0000785786false2024FY9/2800007857862024-02-142024-02-14
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________________________________________________________________________________________________________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
____________________________________________________________________________________________________________________________________
Date of Report (Date of earliest event reported): February 14, 2024
____________________________________________________________________________________________________________________________________
PLEXUS CORP.
(Exact name of registrant as specified in its charter)
____________________________________________________________________________________________________________________________________
| | | | | | | | | | | | | | |
| Wisconsin | | 001-14423 | | 39-1344447 |
(State or other jurisdiction
of incorporation) | | (Commission
File Number) | | (IRS Employer
Identification No.) |
One Plexus Way
Neenah, Wisconsin 54957
(Address of principal executive offices) (Zip Code)
Telephone Number (920) 969-6000
(Registrant’s telephone number, including Area Code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
| | | | | | | | |
| Title of each class | Trading Symbol | Name of each exchange on which registered |
| Common Stock, $0.01 par value | PLXS | The Nasdaq Global Select Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
On February 14, 2024, at the Plexus Corp. (the "Company") 2024 annual meeting of shareholders (the "Annual Meeting"), the Company's shareholders approved the Plexus Corp. 2024 Omnibus Incentive Plan (the "2024 Plan"), which had previously been approved by the Company's Board of Directors (the "Board"), subject to shareholder approval. Additional information regarding the results of the Annual Meeting is set forth below under Item 5.07 of this Current Report on Form 8-K.
The Company previously maintained the Plexus Corp. 2016 Omnibus Incentive Plan (the "2016 Plan"). Effective upon shareholder approval at the Annual Meeting, the 2024 Plan superseded and replaced the 2016 Plan, and the 2016 Plan was terminated. No new awards will be granted under the 2016 Plan. Awards currently outstanding under the 2016 Plan will remain outstanding under the 2016 Plan in accordance with their terms.
The 2024 Plan is described in detail in the Company's definitive proxy statement, filed with the Securities and Exchange Commission on December 16, 2023, under the caption "Proposal 4 - Approval of the Plexus Corp. 2024 Omnibus Incentive Plan", which description is incorporated herein by reference. A copy of the 2024 Plan is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference. The description of the 2024 Plan set forth above does not purport to be complete and is qualified in its entirety by reference to such materials.
Item 5.03 Amendment to Articles of Incorporation or Bylaws; Change in Fiscal Year
On February 14, 2024, the Board approved an amendment and restatement of the Company’s Amended and Restated Bylaws (the “Bylaws”) to (a) amend Article II, Section 2.13 of the Bylaws regarding advance notice provisions, including to align certain provisions with the Securities and Exchange Commission’s guidance regarding universal proxies pursuant to Rule 14a-19 promulgated under the Securities Exchange Act of 1934, as amended; and (b) change the retirement age for directors to 75.
This description of the Bylaws does not purport to be complete and is qualified in its entirety by reference to the full text of the Bylaws, which are filed as Exhibit 3.1 to this Current Report on Form 8-K and are incorporated herein by reference.
