN 39-1672779
(State or other jurisdiction (IRS Employer
of incorporation) Identification No.)
5301 N. IRONWOOD ROAD
MILWAUKEE, WISCONSIN 53217
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (414) 961-1000
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
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Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
SHARES OUTSTANDING
CLASS AT JUNE 30, 2001
------- ------------------------
Common Stock, $.01 par value 75,919,319
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MANPOWER INC. AND SUBSIDIARIES
INDEX
Page
Number
------
PART I FINANCIAL INFORMATION
Item 1 Financial Statements (unaudited)
Consolidated Balance Sheets ...........................................................3 - 4
Consolidated Statements of Operations......................................................5
Consolidated Statements of Cash Flows......................................................6
Notes to Consolidated Financial Statements............................................7 - 10
Item 2 Management's Discussion and Analysis of
Financial Condition and Results of Operations............................................11 - 15
Item 3 Quantitative and Qualitative Disclosures About Market Risk....................................15
PART II OTHER INFORMATION AND SIGNATURES
Item 1 Legal Proceedings..............................................................................16
Item 2 Changes in Securities and Use of Proceeds......................................................16
Item 4 Submission of Matters to a Vote of Security Holders............................................16
Item 6 Exhibits and Reports on Form 8-K...............................................................17
SIGNATURES.......................................................................................................18
3
PART I - FINANCIAL INFORMATION
Item 1 - Financial Statements
MANPOWER INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN MILLIONS)
ASSETS
JUNE 30, DECEMBER 31,
2001 2000
------------------ -------------------
(Unaudited)
CURRENT ASSETS:
Cash and cash equivalents $ 169.7 $ 181.7
Accounts receivable, less allowance for
doubtful accounts of $52.7 and $55.3, respectively 1,969.2 2,094.4
Prepaid expenses and other assets 64.1 51.8
Future income tax benefits 70.2 68.8
--------------- --------------
Total current assets 2,273.2 2,396.7
OTHER ASSETS:
Intangible assets, less accumulated amortization of
$32.9 and $27.2, respectively 280.3 247.6
Investments in licensees 43.1 41.8
Other assets 189.9 163.9
--------------- --------------
Total other assets 513.3 453.3
PROPERTY AND EQUIPMENT:
Land, buildings, leasehold improvements and equipment 437.5 440.9
Less: accumulated depreciation and amortization 253.1 249.3
--------------- --------------
Net property and equipment 184.4 191.6
--------------- --------------
Total assets $ 2,970.9 $ 3,041.6
=============== ==============
The accompanying notes to consolidated financial statements
are an integral part of these balance sheets.
4
MANPOWER INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN MILLIONS, EXCEPT SHARE DATA)
LIABILITIES AND SHAREHOLDERS' EQUITY
JUNE 30, DECEMBER 31,
2001 2000
------------------ ------------------
(Unaudited)
CURRENT LIABILITIES:
Accounts payable $ 477.3 $ 453.1
Employee compensation payable 78.4 81.2
Accrued liabilities 214.5 269.2
Accrued payroll taxes and insurance 305.1 341.8
Value added taxes payable 276.7 311.0
Short-term borrowings and current maturities of long-term debt 38.4 65.9
----------- -----------
Total current liabilities 1,390.4 1,522.2
OTHER LIABILITIES:
Long-term debt 545.2 491.6
Other long-term liabilities 291.2 287.4
----------- -----------
Total other liabilities 836.4 779.0
SHAREHOLDERS' EQUITY:
Preferred stock, $.01 par value, authorized 25,000,000 shares,
none issued - -
Common stock, $.01 par value, authorized 125,000,000 shares,
issued 84,964,519 and 84,717,834 shares, respectively .8 .8
Capital in excess of par value 1,638.8 1,631.4
Accumulated deficit (443.0) (496.9)
Accumulated other comprehensive income (loss) (199.4) (145.1)
Treasury stock at cost, 9,045,200 and 8,945,200 shares, respectively (253.1) (249.8)
----------- -----------
Total shareholders' equity 744.1 740.4
----------- -----------
Total liabilities and shareholders' equity $ 2,970.9 $ 3,041.6
=========== ===========
The accompanying notes to consolidated financial statements
are an integral part of these balance sheets.
5
MANPOWER INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)
(IN MILLIONS, EXCEPT PER SHARE DATA)
3 MONTHS ENDED 6 MONTHS ENDED
JUNE 30, JUNE 30,
-------------------------- --------------------------
2001 2000 2001 2000
------------- ------------ ------------- ------------
Revenues from services $ 2,620.1 $ 2,714.1 $ 5,272.0 $ 5,282.4
Cost of services 2,131.0 2,236.3 4,299.0 4,358.6
----------- ---------- ---------- ----------
Gross profit 489.1 477.8 973.0 923.8
Selling and administrative expenses 426.4 408.1 858.2 803.6
----------- ---------- ---------- ----------
Operating profit 62.7 69.7 114.8 120.2
Interest and other expense 8.6 10.7 18.8 21.5
----------- ---------- ---------- ----------
Earnings before income taxes 54.1 59.0 96.0 98.7
Provision for income taxes 19.5 21.0 34.5 35.1
----------- ---------- ---------- ----------
Net earnings $ 34.6 $ 38.0 $ 61.5 $ 63.6
=========== ========== ========== ==========
Net earnings per share $ .46 $ .50 $ .81 $ .84
=========== ========== ========== ==========
Net earnings per share - diluted $ .45 $ .49 $ .80 $ .82
=========== ========== ========== ==========
Weighted average common shares 75.8 76.0 75.8 76.0
=========== ========== ========== ==========
Weighted average common shares - diluted 76.9 77.1 76.9 77.2
============ =========== =========== ===========
The accompanying notes to consolidated financial statements
are an integral part of these statements.
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SUPPLEMENTAL SYSTEMWIDE INFORMATION (UNAUDITED)
(IN MILLIONS)
3 MONTHS ENDED 6 MONTHS ENDED
JUNE 30, JUNE 30,
-------------------------- -------------------------
2001 2000 2001 2000
------------- ------------ ------------ ------------
Systemwide Sales $ 2,944.1 $ 3,121.9 $ 5,955.2 $ 6,097.4
=========== ========== ========== ==========
Systemwide information represents the total of Company-owned branches and
franchises.
6
MANPOWER INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
(IN MILLIONS)
6 MONTHS ENDED
JUNE 30,
--------------------------
2001 2000
------------- -------------
CASH FLOWS FROM OPERATING ACTIVITIES:
Net earnings $ 61.5 $ 63.6
Adjustments to reconcile net earnings to net cash
provided by operating activities:
Depreciation and amortization 37.1 35.4
Deferred income taxes (4.2) (3.9)
Provision for doubtful accounts 10.1 12.3
Changes in operating assets and liabilities:
Amounts advanced under the Receivables Facility (80.0) (100.0)
Accounts receivable 28.3 (183.5)
Other assets (40.8) (3.5)
Other liabilities 50.1 154.7
--------- ---------
Cash provided (used) by operating activities 62.1 (24.9)
--------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (43.9) (33.8)
Acquisitions of businesses, net of cash acquired (96.1) (157.5)
Proceeds from the sale of property and equipment 3.2 3.0
--------- ---------
Cash used by investing activities (136.8) (188.3)
--------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net change in short-term borrowings (25.0) (5.8)
Proceeds from long-term debt 220.4 273.0
Repayment of long-term debt (116.2) (105.9)
Proceeds from stock option and purchase plans 7.4 6.6
Repurchase of common stock (3.3) (14.5)
Dividends paid (7.6) (7.6)
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Cash provided by financing activities 75.7 145.8
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Effect of exchange rate changes on cash (13.0) (29.8)
--------- ---------
Net change in cash and cash equivalents (12.0) (97.2)
Cash and cash equivalents, beginning of period 181.7 241.7
--------- ---------
Cash and cash equivalents, end of period $ 169.7 $ 144.5
========= =========
SUPPLEMENTAL CASH FLOW INFORMATION:
Interest paid $ 16.8 $ 7.8
========= ===========
Income taxes paid $ 71.2 $ 28.6
========= ===========
The accompanying notes to consolidated financial statements
are an integral part of these statements.
7
MANPOWER INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
FOR THE SIX MONTHS ENDED JUNE 30, 2001 AND 2000
(IN MILLIONS, EXCEPT PER SHARE DATA)
(1) Basis of Presentation
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 the rules and regulations of the
Securities and Exchange Commission, although the Company believes that the
disclosures are adequate to make the information presented not misleading. These
consolidated financial statements should be read in conjunction with the
consolidated financial statements included in the Company's 2000 Annual Report
to Shareholders.
The information furnished reflects all adjustments that, in the opinion of
management, are necessary for a fair statement of the results of operations for
the periods presented. Such adjustments are of a normal recurring nature.
Certain amounts in the 2000 consolidated financial statements have been
reclassified to be consistent with the current year presentation.
(2) New Accounting Pronouncements
During June 2001, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standard ("SFAS") No. 141, "Business
Combinations," which requires all business combinations completed subsequent to
June 30, 2001 to be accounted for using the purchase method. Although the
purchase method generally remains unchanged, this standard also requires that
acquired intangible assets should be separately recognized if the benefit of the
intangible assets are obtained through contractual or other legal rights, or if
the intangible assets can be sold, transferred, licensed, rented or exchanged,
regardless of the acquirer's intent to do so. Intangible assets separately
identified must be amortized over their estimated economic life. Goodwill or
identifiable intangible assets with an indefinite life resulting from such
business combinations are no longer required to be amortized.
This statement is effective for the Company beginning July 1, 2001. The Company
has accounted for all previous acquisitions under the purchase method and the
related excess of purchase price over net assets was mainly goodwill, therefore,
the adoption of this statement will not have a material impact on the
consolidated financial statements.
During June 2001, the FASB issued SFAS No. 142, "Goodwill and Other Intangible
Assets," which prohibits the amortization of goodwill over an estimated useful
life. Rather, goodwill will be subject to impairment reviews by applying a
fair-value-based test at the reporting unit level, which generally represents
operations one level below the segments reported by the Company. An impairment
loss will be recorded for any goodwill that is determined to be impaired.
This statement is effective for the Company on January 1, 2002. Upon adoption,
the Company will perform an impairment test on all existing goodwill, which will
be updated at least annually. The Company has not yet determined the extent of
any impairment losses on its existing goodwill, however, any such losses are not
expected to be material to the consolidated financial statements.
(3) Acquisitions
8
During July 2001, the Company acquired Jefferson Wells International, Inc.