Item 5.07 Submission of Matters to a Vote of Security Holders
The Company held its Annual Meeting on February 14, 2024. Below are the voting results from the Annual Meeting:
Proposal 1: The 10 individuals nominated by the Board for election as directors to serve until the Company's next annual meeting were elected by the Company’s shareholders with the following votes:
| | | | | | | | | | | | | | |
| Director’s Name | | Authority Granted to Vote “For” | | Authority Withheld |
| Joann M. Eisenhart | | 24,763,280 | | | 354,241 | |
| Dean A. Foate | | 24,589,379 | | | 528,142 | |
| Rainer Jueckstock | | 24,464,565 | | | 652,956 | |
| Todd P. Kelsey | | 24,663,298 | | | 454,223 | |
| Randy J. Martinez | | 24,839,476 | | | 278,045 | |
| Joel Quadracci | | 24,598,318 | | | 519,203 | |
| Karen M. Rapp | | 24,834,322 | | | 283,199 | |
| Paul A. Rooke | | 24,753,247 | | | 364,274 | |
| Michael V. Schrock | | 23,495,002 | | | 1,622,519 | |
| Jennifer Wuamett | | 24,625,660 | | | 491,861 | |
***
Broker non-votes: 1,060,440 in the case of each director
Proposal 2: The advisory proposal to approve the compensation of the Company’s named executive officers, as disclosed in “Compensation Discussion and Analysis” and “Executive Compensation” in the proxy statement for the Annual Meeting, received the following votes:
For: 21,456,264 Against: 3,619,038 Abstain: 42,219
Broker non-votes: 1,060,440
Proposal 3: The Company’s shareholders ratified the selection of PricewaterhouseCoopers LLP as the Company’s independent auditors for fiscal 2024 with the following votes:
For: 24,965,107 Against: 1,194,443 Abstain: 18,411
Broker non-votes: 0
Proposal 4: The Company’s shareholders approved the Plexus Corp. 2024 Omnibus Incentive Plan with the following votes:
For: 23,408,724 Against: 1,686,682 Abstain: 22,115
Broker non-votes: 1,060,440
Item 8.01 Other Events
As a result of the amendments to Article II of the Bylaws as discussed in Item 5.02 herein, to comply with the Securities and Exchange Commission's universal proxy rules, shareholders who intend to solicit proxies in support of director nominees other than the Company's nominees must provide the additional information required by Rule 14a-19(b) under the Securities Exchange Act of 1934, as amended, to the Secretary of the Company by October 31, 2024.
Item 9.01 Financial Statements and Exhibits
(d) The following exhibits are filed herewith:
| | | | | | | | |
| Exhibit Number | | Description |
| 3.1 | | |
| 10.1 | | |
| 104 | | Cover Page Interactive Data File (the cover page tags are embedded within the Inline XBRL document) |
* * * * *
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 hereunto duly authorized.
| | | | | | | | |
| Date: February 15, 2024 | | PLEXUS CORP. |
| | (Registrant) |
| | By: /s/ Angelo M. Ninivaggi |
| | Angelo M. Ninivaggi |
| | Executive Vice President, Chief Administrative Officer, General Counsel and Secretary |
AMENDED AND RESTATED BYLAWS
OF
PLEXUS CORP.
(a Wisconsin corporation)
(as amended through February 14, 2024)
ARTICLE I. OFFICES
1.01. Principal and Business Offices. The corporation may have such principal and other business offices, either within or without the State of Wisconsin, as the Board of Directors may designate or as the business of the corporation may require from time to time.
1.02. Registered Office. The registered office of the corporation required by the Wisconsin Business Corporation Law to be maintained in the State of Wisconsin may be, but need not be, identical with the principal office in the State of Wisconsin, and the address of the registered office may be changed from time to time by the Board of Directors. The business office of the registered agent of the corporation shall be identical to such registered office.
ARTICLE II. SHAREHOLDERS
2.01. Annual Meeting. The annual meeting of the shareholders of the corporation (the “Annual Meeting”) shall be held on the third Wednesday in the month of February of each year at such time or on such other date and time as may be fixed by or under the authority of the Board of Directors, for the purpose of electing directors and for the transaction of such other business as may properly come before the Annual Meeting in accordance with Section 2.13 of these bylaws. If the day fixed for the Annual Meeting shall be a legal holiday in the State of Wisconsin, then such meeting shall be held on the next succeeding Business Day (as defined herein). If the election of directors shall not be held on the day designated herein, or fixed as herein provided, for any Annual Meeting, or at any adjournment or postponement thereof, the Board of Directors shall cause the election to be held at a special meeting of the shareholders as soon thereafter as conveniently may be. In fixing a meeting date for any Annual Meeting, the Board of Directors may consider such factors as it deems relevant within the good faith exercise of its business judgment.
2.02. Special Meetings.
Article IWho May Call a Special Meeting. A special meeting of the shareholders (“Special Meeting”) may be called only by (i) the Chair, (ii) the Chief Executive Officer or (iii) the Board of Directors and shall be called by the Chair or the Chief Executive Officer upon the demand, in accordance with this Section 2.02, of the holders of record of shares representing at least 10% of all the votes entitled to be cast on any issues proposed to be considered at the Special Meeting.
(a)Demand Record Date. In order that the corporation may determine the shareholders entitled to demand a Special Meeting, the Board of Directors may fix a record date to determine the shareholders entitled to make such a demand (the “Demand Record Date”). The Demand Record Date shall not precede the date upon which the resolution fixing the Demand Record Date is adopted by the Board of Directors and shall not be more than 10 days after the date upon which the resolution fixing the Demand Record Date is adopted by the Board of Directors. Any shareholder of record seeking to have shareholders demand a Special Meeting shall, by sending written notice to the Secretary at the principal offices of the corporation by hand or by certified or registered mail, return receipt requested, request the Board of Directors to fix a Demand Record Date. The Board of Directors shall promptly, but in all events within 10 days after the date on which a valid request to fix a Demand Record Date is received by the Secretary, adopt a resolution fixing the Demand Record Date and shall make a public announcement of such Demand Record Date. If no Demand
Record Date has been fixed by the Board of Directors within 10 days after the date on which such request is received by the Secretary, the Demand Record Date shall be the 10th day after the first day on which a valid written request to set a Demand Record Date is received by the Secretary. To be valid, such written request shall set forth the purpose or purposes for which the Special Meeting is to be held, shall be signed by one or more shareholders of record and by the beneficial owner or owners, if any, on whose behalf the request is made, shall bear the date of signature of each such shareholder and any such beneficial owner and shall set forth all information about each such shareholder and about any such beneficial owner that would be required to be set forth in a shareholder’s notice described in paragraph (a)(ii) of Section 2.13 of these bylaws.
(b)Shareholder Demand for a Special Meeting. In order for a shareholder or shareholders to demand a Special Meeting, a written demand or demands for a Special Meeting by the holders of record as of the Demand Record Date of shares representing at least 10% of all the votes entitled to be cast on any issue proposed to be considered at the Special Meeting must be delivered to the Secretary at the principal offices of the corporation. To be valid, each written demand by a shareholder for a Special Meeting shall set forth the specific purpose or purposes for which the Special Meeting is to be held (which purpose or purposes shall be limited to the purpose or purposes set forth in the written request to set a Demand Record Date received by the corporation pursuant to paragraph (b) of this Section 2.02), shall be signed by one or more persons who as of the Demand Record Date are shareholders of record and by the beneficial owners, if any, on whose behalf the demand is made, shall bear the date of signature of each such shareholder and any such beneficial owner, and shall set forth the name and address of each such shareholder, as they appear in the corporation’s books, and any beneficial owner signing such demand and the class and number of shares of the corporation which are owned of record and/or beneficially by each such shareholder and any beneficial owner, shall be sent to the Secretary by hand or by certified or registered mail, return receipt requested, and shall be received by the Secretary within 70 days after the Demand Record Date.
(c)Costs of a Special Meeting. The corporation shall not be required to call a Special Meeting upon shareholder demand unless, in addition to the documents required by paragraph (c) of this Section 2.02, the Secretary receives a written agreement signed by each Soliciting Shareholder (as defined herein), pursuant to which each Soliciting Shareholder, jointly and severally, agrees to pay the corporation’s costs of holding the Special Meeting, including the costs of preparing and mailing proxy materials for the corporation’s own solicitation, provided that if each of the resolutions introduced by any Soliciting Shareholder at such meeting is adopted, and each of the individuals nominated by or on behalf of any Soliciting Shareholder for election as director at such meeting is elected, then the Soliciting Shareholders shall not be required to pay such costs. For purposes of these bylaws, the following terms shall have the meanings set forth below:
(i)“Affiliate” of any Person (as defined herein) shall mean any Person controlling, controlled by or under common control with such first Person.
(ii)“Business Day” shall mean any day other than a Saturday, a Sunday or any day on which banking institutions in the State of Wisconsin are authorized or obligated to close.
(iii)“Participant” shall have the meaning assigned to such term in paragraphs (a)(iii), (iv), (v) and (vi) of Instruction 3 to Item 4 of Schedule 14A as promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
(iv)“Person” shall mean any individual, firm, corporation, partnership, joint venture, association, trust, unincorporated organization or other entity.