("Jefferson Wells"), a professional services provider of internal audit,
accounting, technology and tax services, for approximately $174.0, including
assumed debt. The acquisition of Jefferson Wells was financed through the
Company's existing credit facilities. Jefferson Wells operates a network of
offices throughout the United States and Canada. The substantial majority of the
purchase price is expected to be allocated to goodwill and other identifiable
intangible assets.
During the first six months of 2001, the Company also acquired and invested in
several companies throughout the world. The total consideration paid for such
transactions was $96.1 as of June 30, 2001, the majority of which was recorded
as goodwill. This consideration includes the final payment of $30.0 in deferred
consideration related to the Company's January 2000 acquisition of Elan Group
Limited.
(4) Income Taxes
The Company provided for income taxes at 36.0%, which is equal to the estimated
annual effective tax rate based on the currently available information. This
rate is higher than the U.S. Federal statutory rate due to cost of foreign
repatriations, foreign tax rate differences and U.S. state income taxes.
(5) Earnings Per Share
The calculations of net earnings per share and net earnings per share - diluted
are as follows:
3 MONTHS ENDED 6 MONTHS ENDED
JUNE 30, JUNE 30,
----------------------- -----------------------
2001 2000 2001 2000
----------- ----------- ----------- -----------
Net earnings per share:
Net earnings available to common shareholders $ 34.6 $ 38.0 $ 61.5 $ 63.6
Weighted average common shares outstanding 75.8 76.0 75.8 76.0
-------- -------- -------- --------
$ .46 $ .50 $ .81 $ .84
======== ======== ======== ========
Net earnings per share - diluted:
Net earnings available to common shareholders $ 34.6 $ 38.0 $ 61.5 $ 63.6
Weighted average common shares outstanding 75.8 76.0 75.8 76.0
Dilutive effect of stock options 1.1 1.1 1.1 1.2
-------- -------- -------- --------
76.9 77.1 76.9 77.2
-------- -------- -------- --------
$ .45 $ .49 $ .80 $ .82
======== ======== ======== ========
(6) Shareholders' Equity
Comprehensive income (loss) consists of the following:
3 MONTHS ENDED 6 MONTHS ENDED
JUNE 30, JUNE 30,
----------------------- -----------------------
2001 2000 2001 2000
----------- ----------- ----------- -----------
Net earnings $ 34.6 $ 38.0 $ 61.5 $ 63.6
Other comprehensive income (loss) - net of tax:
Foreign currency translation adjustments (12.9) (19.0) (50.5) (44.7)
Unrealized gain (loss) on available for sale securities 1.3 - (.7) -
Unrealized gain (loss) on derivative financial instruments 2.2 - (3.1) -
-------- -------- -------- --------
Comprehensive income (loss) $ 25.2 $ 19.0 $ 7.2 $ 18.9
======== ======== ======== ========
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On May 1, 2001, the Company's Board of Directors declared a cash dividend of
$.10 per share which was paid on June 14, 2001 to shareholders of record on June
1, 2001.
(7) Interest and Other Expense (Income)
Interest and other expense (income) consists of the following:
3 MONTHS ENDED 6 MONTHS ENDED
JUNE 30, JUNE 30,
----------------------- -----------------------
2001 2000 2001 2000
----------- ----------- ----------- -----------
Interest expense $ 8.7 $ 7.9 $ 17.4 $ 15.8
Interest income (2.4) (1.7) (5.0) (3.7)
Foreign exchange (gains) losses (.9) .2 (.2) 1.3
Loss on sale of accounts receivable 1.7 2.1 4.0 5.2
Miscellaneous, net 1.5 2.2 2.6 2.9
-------- -------- -------- --------
Total $ 8.6 $ 10.7 $ 18.8 $ 21.5
======== ======== ======== ========
(8) Contingencies
The Company and a number of unrelated parties have been named as defendants in
numerous lawsuits, including a certified class action, in Louisiana asserting
claims primarily for personal injuries, property damage and lost profits
arising out of a 1999 explosion at a customer's industrial facility. The cases
have been consolidated before a single judge and some of the most serious ones
are set for trial on September 4, 2001. Allegedly, the injuries and damages
were caused in part by the actions of one of the Company's temporary employees.
Although several recent court rulings have been adverse to the Company, it
intends to continue to vigorously contest these lawsuits. Should the ultimate
judgements or settlements exceed the Company's insurance coverage, they could
have a material effect on the Company's results of operations, financial
position and cash flows. An estimate of our portion of any liability with
respect to these claims cannot be reasonably made with currently available
information.
The Company is also involved in a number of other lawsuits arising in the
ordinary course of business that will not, in the opinion of management, have a
material effect on the Company's results of operations, financial position or
cash flows.
(9) Derivative Financial Instruments
Since June 1998, the FASB has issued SFAS Nos. 133, 137 and 138 related to
"Accounting for Derivative Instruments and Hedging Activities" ("SFAS No. 133,
as amended" or "Statements"). These Statements establish accounting and
reporting standards requiring derivative instruments are recorded on the balance
sheet as either an asset or liability measured at fair value. If the derivative
is designated as a fair value hedge, the changes in the fair value of the
derivative and of the hedged item attributable to the hedged risk are recognized
in earnings. If the derivative is designated as a cash flow hedge, the effective
portions of the changes in the fair value of the derivative are recorded as a
component of accumulated other comprehensive income (loss) and recognized in the
consolidated statement of earnings when the hedged item affects earnings.
Ineffective portions of changes in the fair value of cash flow hedges are
recognized in earnings.
On January 1, 2001, the Company adopted SFAS No. 133, as amended. As a result of
adopting the standard, the Company recognized the fair value of all derivative
contracts as a net liability of $3.4 on the consolidated balance sheets. This
amount was recorded as a component of accumulated other comprehensive income
(loss). There was no impact on earnings.
The Company enters into various derivative financial instruments to manage
certain of its foreign currency exchange rate and interest rate risks. The
Company does not use derivative financial instruments for trading or speculative
purposes.
Foreign Currency Exchange Rate Management
In certain circumstances, the Company enters into foreign currency forward
exchange contracts to reduce the effects of fluctuating foreign currency
exchange rates on cash flows with foreign subsidiaries. Such contracts have been
designated as cash flow hedges and were considered highly effective as of June
30, 2001.
The Company's borrowings which are denominated in Euro, Japanese yen, and
British pounds have been designated and are effective as economic hedges of the
Company's net investment in its foreign
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subsidiaries with the related functional currencies. Therefore, all translation
gains or losses related to these borrowings are recorded as a component of
accumulated other comprehensive income (loss).
Interest Rate Risk Management
The Company enters into interest rate swaps to manage the effects of interest
rate movements on the Company's variable rate borrowings. The swaps are
denominated in Euro and Japanese yen and exchange floating rate for fixed rate
payments on a periodic basis over the terms of the related borrowings. Such
contracts have been designated as cash flow hedges and were considered highly
effective as of June 30, 2001.
(10) Segment Information
Segment information is as follows:
3 MONTHS ENDED 6 MONTHS ENDED
JUNE 30, JUNE 30,
------------------------- -------------------------
2001 2000 2001 2000
------------ ------------ ------------ ------------
Revenues from services:
United States (a) $ 523.5 $ 609.6 $ 1,069.8 $ 1,173.5
France 948.6 1,021.0 1,887.8 1,934.6
United Kingdom 369.6 347.2 750.5 712.2
Other Europe 475.3 459.8 974.6 919.3
Other Countries 303.1 276.5 589.3 542.8
---------- ---------- ---------- ----------
$ 2,620.1 $ 2,714.1 $ 5,272.0 $ 5,282.4
========== ========== ========== ==========
Operating Unit Profit:
United States $ 12.2 $ 23.0 $ 20.4 $ 38.5
France 35.4 31.5 61.7 52.3
United Kingdom 10.2 9.6 19.9 17.6
Other Europe 17.7 17.8 37.0 32.5
Other Countries 1.1 1.5 3.0 5.1
---------- ---------- ---------- ----------
76.6 83.4 142.0 146.0
Corporate expenses 10.0 10.4 19.6 18.9
Amortization of intangible assets 3.9 3.3 7.6 6.9
Interest and other expense 8.6 10.7 18.8 21.5
---------- ---------- ---------- ----------
Earnings before income taxes $ 54.1 $ 59.0 $ 96.0 $ 98.7
========== ========== ========== ==========
(a) Total systemwide sales in the United States, which includes sales of
Company-owned branches and franchises, were $801.5 and $965.3 for the
three months ended June 30, 2001 and 2000, respectively, and $1,663.0
and $1,887.3 for the six months ended June 30, 2001 and 2000,
respectively.
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Item 2 - Management's Discussion and Analysis of Financial Condition and Results
of Operations
Operating Results - Three Months Ended June 30, 2001 and 2000
Revenues decreased 3.5% to $2,620.1 million for the second quarter of 2001.
Revenues were unfavorably impacted by changes in currency exchange rates during
the second quarter of 2001 due to the strengthening of the U.S. dollar, as
compared to the second quarter of 2000, relative to the currencies in most of
the Company's non-U.S. markets. At constant exchange rates, revenues would have
increased 2.5%. Acquisitions had a favorable impact of less than 1% on
consolidated revenues, on a constant currency basis, during the second quarter
of 2001.
The United States experienced a revenue decrease of 14.1% for the second quarter
of 2001 compared to 2000 due lower customer demand resulting from the economic
slowdown. Local currency revenue in France contracted .6% during the second
quarter of 2001 due to slowing of the French economy throughout the quarter.
Constant currency revenue increases for the second quarter of 2001 compared to
2000 were experienced in the United Kingdom (14.7%), Other Europe (11.5%) and
Other Countries (21.0%). Revenue growth rates in the United States, France and
Other Europe are down from those realized in the first quarter of 2001,
reflecting further slowing in the United States and recent slowing in France and
most other continental-European markets.
Gross profit increased 2.4% to $489.1 million for the second quarter of 2001
compared to 2000. Gross profit margin increased 110 basis points (1.1%) from the
second quarter of 2000 to 18.7% in 2001. This increase is due primarily to
improving business mix to higher value services and improved pricing in most of
the Company's major markets.
Selling and administrative expenses increased 4.5% to $426.4 million in the
second quarter of 2001 compared to the same period in 2000. This expense level
is lower than that incurred during the first quarter of 2001, reflecting the
Company's cost reduction efforts. As a percent of gross profit, these expenses
were 87.2% in the second quarter of 2001 compared to 85.4% in the second quarter
of 2000. The increase is due primarily to the de-leveraging of the business
caused by the slowing revenue growth, particularly in the United States and
Other Europe, coupled with the Company's continued investment in certain
expanding markets and strategic initiatives.
Interest and other expense decreased $2.1 million from the second quarter of
2000 to $8.6 million in the second quarter of 2001. Net interest expense,
including the loss on sale of accounts receivable, was $8.0 million in the
second quarter of 2001 compared to $8.3 million in the second quarter of 2000.
This decrease in expense is due to the lower borrowing levels resulting from the
improvement in working capital management. Translation gains were $.9 million in
the second quarter of 2001 compared to losses of $.2 million in the second
quarter of 2000.
The Company provided for income taxes during the second quarter of 2001 at a
rate of 36.0%, which is equal to the estimated annual effective tax rate based
on the currently available information. This rate is higher than the U.S.
Federal statutory rate due to foreign repatriations, cost of foreign tax rate
differences and U.S. state income taxes.
On a diluted basis, net earnings per share were $.45 in the second quarter of
2001 compared to $.49 in the second quarter of 2000. The net earnings per share,
on a diluted basis, for the second quarter of 2001 were negatively impacted by
$.05 due to changes in exchange rates.
Operating Results - Six Months Ended June 30, 2001 and 2000
Revenues decreased .2% to $5,272.0 million for the first six months of 2001.
Revenues were unfavorably impacted by changes in currency exchange rates during
the first six months of 2001 due to the
12
strengthening of the U.S. dollar, as compared to the first six months of 2000,
relative to the currencies in most of the Company's non-U.S. markets. At
constant exchange rates, revenues would have increased 6.1%. Acquisitions had a
favorable impact of less than 1% on consolidated revenues, on a constant
currency basis, during the first six months of 2001.
Constant currency revenue increases during the first six months of 2001 compared
to 2000 were experienced in France (4.2%), the United Kingdom (14.8%), Other
Europe (14.3%) and Other Countries (19.3%). The United States experienced a
revenue decrease of 8.8% for the first six months of 2001 compared to 2000 due
to the impact of the economic slowdown.
Gross profit increased 5.3% to $973.0 million for the first six months of 2001
compared to 2000. Gross profit margin increased 100 basis points (1.0%) from the
first six months of 2000 to 18.5% in 2001. This increase is due primarily to
improving business mix to higher value services and improved pricing in most of
the Company's major markets.
Selling and administrative expenses increased 6.8% to $858.2 million in the
first six months of 2001 compared to the same period in 2000. As a percent of
gross profit, these expenses were 88.2% in the first six months of 2001 compared
to 87.0% in the first six months of 2000. This increase is due primarily to the
de-leveraging of the business caused by the slowing revenue growth, particularly
in the United States and Other Europe, coupled with the Company's continued
investment in certain expanding markets and strategic initiatives.
Interest and other expense decreased $2.7 million from the first six months of
2000 to $18.8 million in the first six months of 2001. Net interest expense,
including the loss on sale of accounts receivable, was $16.4 million in the
first six months of 2001 compared to $17.3 million for the same period in 2000.
This decrease in expense is due to the lower borrowing levels resulting from the
improvement in working capital management. Translation gains were $.2 million in
the first six months of 2001 compared to losses of $1.3 million in the first six
months of 2000.
The Company provided for income taxes during the first six months of 2001 at a
rate of 36.0%, which is equal to the estimated annual effective tax rate based
on the currently available information. This rate is higher than the U.S.
Federal statutory rate due to cost of foreign repatriations, foreign tax rate
differences and U.S. state income taxes.
On a diluted basis, net earnings per share were $.80 for the first six months of
2001 compared to $.82 for the same period in 2000. The net earnings per share,
on a diluted basis, for the first six months of 2001 were negatively impacted by
$.08 due to changes in exchange rates.
Liquidity and Capital Resources
Cash provided by operating activities was $62.1 million in the first six months
of 2001 compared to cash used by operating activities of $24.9 million in the
first six months of 2000. Excluding the changes in amounts advanced under the
Receivable Facility, cash provided by operating activities was $142.1 million
and $75.1 million in the first six months of 2001 and 2000, respectively. This
increase is mainly due to a 2-day improvement in consolidated accounts
receivable days sales outstanding ("DSO") during the first six months of 2001
compared to 2000. Cash provided by operating activities before changes in
working capital requirements was $104.5 million in the first six months of 2001
compared to $107.4 million in the first six months of 2000.
Capital expenditures were $43.9 million in the first six months of 2001 compared
to $33.8 million during the first six months of 2000. These expenditures were
primarily comprised of purchases of computer equipment and software, office
furniture and other costs related to office openings and refurbishments.
13
During the first six months of 2001, the Company acquired and invested in
several companies throughout the world. The total consideration paid for such
transactions was $96.1 million as of June 30, 2001, which includes the final
payment of $30.0 million in deferred consideration related to the Company's
January 2000 acquisition of Elan Group Limited.
Net cash provided from borrowings was $79.2 million and $161.3 million in the
first six months of 2001 and 2000, respectively. Including changes in amounts
advanced under the accounts receivable securitization, there was a net repayment
of $.8 million in the first six months of 2001 compared to net borrowings and
advances of $61.3 million in the same period of 2000. Net borrowings and
advances in 2000 were used to finance acquisitions and working capital needs.
The Company repurchased 100,000 shares and 483,900 shares at a cost of $3.3
million and $14.5 million, respectively, during the first six months of 2001 and
2000, respectively.
Net accounts receivable decreased to $1,969.2 million at June 30, 2001 from
$2,094.4 million at December 31, 2000. This decrease is mainly due to the effect
of the change in foreign currency exchange rates in 2001 compared to 2000, which
negatively impacted the receivable balance by $166.7 million, and a 2-day
decrease in consolidated accounts receivable DSO. This decrease was offset by
the $80.0 million reduction in the amount advanced under the Company's U.S.
Receivables Facility.
As of June 30, 2001, the Company had borrowings of $211.1 million and letters of
credit of $67.6 million outstanding under its $415.0 million U.S. revolving
credit facility, and borrowings of $16.4 million outstanding under its U.S.
commercial paper program. The commercial paper borrowings have been classified
as long-term debt due to the availability to refinance them on a long-term basis
under the revolving credit facility.
The Company and some of its foreign subsidiaries maintain separate lines of
credit with foreign financial institutions to meet short-term working capital
needs. As of June 30, 2001, such lines totaled $168.5 million, of which $137.0
million was unused.
On May 1, 2001, the Company's Board of Directors declared a cash dividend of
$.10 per share which was paid on June 14, 2001 to shareholders of record on June
1, 2001.
During July 2001, the Company acquired Jefferson Wells International, Inc.
("Jefferson Wells"), a professional services provider of internal audit,
accounting, technology and tax services, for approximately $174.0 million,
including assumed debt. The acquisition of Jefferson Wells was financed through
the Company's existing credit facilities. Jefferson Wells operates a network of
offices throughout the United States and Canada.
New Accounting Pronouncements
Since June 1998, the Financial Accounting Standards Board ("FASB") has issued
Statements of Financial Accounting Standards ("SFAS") Nos. 133, 137 and 138
related to "Accounting for Derivative Instruments and Hedging Activities" ("SFAS
No. 133, as amended" or "Statements"). These Statements establish accounting and
reporting standards requiring derivative instruments are recorded on the balance
sheet as either an asset or liability measured at its fair value. If the
derivative is designated as a fair value hedge, the changes in the fair value of
the derivative and of the hedged item attributable to the hedged risk are
recognized in earnings. If the derivative is designated as a cash flow hedge,
the effective portions of the changes in the fair value of the derivative are
recorded as a component of accumulated other comprehensive income (loss) and are
recognized in the consolidated statement of earnings when the hedged item
affects earnings. Ineffective portions of changes in the fair value of cash flow
hedges are recognized in earnings.
14
On January 1, 2001, the Company adopted SFAS No. 133, as amended. As a result of
adopting the standard, the Company recognized the fair value of all derivative
contracts as a net liability of $3.4 million on the consolidated balance sheets.
This amount was recorded as a component of accumulated other comprehensive
income (loss). There was no impact on earnings.
During June 2001, the FASB issued SFAS No. 141, "Business Combinations," which
requires all business combinations completed subsequent to June 30, 2001 to be
accounted for using the purchase method. Although the purchase method generally
remains unchanged, this standard also requires that acquired intangible assets
should be separately recognized if the benefit of the intangible assets are
obtained through contractual or other legal rights, or if the intangible assets
can be sold, transferred, licensed, rented or exchanged, regardless of the
acquirer's intent to do so. Intangible assets separately identified must be
amortized over their estimated economic life. Goodwill or identifiable
intangible assets with an indefinite life resulting from such business
combinations are no longer required to be amortized.
This statement is effective for the Company beginning July 1, 2001. The Company
has accounted for all previous acquisitions under the purchase method and the
related excess of purchase price over net assets was mainly goodwill, therefore,
the adoption of this statement will not have a material impact on the
consolidated financial statements.
During June 2001, the FASB issued SFAS No. 142, "Goodwill and Other Intangible
Assets," which prohibits the amortization of goodwill over an estimated useful
life. Rather, goodwill will be subject to impairment reviews by applying a
fair-value-based test at the reporting unit level, which generally represents
operations one level below the segments reported by the Company. An impairment
loss will be recorded for any goodwill that is determined to be impaired.
This statement is effective for the Company on January 1, 2002. Upon adoption,
the Company will perform an impairment test on all existing goodwill, which will
be updated at least annually. The Company has not yet determined the extent of
any impairment losses on its existing goodwill, however, any such losses are not
expected to be material to the consolidated financial statements.
The Euro
Twelve of the fifteen member countries of the European Union (the "participating
countries") have established fixed conversion rates between their existing
sovereign currencies (the "legacy currencies") and the Euro and have agreed to
adopt the Euro as their common legal currency. The legacy currencies will remain
legal tender in the participating countries as denominations of the Euro between
January 1, 1999 and January 1, 2002 (the "transition period"). During the
transition period, public and private parties may pay for goods and services
using either the Euro or the participating country's legacy currency. Beginning
on January 1, 2002, Euro-denominated bills and coins will be issued and legacy
currencies will be withdrawn from circulation.
The Company has significant operations in many of the participating countries
and continues to assess the impact of the Euro on its business operations. Since
the Company's labor costs and prices are generally determined on a local basis,
the near-term impact of the Euro has been and is expected to be primarily
related to making internal information systems modifications to meet employee
payroll, customer invoicing and financial reporting requirements. Such
modifications relate to converting currency values and to operating in a dual
currency environment during the transition period. Modifications of internal
information systems have been occurring throughout the transition period and are
mainly coordinated with other system-related upgrades and enhancements. All
modifications are expected to be completed prior to December 2001. The Company
will account for all such system modification costs in accordance with its
existing policy and does not expect such costs to be material to the Company's
consolidated financial statements.
15
Forward-Looking Statements
Certain information included or incorporated by reference in this filing and
identified by use of the words "expects," "believes," "plans" or the like
constitutes forward-looking statements, as such term is defined in Section 27A
of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of
1934. In addition, any information included or incorporated by reference in
future filings by the Company with the Securities and Exchange Commission, as
well as information contained in written material, releases and oral statements
issued by or on behalf of the Company may include forward-looking statements.
All statements which address operating performance, events or developments that
the Company expects or anticipates will occur or future financial performance
are forward-looking statements.
These forward-looking statements speak only as of the date on which they are
made. They rely on a number of assumptions concerning future events and are
subject to a number of risks and uncertainties, many of which are outside of the
Company's control, that could cause actual results to differ materially from
such statements. These risks and uncertainties include, but are not limited to:
- - material changes in the demand from larger customers, including customers
with which the Company has national or global arrangements
- - availability of temporary workers or workers with the skills required by
customers
- - increases in the wages paid to temporary workers
- - competitive market pressures, including pricing pressures
- - ability to successfully expand into new markets or service lines
- - ability to successfully invest in and implement information systems
- - unanticipated technological changes, including obsolescence or impairment
of information systems
- - changes in customer attitudes toward the use of staffing services
- - government, tax or regulatory policies adverse to the employment services
industry
- - general economic conditions in domestic and international markets
- - interest rate and exchange rate fluctuations
- - difficulties related to acquisitions, including integrating the acquired
companies and achieving the expected benefits
The Company disclaims any obligation to update publicly or revise any
forward-looking statements, whether as a result of new information, future
events or otherwise.
Item 3 - Quantitative and Qualitative Disclosures about Market Risk
The Company's 2000 Annual Report on Form 10-K contains certain disclosures about
market risks affecting the Company. There have been no material changes to the
information provided which would require additional disclosures as of the date
of this filing.
16
PART II - OTHER INFORMATION
Item 1 - Legal Proceedings
Information relating to legal proceedings is set forth in Note 8 to the
Company's consolidated financial statements.
Item 2 - Changes in Securities and Use of Proceeds
(a) At the Annual Meeting of the Company's shareholders on May 1, 2001, the
shareholders of the Company's common stock, $0.01 par value, approved an
amendment to the Company's Amended and Restated Articles of Incorporation
to increase the permitted size of the Company's Board of Directors from
between three and eleven directors to between three and fifteen
directors. A corresponding change was made to the Company's Amended and
Restated By-Laws.
(b) Not applicable.
(c) Not applicable.
(d) Not applicable.
Item 4 - Submission of Matters to a Vote of Security Holders
On May 1, 2001, at the Company's Annual Meeting of Shareholders (the "Annual
Meeting") the shareholders of the Company voted to: (1) elect three directors to
serve until 2004 as Class II directors; (2) amend the 1994 Executive Stock
Option and Restricted Stock Plan of Manpower Inc. to increase the number of
shares authorized for issuance and permit the Company's directors to participate
in the Plan; (3) amend the Company's Amended and Restated Articles of
Incorporation to increase the maximum number of directors; and (4) ratify the
appointment of Arthur Andersen LLP as the Company's independent auditors for
2001. In addition, Dudley J. Godfrey, Jr., Marvin B. Goodman, Edward J. Zore and
J. Thomas Bouchard continued as Class III directors (term expiring 2002), and
Dennis Stevenson, John R. Walter, Jeffery A. Joerres and Nancy G. Brinker
continued as Class I directors (term expiring 2003). The results of the
proposals voted upon at the Annual Meeting are as follows:
Broker
For Against Withheld Abstain Non-Vote
--- ------- -------- ------- --------
1. a) Election of J. Ira Harris 62,975,314 - 1,808,120 - -
b) Election of Terry A. Hueneke 63,812,709 - 970,725 - -
c) Election of Willie D. Davis 63,906,919 - 876,515 - -
2. Approval of amendment to the 1994
Executive Stock Option and Restricted
Stock Plan of Manpower Inc. to increase
the number of shares authorized and to
permit the Company's directors to
participate in the Plan. 57,078,298 7,342,756 - 362,380 -
3. Approval of amendment to Amended and
Restated Articles of Incorporation of
the Company to increase the maximum
number of directors. 64,484,058 212,108 - 87,268 -
4. Ratification of Arthur Andersen
LLP as independent auditors 63,751,199 1,007,756 - 24,479 -
17
Item 6 - Exhibits and Reports on Form 8-K
(a) Exhibits
3.1 Amendment of Amended and Restated Articles of Incorporation of
Manpower Inc.
3.2 Amended and Restated By-Laws of Manpower Inc.
(b) The Company did not file any reports on Form 8-K during the quarter for
which this report is filed.
18
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.
MANPOWER INC.
---------------------------------------------------
(Registrant)
Date: August 10, 2001 /s/ Michael J. Van Handel
---------------------------------------------------
Michael J. Van Handel
Senior Vice President, Chief Financial Officer and
Secretary (Signing on behalf of the Registrant and
as the Principal Financial Officer and Principal
Accounting Officer)
1
EXHIBIT 3.1
AMENDMENT OF AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
MANPOWER INC.
The undersigned Chairman, President and Chief Executive Officer of
Manpower Inc. (the "Corporation"), hereby certifies that in accordance with
Section 180.1003 of the Wisconsin Business Corporation Law and Article IX of the
Corporation's Amended and Restated Articles of Incorporation (the "Restated
Articles"), the following Amendment was duly adopted to increase the permitted
maximum size of the Board of Directors:
"Article VIII is hereby amended by deleting the first
paragraph of Article VIII in its entirety and replacing it with the
following:
`The number of directors (exclusive of directors, if
any, elected by the holders of one or more series of Preferred
Stock, voting separately as a series pursuant to the
provisions of these Articles of Incorporation applicable
thereto) shall not be less than 3 nor more than 15 directors,
the exact number of directors to be determined from time to
time by resolution adopted by the affirmative vote of a
majority of the entire Board of Directors then in office.'
The remainder of Article VIII of the Articles will remain unchanged."
This Amendment to the Restated Articles was approved by the Board of
Directors of the Corporation on February 20, 2001. This Amendment to the
Restated Articles was approved by the shareholders of the Corporation at the
2001 Annual Meeting of Shareholders on May 1, 2001 in accordance with Section
180.1003 of Wisconsin Business Corporation Law.
This Amendment to the Restated Articles shall be effective
as of 1:30 p.m. on May 8, 2001.
Executed in duplicate this 7th day of May, 2001.
MANPOWER INC.
By: /s/ Jeffrey A. Joerres
-------------------------------
Jeffrey A. Joerres
Chairman, President and Chief
Executive Officer
This instrument was drafted by:
Michelle M. Nelson
Godfrey & Kahn, S.C.
780 North Water Street
Milwaukee, Wisconsin 53202
1
EXHIBIT 3.2
AMENDED AND RESTATED BY-LAWS
OF
MANPOWER INC.
(as of May 1, 2001)
ARTICLE I. OFFICES
SECTION 1.1. Principal and Other Offices. The principal office of the
Corporation shall be located at any place either within or outside the State of
Wisconsin as designated in the Corporation's most current Annual Report filed
with the Wisconsin Secretary of State. The Corporation may have such other
offices, either within or outside the State of Wisconsin as the Board of
Directors may designate or as the business of the Corporation may require from
time to time.
SECTION 1.2. Registered Office. The registered office of the
Corporation required by the Wisconsin business corporation law to be maintained
in the State of Wisconsin may, but need not, be the same as any of its places of
business. The registered office may be changed from time to time.
SECTION 1.3. Registered Agent. The registered agent of the Corporation
required by the Wisconsin business corporation law to maintain a business office
in the State of Wisconsin may, but need not, be an officer or employee of the
Corporation as long as such agent's business office is identical with the
registered office. The registered agent may be changed from time to time.
ARTICLE II. SHAREHOLDERS
SECTION 2.1. Annual Meeting. The annual meeting of shareholders shall
be held on the third Tuesday in the month of April for each year at 10:00 a.m.
(local time) or at such other date and time as shall be fixed by, or at the
direction of, the Board of Directors, for the purpose of electing directors for
the class of directors whose term expires in such year and for the transaction
of such other business as may have been properly brought before the meeting in
compliance with the provisions of Section 2.5. 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.
SECTION 2.2. Special Meetings. Except as otherwise required by
applicable law, special meetings of shareholders of the Corporation may only be
called by the Chairman of the Board or the President and Chief Executive Officer
pursuant to a resolution approved by not less than three-quarters of the Board
of Directors; provided, however, that the Corporation shall hold a special
meeting of shareholders of the Corporation if a signed and dated written demand
or demands by the holders of at least 10% of all the votes entitled to be cast
on any issue proposed to be considered at the proposed special meeting is
delivered to the Corporation as required under the Wisconsin business
corporation law, which demand or demands must describe one or more identical
purposes for which the shareholders demand a meeting be called.
SECTION 2.3. Place of Meeting. The Board of Directors, the Chairman of
the Board or the President and Chief Executive Officer may designate any place,
within or outside the State of Wisconsin, as the place of meeting for the annual
meeting or for any special meeting. If no designation is made the place of
meeting shall be the principal office of the Corporation, but any meeting may be
adjourned to reconvene at any place designated by vote of a majority of the
shares represented thereat.
SECTION 2.4. Notice of Meeting. The Corporation shall notify
shareholders of the date, time and place of each annual and special shareholders
meeting. Notice of a special meeting shall include a description of each purpose
for which the meeting is called. Notice of all meetings need be given only to
shareholders entitled to vote, unless otherwise required by the Wisconsin
business corporation law, and shall be given not less than ten nor more than
sixty days before the meeting date. The Corporation may give notice in person,
by telephone, telegraph, teletype, facsimile or other forms of wire or wireless
communication, or by mail or private carrier, and, if these forms of personal
communication are impracticable, notice may be communicated by a newspaper of
general circulation in the area where published, or by radio, television or
other form of public broadcast communication. Written notice shall be deemed
to be effective at the earlier of receipt or mailing and may be addressed to
the
2
shareholder's address shown in the Corporation's current record of shareholders.
Oral notice shall be deemed to be effective when communicated. Notice by
newspaper, radio, television or other form of public broadcast communication
shall be deemed to be effective the date of publication or broadcast.
SECTION 2.5. Advance Notice Shareholder-Proposed Business at Annual
Meeting. At an annual meeting of shareholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be: (a) specified in the notice
of meeting (or any amendment or supplement thereto) given in accordance with
Section 2.4, (b) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, the Chairman of the Board or the President
and Chief Executive Officer, or (c) otherwise properly brought before the
meeting by a shareholder. In addition to any other requirements under applicable
law, the Articles of Incorporation or the By-Laws for business to be properly
brought before an annual meeting by a shareholder, the shareholder must have
given timely notice thereof in writing to the Secretary of the Corporation. To
be timely, a shareholder's notice must be delivered to or mailed and received at
the principal office of the Corporation, not less than 90 days prior to the
meeting date specified in Section 2.1. A shareholder's notice to the Secretary
shall set forth as to each matter the shareholder proposes to bring before the
annual meeting (i) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, (ii) the name and record address of the shareholder proposing
such business, (iii) the class and number of shares of the Corporation which are
beneficially owned by the shareholder, and (iv) any interest of the shareholder
in such business. In addition, any such shareholder shall be required to provide
such further information as may be requested by the Corporation in order to
comply with federal securities laws, rules and regulations. The Corporation may
require evidence by any person giving notice under this Section 2.5 that such
person is a bona fide beneficial owner of the Corporation's shares.
Notwithstanding anything in the By-Laws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 2.5; provided, however, that nothing in
this Section 2.5 shall be deemed to preclude discussion by any shareholder of
any business properly brought before the annual meeting in accordance with said
procedure.
The presiding officer at an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section 2.5, and if
he should so determine, he shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted.
SECTION 2.6. Procedure for Nomination of Directors. Only persons
nominated in accordance with all of the procedures set forth in the
Corporation's Articles of Incorporation and By-Laws shall be eligible for
election as directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made at a meeting of shareholders by or at
the direction of the Board of Directors, by any nominating committee or persons
appointed by the Board, or by any shareholder of the Corporation entitled to
vote for election of directors at the meeting who complies with all of the
notice procedures set forth in this Section 2.6.
Nominations other than those made by or at the direction of the Board
of Directors or any nominating committee or person appointed by the Board shall
be made pursuant to timely notice in proper written form to the Secretary of the
Corporation. To be timely, a shareholder's request to nominate a person for
director, together with the written consent of such person to serve as a
director, must be received by the Secretary of the Corporation at the
Corporation's principal office (i) with respect to an election held at an annual
meeting of shareholders, not less than 90 days nor more than 150 days prior to
the meeting date specified in Section 2.1, or (ii) with respect to an election
held at a special meeting of shareholders for the election of directors, not
less than the close of business on the eighth day following the date on which
notice of such meeting is given to shareholders. To be in proper written form,
such shareholder's notice shall set forth in writing (a) as to each person whom
the shareholder proposes to nominate for election or reelection as a director
(i) the name, age, business address and residence address of such person, (ii)
the principal occupation or employment of such person, (iii) the class and
number of shares of stock of the Corporation which are beneficially owned by
such person, and (iv) such other information relating to such person as is
required to be disclosed in solicitations of proxies for election of directors,
or as otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended, and any successor to
2
3
such Regulation; and (b) as to the shareholder giving the notice (i) the name
and address, as they appear on the Corporation's books, of such shareholder,
(ii) the class and number of shares of stock of the Corporation which are
beneficially owned by such shareholder, and (iii) a representation that the
shareholder is a holder of record of stock of the Corporation entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice. The Corporation may
require any proposed nominee to furnish such other information as may reasonably
be required by the Corporation to determine the eligibility of such proposed
nominee to serve as a director of the Corporation or the shareholder to nominate
the proposed nominee. The presiding officer at the meeting shall, if the facts
so warrant, determine and declare to the meeting that a nomination was not made
in accordance with the procedures or other requirements prescribed by the
Corporation's Articles of Incorporation and By-Laws; and if he should so
determine, such presiding officer shall so declare to the meeting and the
defective nomination(s) shall be disregarded.
SECTION 2.7. Fixing of Record Date. For the purpose of determining
shareholders of any voting group entitled to notice of or to vote at any meeting
of shareholders or any adjournment thereof, or shareholders entitled to receive
payment of any distribution or dividend, or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors may fix in
advance a date as the record date for any such determination of shareholders.
Such record date shall not be more than 70 days prior to the date on which the
particular action, requiring such determination of shareholders, is to be taken.
If no record date is so fixed for the determination of shareholders entitled to
notice of, or to vote at a meeting of shareholders, or shareholders entitled to
receive a share dividend or distribution, the record date for determination of
such shareholders shall be at the close of business on:
(a) With respect to an annual shareholders meeting or any
special shareholders meeting called by the Board of Directors or any
person specifically authorized by the Board of Directors or these
By-Laws to call a meeting, the day before the first notice is mailed to
shareholders;
(b) With respect to a special shareholders meeting demanded
by the shareholders, the date the first shareholder signs the demand;
(c) With respect to the payment of a share dividend, the date
the Board of Directors authorizes the share dividend; and
(d) With respect to a distribution to shareholders (other than
one involving a repurchase or reacquisition of shares), the date the
Board of Directors authorizes the distribution.
SECTION 2.8. Voting Lists. After fixing a record date for a meeting,
the Corporation shall prepare a list of the name of all its shareholders who are
entitled to notice of a shareholders meeting. The list shall be arranged by
class or series of shares and show the address of and the number of shares held
by each shareholder. The shareholders list must 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.
The list shall be available at the Corporation's principal office or at a place
identified in the meeting notice in the city where the meeting is to be held.
Subject to the provisions of the Wisconsin business corporation law, a
shareholder or his or her agent or attorney may, on written demand, inspect and
copy the list during regular business hours and at his expense, during the
period it is available for inspection. 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 such
meeting.
SECTION 2.9. Shareholder Quorum and Voting Requirements. Shares
entitled to vote as a separate voting group may take action on a matter at a
meeting only if a quorum of those shares exists with respect to that matter.
Unless the Articles of Incorporation, By-Laws adopted under authority granted in
the Articles of Incorporation or the Wisconsin business corporation law provide
otherwise, a majority of the votes entitled to be cast on the matter by the
voting group constitutes a quorum of that voting group for action on that
matter.
3
4
If the Articles of Incorporation or the Wisconsin business corporation
law provide for voting by two or more voting groups on a matter, action on that
matter is taken only when voted upon by each of those voting groups counted
separately. Action may be taken by one voting group on a matter even though no
action is taken by another voting group entitled to vote on the matter.
Once a share is represented for any purpose at a meeting, other than
for the purpose of objecting to holding the meeting or transacting business at
the meeting, it is deemed present for purposes of determining whether a quorum
exists, for the remainder of the meeting and for any adjournment of that meeting
to the extent provided in Section 2.14.
If a quorum exists, action on a matter by a voting group is approved if
the votes cast within the voting group favoring the action exceed the votes cast
opposing the action, unless the Articles of Incorporation, the By-Laws or the
Wisconsin business corporation law require a greater number of affirmative
votes; provided, however, that for purposes of electing directors, unless
otherwise provided in the Articles of Incorporation, directors are elected by a
plurality of the votes cast by the shares entitled to vote in the election at a
meeting at which a quorum is present. For purposes of electing directors, (i) 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
election, and (ii) votes against a candidate are not given legal effect and are
not counted as votes cast in an election of directors.
SECTION 2.10. Proxies. For all meetings of shareholders, a shareholder
may appoint a proxy to vote or otherwise act for the shareholder by signing an
appointment form, either personally or by a duly authorized attorney-in-fact.
Such proxy shall be effective when filed with the Secretary of the Corporation
or other officer or agent authorized to tabulate votes before or at the time of
the meeting. No proxy shall be valid after eleven months from the date of its
execution, unless otherwise provided in the proxy.
SECTION 2.11. Voting of Shares. Unless otherwise provided in the
Articles of Incorporation, each outstanding share entitled to vote shall be
entitled to one vote upon each matter submitted to a vote at a meeting of
shareholders.
No shares in the Corporation held by another corporation may be voted
if the Corporation owns, directly or indirectly, a sufficient number of shares
entitled to elect a majority of the directors of such other corporation;
provided, however, that the Corporation shall not be limited in its power to
vote any shares, including its own shares, held by it in a fiduciary capacity.
SECTION 2.12. Voting Shares Owned by the Corporation. Shares of the
Corporation belonging to it shall not be voted directly or indirectly at any
meeting and shall not be counted in determining the total number of outstanding
shares at any given time, but shares held by this Corporation in a fiduciary
capacity may be voted and shall be counted in determining the total number of
outstanding shares at any given time.
SECTION 2.13. Acceptance of Instruments Showing Shareholder Action.
(a) 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 the shareholder.
(b) If the name signed on a vote, consent, waiver or proxy
appointment does not correspond to the name of its 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:
(1) the shareholder is an entity, within the meaning
of the Wisconsin business corporation law, and the name signed
purports to be that of an officer or agent of the entity;
(2) the name signed purports to be that of a personal
representative, administrator, executor, guardian or
conservator representing the shareholder and, if the
Corporation or its agent
4
5
request, evidence of fiduciary status acceptable to the
Corporation is presented with respect to the vote, consent,
waiver or proxy appointment;
(3) the name signed purports to be that of a receiver
or trustee in bankruptcy of the shareholder and, if the
Corporation or its agent request, evidence of this status
acceptable to the Corporation is presented with respect to the
vote, consent, waiver or proxy appointment;
(4) the name signed purports to be that of a pledgee,
beneficial owner, or attorney-in-fact of the shareholder and,
if the Corporation or its agent request, 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; or
(5) two or more persons are the shareholders as
cotenants or fiduciaries and the name signed purports to be
the name of at least one of the coowners and the persons
signing appears to be acting on behalf of all coowners.
(c) 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.
SECTION 2.14. Adjournments. An annual or special meeting of
shareholders may be adjourned at any time, including after action on one or more
matters, by a majority of shares represented, even if less than a quorum. The
meeting may be adjourned for any purpose, including, but not limited to,
allowing additional time to solicit votes on one or more matters, to disseminate
additional information to shareholders or to count votes. Upon being reconvened,
the adjourned meeting shall be deemed to be a continuation of the initial
meeting.
(a) Quorum. Once a share is represented for any purpose at the
original meeting, other than for the purpose of objecting to holding
the meeting or transacting business at a meeting, it is considered
present for purposes of determining if a quorum exists, for the
remainder of the meeting and for any adjournment of that meeting unless
a new record date is or must be set for that adjourned meeting.
(b) Record Date. When a determination of shareholders entitled
to notice of or to vote at any meeting of shareholders has been made as
provided in Section 2.7, such determination shall be applied to any
adjournment thereof unless the Board of Directors fixes a new record
date, which it shall do if the meeting is adjourned to a date more than
120 days after the date fixed for the original meeting.
(c) Notice. Unless a new record date for an adjourned meeting
is or must be fixed pursuant to Section 2.14(b), the Corporation is not
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.
SECTION 2.15. Polling. In the sole discretion of the presiding officer
of an annual or special meeting of shareholders, polls may be closed at any time
after commencement of any annual or special meeting. When there are several
matters to be considered at a meeting, the polls may remain open during the
meeting as to any or all matters to be considered, as the presiding officer may
declare. Polls will remain open as to matters to be considered at any
adjournment of the meeting unless the presiding officer declares otherwise. At
the sole discretion of the presiding officer, the polls may remain open after
adjournment of a meeting for not more than 72 hours for the purpose of
collecting proxies and counting votes. All votes submitted prior to the
announcement of the results of the balloting shall be valid and counted. The
results of balloting shall be final and binding after announcement of such
results.
SECTION 2.16. Waiver of Notice by Shareholders. A shareholder may waive
any notice required by the Wisconsin business corporation law, the Articles of
Incorporation or the 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
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same information that would have been required in the notice under any
applicable provisions of the Wisconsin business corporation law, except that the
time and place of the meeting need not be stated, and be delivered to the
Corporation for inclusion in the Corporation's records. A shareholder's
attendance at a meeting, in person or by proxy, waives objection to (i) lack of
notice or defective notice of the meeting, unless the shareholder at the
beginning of the meeting or promptly upon arrival objects to the holding of the
meeting or transacting business at the meeting, and (ii) 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 2.17. Unanimous Consent without Meeting. Any action required or
permitted to be taken at a meeting of shareholders may be taken without a
meeting only by unanimous written consent or consents signed by all of the
shareholders of the Corporation and delivered to the Corporation for inclusion
in the Corporation's records.
ARTICLE III. BOARD OF DIRECTORS
SECTION 3.1. General Powers. All corporate powers shall be exercised by
or under the authority of, and the business and affairs of the Corporation
managed under the direction of, its Board of Directors, subject to any
limitations set forth in the Articles of Incorporation.
SECTION 3.2. Number, Classification, Tenure and Qualifications.
(a) Number. Except as otherwise provided in the Articles of
Incorporation, the number of directors (exclusive of directors, if any,
elected by the holders of one or more series of preferred stock, voting
separately as a series pursuant to the provisions of the Articles of
Incorporation) shall be not less than 3 nor more than 15 directors, the
exact number of directors to be determined from time to time by
resolution adopted by affirmative vote of a majority of the entire
Board of Directors then in office.
(b) Classification. The directors shall be divided into three
classes, designated Class I, Class II, and Class III, and the term of
directors of each class shall be three years. Each class shall consist,
as nearly as possible, of one-third of the total number of directors
constituting the entire Board of Directors. If the number of directors
is changed by resolution of the Board of Directors pursuant to Section
3.2(a), any increase or decrease shall be apportioned among the classes
so as to maintain the number of directors in each class as nearly equal
as possible, but in no case shall a decrease in the number of directors
shorten the term of any incumbent director.
(c) Tenure. A director shall hold office until the annual
meeting for the year in which his term expires and until his successor
shall be duly elected and shall qualify.
(d) Qualifications. A director need not be a resident of the
state of Wisconsin or a shareholder of the corporation except if
required by the Articles of Incorporation. The Board of Directors, at
its discretion, may establish any qualifications for directors, which
qualifications, if any, shall only be applied for determining
qualifications of a nominee for director as of the date of the meeting
at which such nominee is to be elected or appointed.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of preferred stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at an annual or
special meeting of shareholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of the Articles of Incorporation applicable thereto. Directors so elected
shall not be divided into classes unless expressly provided by such Articles,
and during the prescribed terms of office of such directors, the Board of
Directors shall consist of such directors in addition to the number of directors
determined as provided in Section 3.2(a).
SECTION 3.3. Removal. Exclusive of directors, if any, elected by the
holders of one or more classes of preferred stock, no director of the
Corporation may be removed from office except for Cause and by the affirmative
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vote of two-thirds of the outstanding shares of capital stock of the Corporation
entitled to vote at a meeting of shareholders duly called for such purpose. As
used in this Section 3.3, the term "Cause" shall mean solely malfeasance arising
from the performance of a director's duties which has a materially adverse
effect on the business of the Corporation.
SECTION 3.4. Resignation. A director may resign at any time by
delivering written notice to the Board of Directors, the Chairman of the Board
or to the Corporation (which shall be directed to the Secretary).
SECTION 3.5. Vacancies. Exclusive of a vacancy in directors, if any,
elected by the holders of one or more classes of preferred stock, any vacancy on
the Board of Directors, however caused, including, without limitation, any
vacancy resulting from an increase in the number of directors, shall be filled
by the vote of a majority of the directors then in office, although less than a
quorum, or by a sole remaining director. Any director so elected to fill any
vacancy in the Board of Directors, including a vacancy created by an increase in
the number of directors, shall hold office for the remaining term of directors
of the class to which he has been elected and until his successor shall be
elected and shall qualify. A vacancy that will occur at a specific later date
may be filled before the vacancy occurs, but the new director will not take
office until the vacancy occurs.
SECTION 3.6. Committees. The Board of Directors by resolution adopted
by the affirmative vote of a majority of the number of directors fixed by
Section 3.2(a) then in office may create one or more committees, appoint members
of the Board of Directors to serve on the committees and designate other members
of the Board of Directors to serve as alternates. Each committee shall consist
of two or more members of the Board of Directors. Unless otherwise provided by
the Board of Directors, members of the committee shall serve at the pleasure of
the Board of Directors. The committee may exercise those aspects of the
authority of the Board of Directors which are within the scope of the
committee's assigned responsibilities or which the Board of Directors otherwise
confers upon such committee; provided, however, 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 be approved by
shareholders;
(c) fill vacancies on the Board of Directors or, unless the
Board of Directors has specifically granted authority to the committee,
its committees;
(d) amend the Articles of Incorporation pursuant to the
authority of directors to do so granted by the Wisconsin business
corporation law;
(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;
or
(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 (or a senior
executive officer of the corporation, including without limitation the
President and Chief Executive Officer and any Vice President) to do so
within limits prescribed by the Board of Directors.
Except as required or limited by the Articles of Incorporation, the By-Laws, the
Wisconsin business corporation law, or resolution of the Board of Directors,
each committee shall be authorized to fix its own rules governing the conduct of
its activities. Each committee shall make such reports to the Board of Directors
of its activities as the Board of Directors may request.
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SECTION 3.7. Compensation. Except as provided in the Articles of
Incorporation, the Board of Directors, irrespective of any personal interest of
any of its members, may fix the compensation of directors.
SECTION 3.8. Regular Meeting. 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. A regular meeting of a committee, if any, shall be at such
date, place, either within or outside the state of Wisconsin, and time as such
committee determines. Other regular meetings of the Board of Directors shall be
held at such dates, times and places, either within or without the State of
Wisconsin, as the Board of Directors may provide by resolution, which resolution
shall constitute exclusive notice of such meeting.
SECTION 3.9. 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 and Chief Executive Officer or three-quarters of the members of the
Board of Directors. Special meetings of a committee may be called by or at the
request of the Chairman of a committee or a majority of the committee members.
The person or persons authorized to call special meetings of the Board of
Directors or a committee may fix any date, time and place, either within or
outside the State of Wisconsin, for any special meeting of the Board of
Directors or committee called by them.
SECTION 3.10. Notice; Waiver. Notice of meetings, except for regular
meetings, shall be given at least five days previously thereto and shall state
the date, time and place of the meeting of the Board of Directors or committee.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the Board of Directors or committee need be specified in the
notice of such meeting. Notice may be communicated in person, by telephone,
telegraph, teletype, facsimile or other form of wire or wireless communication,
or by mail or private carrier. Written notice is effective at the earliest of
the following: (1) when received; (2) on the date shown on the return receipt,
if sent by registered or certified mail, return receipt requested, and the
receipt is signed by or on behalf of the addressee; or (3) two days after it is
deposited with a private carrier. Oral notice is deemed effective when
communicated. Facsimile notice is deemed effective when sent.
A director may waive any notice required by the Wisconsin business
corporation law, the Articles of Incorporation or the By-Laws before or after
the date and time stated in the notice. The waiver shall be in writing, signed
by the director entitled to the notice and retained by the Corporation.
Notwithstanding the foregoing, a director's attendance at or participation in a
meeting waives any required notice to such director of the meeting unless the
director at the beginning of the meeting or promptly upon such director's
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.
SECTION 3.11. Quorum; Voting. Unless otherwise provided in the Articles
of Incorporation or the Wisconsin business corporation law, a majority of the
number of directors fixed by Section 3.2(a) or appointed by the Board of
Directors to a committee shall constitute a quorum for the transaction of
business at any meeting of the Board of Directors or committee; provided,
however, that even though less than such quorum is present at a meeting, a
majority of the directors present may adjourn the meeting from time to time
without further notice. Except as otherwise provided in the Articles of
Incorporation, the By-Laws or the Wisconsin business corporation law, if a
quorum is present when a vote is taken, the affirmative vote of a majority of
directors present is the act of the Board of Directors or committee.
SECTION 3.12. Presumption of Assent. A director of the Corporation who
is present and is announced as present at a meeting of the Board of Directors or
a committee thereof at which action on any corporate matter is taken is deemed
to have assented to the action taken unless (i) such director objects at the
beginning of the meeting or promptly upon arrival to holding the meeting or
transacting business at the meeting, (ii) such 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, (iii) such director
delivers written notice of his dissent or abstention to the presiding officer of
the meeting before its adjournment or to the Corporation (directed to the
Secretary) immediately after adjournment of the meeting, or (iv) such 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
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(directed to the Secretary) a written notice of that failure promptly after
receiving the minutes. A director who votes in favor of action taken may not
dissent or abstain from that action.
SECTION 3.13. Informal Action Without Meeting. Any action required or
permitted by the Articles of Incorporation, the By-Laws or any provision of law
to be taken by the Board of Directors or a committee at a meeting may be taken
without a meeting if the action is taken by all of the directors or committee
members then in office. The action shall be evidenced by one or more written
consents describing the action taken, signed by each director and retained by
the Corporation. Any such consent is effective when the last director signs the
consent, unless the consent specifies a different effective date.
SECTION 3.14. Telephonic or Other Meetings. Unless the Articles of
Incorporation provide otherwise, any or all directors may participate in a
regular or special meeting of the Board of Directors or any committee thereof
by, or conduct the meeting through the use of, any means of communication by
which (i) all directors participating may simultaneously hear each other during
the meeting, (ii) all communication during the meeting is immediately
transmitted to each participating director and (iii) each participating director
is able to immediately send messages to all other participating directors. If
the meeting is to be conducted through the use of any such means of
communication 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 this means is deemed to be present in person at
the meeting. Notwithstanding the foregoing, the Chairman of the Board, or other
presiding officer, shall, at any time, have the authority to deem any business
or resolution not appropriate for meetings held pursuant to this Section 3.14.
SECTION 3.15. Chairman of the Board. The Board of Directors shall have
a Chairman of the Board, who shall be one of its members, to serve as its leader
with respect to its activities. The Chairman of the Board shall be elected by
the Board of Directors. The Board of Directors may remove and replace the
Chairman of the Board at any time with or without cause. The Chairman of the
Board shall not be an officer or employee of the Corporation by virtue of such
position. The Chairman of the Board shall preside at all annual and special
meetings of shareholders and all regular and special meetings of the Board of
Directors, in each case except as he delegates to the President and Chief
Executive Officer or as otherwise may be determined by the Board of Directors.
ARTICLE IV. OFFICERS
SECTION 4.1. Number. The principal officers of the Corporation shall be
a President and Chief Executive Officer, one or more Vice Presidents, any number
of whom may be designated as Senior Executive Vice President, Executive Vice
President or Senior Vice President, a Secretary and a Treasurer, each of whom
shall be elected by the Board of Directors. Such other officers as may be deemed
necessary may be elected or appointed by or under the authority of the Board of
Directors. Such other assistant officers as may be deemed necessary may be
appointed by the Board of Directors or the President and Chief Executive Officer
for such term as is specified in the appointment. The same natural person may
simultaneously hold more than one office in the Corporation.
SECTION 4.2. 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 of the shareholders. If the election of officers shall not be
held at such meeting, such election shall be held as soon thereafter as
convenient. Each officer shall hold office until his successor shall have been
duly elected or until his death or until he shall resign or shall have been
removed in the manner hereinafter provided.
SECTION 4.3. Removal. The Board of Directors may remove any officer at
any time with or without cause and notwithstanding the contract rights, if any,
of the officer removed. The Board of Directors or the President and Chief
Executive Officer may remove any assistant officer who was appointed by the
Board or the President and Chief Executive Officer. The appointment of an
officer or assistant officer does not itself create contract rights.
SECTION 4.4. 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. A
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vacancy in any assistant office because of death, resignation, removal,
disqualification or otherwise may be filled by the Board of Directors or the
President and Chief Executive Officer.
SECTION 4.5. President and Chief Executive Officer. The President and
Chief Executive Officer shall be the chief executive officer of the Corporation,
shall have executive authority to see that all orders and resolutions of the
Board of Directors are carried into effect and shall, subject to the control
vested in the Board of Directors by the Wisconsin Business Corporation Law,
administer and be responsible for the management of the business and affairs of
the Corporation. In the absence of the Chairman of the Board, the President and
Chief Executive Officer shall preside at annual and special meetings of
shareholders. The President and Chief Executive Officer 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 the Board of
Directors; and, except as otherwise provided by law, or limited by 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. The President and Chief Executive Officer shall perform
such other duties as are incident to the office of President and Chief Executive
Officer or as may be prescribed from time to time by the Board of Directors.
SECTION 4.6. Vice Presidents. One or more of the Vice Presidents may be
designated as Senior Executive Vice President, Executive Vice President or
Senior Vice President. In the absence of the President and Chief Executive
Officer or in the event of his death, inability or refusal to act, the Vice
Presidents in the order designated at the time of their election, shall perform
the duties of the President and Chief Executive Officer and when so acting shall
have all the powers of and be subject to all the restrictions upon the President
and Chief Executive Officer. Any Vice President may sign with the Secretary or
Assistant Secretary certificates for shares of the Corporation. Any Vice
President shall perform such other duties as are incident to the office of Vice
President or as may be prescribed from time to time by the Board of Directors or
the President and Chief Executive Officer.
SECTION 4.7. Secretary. The Secretary shall: (i) keep the minutes of
the shareholders and Board of Directors meetings in one or more books provided
for that purpose, (ii) see that all notices are duly given in accordance with
the provisions of the By-Laws or as required by law, (iii) be custodian of the
Corporation's records and of the seal of the Corporation, (iv) see that the seal
of the Corporation is affixed to all appropriate documents the execution of
which on behalf of the Corporation under its seal is duly authorized, (v) keep a
register of the address of each shareholder which shall be furnished to the
Secretary by such shareholder and (vi) perform all duties incident to the office
of Secretary and such other duties as may be prescribed from time to time by the
Board of Directors or the President and Chief Executive Officer.
SECTION 4.8. Treasurer. The Treasurer shall: (i) have charge and
custody of and be responsible for all funds and securities of the Corporation,
(ii) 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, and (iii) in general perform all of the duties incident to the
office of Treasurer and have such other duties and exercise such other authority
as from time to time may be delegated or assigned by the Board of Directors or
the President and Chief Executive Officer.
SECTION 4.9. Assistant Secretaries and Assistant Treasurers. An
Assistant Secretary, if any, when authorized by the Board of Directors, may sign
with the President and Chief Executive Officer or any Vice President
certificates for shares of the Corporation, the issuance of which shall have
been authorized by a resolution of the Board of Directors. An Assistant
Treasurer, if any, shall, if required by the Board of Directors, give bonds for
the faithful discharge of his 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 as shall be assigned to them
by the Board of Directors, the President and Chief Executive Officer or the
Secretary or the Treasurer, respectively.
SECTION 4.10. Salaries. The salaries of the officers shall be fixed
from time to time by the Board of Directors or a committee authorized by the
Board to fix the same, and no officer shall be prevented from receiving such
salary by reason of the fact that he is also a director of the Corporation or a
member of such committee.
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ARTICLE V. CONTRACTS; VOTING OF STOCK IN OTHER CORPORATIONS
SECTION 5.1. Contracts. The Board of Directors may authorize any
officer or officers, committee, or any agent or agents to enter into any
contract or execute and deliver any instrument in the name of and on behalf of
the Corporation, and such authorization may be general or confined to specific
instances.
SECTION 5.2. Voting of Stock in Other Corporations. The Board of
Directors by resolution shall from time to time designate one or more persons to
vote all stock held by this Corporation in any other corporation or entity, may
designate such persons in the alternative and may empower them to execute
proxies to vote in their stead. In the absence of any such designation by the
Board of Directors, the President and Chief Executive Officer shall be
authorized to vote any stock held by the Corporation or execute proxies to vote
such stock.
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 6.1. Certificates for Shares. Shares of the Corporation may be
issued in certificated or uncertificated form. Such shares shall be in the form
determined by, or under the authority of a resolution of, the Board of
Directors, which shall be consistent with the requirements of the Wisconsin
business corporation law.
(a) Certificated Shares. Shares represented by certificates
shall be signed by the President and Chief Executive Officer or a Vice
President and by the Secretary or an Assistant Secretary. The validity
of a share certificate is not affected if a person who signed the
certificate no longer holds office when the certificate is issued. All
certificates for shares shall be consecutively numbered or otherwise
identified. The name and address of the person to whom shares 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 that
in case of a lost, destroyed or mutilated certificate a new one may be
issued upon such terms and indemnity to the Corporation as the Board of
Directors may prescribe.
(b) Uncertificated Shares. Shares may also be issued in
uncertificated form. Within a reasonable time after issuance or
transfer of such shares, the Corporation shall send the shareholder a
written statement of the information required on share certificates
under the Wisconsin business corporation law, including: (1) the name
of the Corporation; (2) the name of person to whom shares were issued;
(3) the number and class of shares and the designation of the series,
if any, of the shares issued; and (4) either a summary of the
designations, relative rights, preferences and limitations, applicable
to each class, and 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 the Corporation will furnish the information
specified in this subsection without charge upon the written request of
the shareholder.
SECTION 6.2. Transfer of Shares. Transfer of shares of the Corporation
shall be made only on the stock transfer books of the Corporation by the holder
of record of such shares, or his or her legal representative, who shall furnish
proper evidence of authority to transfer or by an attorney thereunto authorized
by power of attorney duly executed and filed with the Secretary of the
Corporation, and on surrender for cancellation of the certificate for such
shares, if any. The person in whose name shares stand on the books and records
of the Corporation shall be deemed by the Corporation to be the owner thereof
for all purposes, except as otherwise required by the Wisconsin business
corporation law.
SECTION 6.3. 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 they may deem
expedient concerning the issue, transfer and registration of shares of the
Corporation represented in certificated or uncertificated form, including the
appointment or designation of one or more stock transfer agents and one or more
stock registrars.
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ARTICLE VII. INDEMNIFICATION; INSURANCE
SECTION 7.1. Indemnity of Directors, Officers, Employees and
Designated Agents.
(a) Definitions to Indemnification and Insurance Provisions.
(1) "Director, Officer, Employee or Agent" means any
of the following: (i) A natural person who is or was a
director, officer, employee or agent of the Corporation; (ii)
A natural person who, while a director, officer, employee or
agent of the Corporation, is or was serving either pursuant to
the Corporation's specific request or as a result of the
nature of such person's duties to the Corporation as a
director, officer, partner, trustee, member of any governing
or decision making committee, employee or agent of another
corporation or foreign corporation, partnership, joint
venture, trust or other enterprise; (iii) A natural person
who, while a director, officer, employee or agent of the
Corporation, is or was serving an employee benefit plan
because his or her duties to the Corporation also impose
duties on, or otherwise involve services by, the person to the
plan or to participants in or beneficiaries of the plan; or
(iv) Unless the context requires otherwise, the estate or
personal representative of a director, officer, employee or
agent. Notwithstanding the foregoing, an agent falls within
the foregoing definition only upon a resolution of the Board
of Directors or committee appointed thereby that such agent
shall be entitled to the indemnification provided herein.
(2) "Liability" means the obligation to pay a
judgment, penalty, assessment, forfeiture or fine, including
an excise tax assessed with respect to an employee benefit
plan, the agreement to pay any amount in settlement of a
Proceeding (whether or not approved by a court order), and
reasonable expenses and interest related to the foregoing.
(3) "Party" means a natural person who was or is, or
who is threatened to be made, a named defendant or respondent
in a Proceeding.
(4) "Proceeding" means any threatened, pending or
completed civil, criminal, administrative or investigative
action, suit, arbitration or other proceeding, whether formal
or informal (including but not limited to any act or failure
to act alleged or determined to have been negligent, to have
violated the Employee Retirement Income Security Act of 1974,
or to have violated Section 180.0833 of the Wisconsin
Statutes, or any successor thereto, regarding improper
dividends, distributions of assets, purchases of shares of the
Corporation, or loans to officers), which involves foreign,
federal, state or local law and which is brought by or in the
right of the Corporation or by any other person or entity.
(5) "Expenses" means all reasonable fees, costs,
charges, disbursements, attorneys' fees and any other expenses
incurred in connection with a Proceeding.
(b) Indemnification of Officers, Directors, Employees and
Agents.
(1) The Corporation shall indemnify a Director,
Officer, Employee or Agent to the extent he or she has been
successful on the merits or otherwise in the defense of any
Proceeding, for all reasonable Expenses in a Proceeding if the
Director, Officer, Employee or Agent was a Party because he or
she is a Director, Officer, Employee or Agent of the
Corporation.
(2) In cases not included under subsection (1), the
Corporation shall indemnify a Director, Officer, Employee or
Agent against Liability and Expenses incurred in a Proceeding
to which the Director, Officer, Employee or Agent was a Party
because he or she is a Director, Officer, Employee or Agent of
the Corporation, unless it is determined by final judicial
adjudication that such person breached or failed to perform a
duty owed to the Corporation which constituted any of the
following:
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(i) A willful failure to deal fairly with
the Corporation or its shareholders in connection
with a matter in which the Director, Officer,
Employee or Agent has a material conflict of
interest;
(ii) A violation of criminal law, unless the
Director, Officer, Employee or Agent had reasonable
cause to believe his or her conduct was lawful or no
reasonable cause to believe his or her conduct was
unlawful;
(iii) A transaction from which the
Director, Officer, Employee or Agent derived an
improper personal profit; or
(iv) Willful misconduct.
(3) Indemnification under this Section 7.1 is not
required to the extent the Director, Officer, Employee or
Agent has previously received indemnification or allowance of
expenses from any person or entity, including the Corporation,
in connection with the same Proceeding.
(4) Indemnification required under subsection (b) (1)
shall be made within 10 days of receipt of a written demand
for indemnification. Indemnification required under subsection
(b) (2) shall be made within 30 days of receipt of a written
demand for indemnification.
(5) Upon written request by a Director, Officer,
Employee or Agent who is a Party to a Proceeding, the
Corporation shall pay or reimburse his or her reasonable
Expenses as incurred if the Director, Officer, Employee or
Agent provides the Corporation with all of the following:
(i) A written affirmation of his or her
good faith belief that he or she is entitled to
indemnification under Section 7.1; and
(ii) A written undertaking, executed
personally or on his or her behalf, to repay all
amounts advanced without interest to the extent that
it is ultimately determined that indemnification
under Section 7.1(b)(2) is prohibited. The
undertaking under this subsection shall be accepted
without reference to the ability of the Director,
Officer, Employee or Agent to repay the allowance.
The undertaking shall be unsecured.
(c) Determination that Indemnification is Proper.
(1) Unless provided otherwise by a written agreement
between the Director, Officer, Employee or Agent and the
Corporation, determination of whether indemnification is
required under subsection (b) shall be made by one of the
following methods, which in the case of a Director or Officer
seeking indemnification shall be selected by such Director or
Officer: (i) by a majority vote of a quorum of the Board of
Directors consisting of directors who are not at the time
parties to the same or related proceedings or, if a quorum of
disinterested directors cannot be obtained, by a majority vote
of a committee duly appointed by the Board of Directors (which
appointment by the Board may be made by directors who are
parties to the proceeding) consisting solely of two or more
directors who are not at the time parties to the same or
related proceedings, (ii) by a panel of three arbitrators
consisting of (a) one arbitrator selected by a quorum of the
Board of Directors or its committee constituted as required
under (i), above, or, if unable to obtain such a quorum or
committee, by a majority vote of the full Board of Directors,
including directors who are parties to the same or related
proceedings, (b) one arbitrator selected by the director or
officer seeking indemnification and (c) one arbitrator
selected by the other two arbitrators, (iii) by an affirmative
vote of shareholders as provided under Section 2.9, except
that shares owned by, or voted under the control of, persons
who are at the time parties to the same or related
proceedings, whether as plaintiffs or defendants or in any
other capacity, may not be voted in making the
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determination, or (iv) by a court of competent jurisdiction as
permitted under the Wisconsin business corporation law;
provided, however, that with respect to any additional right
to indemnification permissible under the Wisconsin business
corporation law and granted by the Corporation, the
determination of whether such additional right of
indemnification is required shall be made by any method
permissible under the Wisconsin business corporation law, as
such methods may be limited by the grant of such additional
right to indemnification.
(2) A Director, Officer, Employee or Agent who seeks
indemnification under this Section 7.1 shall make a written
request to the Corporation. As a further precondition to any
right to receive indemnification, the writing shall contain a
declaration that the Corporation shall have the right to
exercise all rights and remedies available to such Director,
Officer, Employee or Agent against any other person,
corporation, foreign corporation, partnership, joint venture,
trust or other enterprise. arising out of, or related to, the
Proceeding which resulted in the Liability and the Expense for
which such Director, Officer, Employee or Agent is seeking
indemnification, and that the Director, Officer, Employee or
Agent is hereby deemed to have assigned to the Corporation all
such rights and remedies.
(d) Insurance. The Corporation shall have the power to
purchase and maintain insurance on behalf of any person who is a
Director, Officer, Employee or Agent against any Liability asserted
against or incurred by the individual in any such capacity or arising
out of his status as such, regardless of whether the Corporation is
required or authorized to indemnity or allow expenses to the individual
under this Section 7.1.
(e) Severability. The provisions of this Section 7.1 shall not
apply in any circumstance where a court of competent jurisdiction
determines that indemnification would be invalid as against public
policy, but such provisions shall not apply only to the extent that
they are invalid as against public policy and shall otherwise remain in
full force and effect.
(f) Limitation or Expansion of Indemnification. The right to
indemnification under this Section 7.1 may be limited or reduced only
by subsequent affirmative vote of not less than two-thirds of the
Corporation's outstanding capital stock entitled to vote on such
matters. Any limitation or reduction in the right to indemnification
may only be prospective from the date of such vote. The Board of
Directors, however, shall have the authority to expand the
indemnification permitted under this Section 7.1 to the fullest extent
permissible under the Wisconsin business corporation law as in effect
on the date of any such resolution with or without further amendment to
this Section 7.1.
ARTICLE VIII. AMENDMENTS
SECTION 8.1. Amendment by the Board of Directors. The By-Laws of the
Corporation may be amended or repealed by the Board of Directors unless any of
the following apply:
(a) The Articles of Incorporation, the particular by-law or
the Wisconsin business corporation law reserve this power exclusively
to the shareholders in whole or part;
(b) The shareholders in adopting, amending, or repealing a
particular by-law provide expressly within the by-law that the Board of
Directors may not amend, repeal or readopt that by-law; or
(c) The by-law fixes a greater or lower quorum requirement or
greater voting requirement for shareholders.
Action by the Board of Directors to adopt or amend a by-law that changes the
quorum or voting requirement for the Board of Directors must meet the same
quorum requirement and be adopted by the same vote required to take action under
the quorum and voting requirement then in effect.
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SECTION 8.2 . Amendment by the Corporation's Shareholders. The
Corporation's shareholders may amend or repeal the Corporation's By-Laws or
adopt new by-laws even though the Board of Directors may also amend or repeal
the Corporation's By-Laws or adopt new by-laws. The adoption or amendment of a
by-law that adds, changes or deletes a greater or lower quorum requirement or a
greater voting requirement for shareholders or the Board of Directors must meet
the same quorum and voting requirement then in effect.
ARTICLE IX. CORPORATE SEAL
SECTION 9.1. Corporate Seal. The Board of Directors may provide for a
corporate seal which may be circular in form and have inscribed thereon any
designation including the name of the corporation, Wisconsin as the state of
incorporation, and the words "Corporate Seal." Any instrument executed in the
corporate name by the proper officers of the Corporation under any seal,
including the words "Seal," "Corporate Seal" or similar designation, is sealed
even though the corporate seal is not used.
ARTICLE X. EMERGENCY BY-LAWS
SECTION 10.1. Emergency By-Laws. Unless the Articles of Incorporation
provide otherwise, the following provisions of this Article X shall be effective
during an "Emergency," which is defined as a catastrophic event that prevents a
quorum of the Corporation's directors from being readily assembled.
SECTION 10.2. Notice of Board Meetings. During an Emergency, any one
member of the Board of Directors or any one of the following officers: Chairman
of the Board, President and Chief Executive Officer, any Vice-President or
Secretary, may call a meeting of the Board of Directors. Notice of such meeting
need be given only to those directors whom it is practicable to reach, and may
be given in any practical manner, including by publication or radio. Such notice
shall be given at least six hours prior to commencement of the meeting.
SECTION 10.3. Temporary Directors and Quorum. One or more officers of
the Corporation present at the Emergency meeting of the Board of Directors, as
is necessary to achieve a quorum, shall be considered to be directors for the
meeting, and shall so serve in order of rank, and within the same rank, in order
of seniority. In the event that less than a quorum (as determined by Section
3.11) of the directors are present (including any officers who are to serve as
directors for the meeting), those directors present (including the officers
serving as directors) shall constitute a quorum.
SECTION 10.4. Actions Permitted To Be Taken. The board as constituted
in Section 10.3, and after notice as set forth in Section 10.2 may:
(a) Officers' Powers. Prescribe emergency powers to any
officers of the Corporation;
(b) Delegation of Any Power. Delegate to any officer or
director, any of the powers of the Board of Directors;
(c) Lines of Succession. Designate lines of succession of
officers and agents, in the event that any of them are unable to
discharge their duties;
(d) Relocate Principal Place of Business. Relocate the
principal place of business, or designate successive or simultaneous
principal places of business; and
(e) All Other Action. Take any and all other action,
convenient, helpful, or necessary to carry on the business of the
Corporation.
Corporate action taken in good faith in accordance with the emergency by-laws
binds the Corporation and may not be used to impose liability on any of the
Corporation's directors, officers, employees or agents.
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