(v)“Proxy” shall have the meaning assigned to such term in Rule 14a-1 promulgated under the Exchange Act (and, in such Rule 14a-1, a consent or authorization shall be interpreted to include a signature or signature on a demand for purposes of construing all of the definitions in this Section 2.02(d)).
(vi)“Solicitation” shall have the meaning assigned to such term in Rule 14a-1 promulgated under the Exchange Act.
(vii)“Soliciting Shareholder” shall mean, with respect to any Special Meeting demanded by a shareholder or shareholders, any of the following Persons:
(A)if the number of shareholders signing the demand or demands for a meeting delivered to the corporation pursuant to paragraph (c) of this Section 2.02 is 10 or fewer, each shareholder signing any such demand; or
(B)if the number of shareholders signing the demand or demands for a meeting delivered to the corporation pursuant to paragraph (c) of this Section 2.02 is more than 10, each Person who either (I) was a Participant in any Solicitation of such demand or demands or (II) at the time of the delivery to the Secretary at the principal offices of the corporation of the documents described in paragraph (c) of this Section 2.02, had engaged or intends to engage in any Solicitation of Proxies for use at such Special Meeting (other than a Solicitation of Proxies on behalf of the corporation).
A “Soliciting Shareholder” shall also mean each Affiliate of a Soliciting Shareholder described in clause (A) or (B) above who is a member of such Soliciting Shareholder’s “group” for purposes of Rule 13d-5(b) under the Exchange Act, and any other Affiliate of such a Soliciting Shareholder, if a majority of the directors then in office determines, reasonably and in good faith, that such Affiliate should be required to sign the written notice described in Section 2.02(c) and/or the written agreement described in this Section 2.02(d) to prevent the purposes of this Section 2.02 from being evaded.
(d)Time of Special Meeting. Except as provided in the following sentence, any Special Meeting shall be held at such hour and day as may be designated by whichever of the Chair, the Chief Executive Officer or the Board of Directors shall have called such meeting. In the case of any Special Meeting called by the Chair or the Chief Executive Officer upon the demand of shareholders (a “Demand Special Meeting”), such meeting shall be held at such hour and day as may be designated by the Board of Directors; provided, however, that the date of any Demand Special Meeting shall be not more than 70 days after the Meeting Record Date (as defined in Section 2.05 of these bylaws); and provided further that in the event that the directors then in office fail to designate an hour and date for a Demand Special Meeting within 10 days after the date that valid written demands for such meeting by the holders of record as of the Demand Record Date of shares representing at least 10% of all the votes entitled to be cast on any issue proposed to be considered at the Special Meeting are delivered to the corporation (the “Delivery Date”), then such meeting shall be held at 10:00 A.M. (Central time) on the 100th day after the Delivery Date or, if such 100th day is not a Business Day, on the first preceding Business Day. In fixing a meeting date for any Special Meeting, the Chair, the Chief Executive Officer or the Board of Directors may consider such factors as he, she or it deems relevant within the good faith exercise of his or her or its business judgment, including, without limitation, the nature of the action proposed to be taken, the facts and circumstances surrounding any demand for such meeting, and any plan of the Board of Directors to call an Annual Meeting or a Special Meeting for the conduct of related business.
(e)Review of Demand for a Special Meeting. The corporation may engage nationally or regionally recognized independent inspectors of elections to act as an agent of the corporation for the purpose of promptly performing a ministerial review of the validity of any purported written demand or demands for a Special Meeting received by the Secretary. For the purpose of permitting the inspectors to perform such review, no purported demand shall be deemed to have been delivered to the corporation until the earlier of (i) five Business Days following receipt by the Secretary of such purported demand and (ii) such date as the independent inspectors certify to the corporation that the valid demands received by the Secretary represent at least 10% of all the votes entitled to be cast on each issue proposed to be considered at the Special Meeting. Nothing contained in this paragraph shall in any way be construed to suggest or imply that the Board of Directors or any shareholder shall not be entitled to contest the validity of any demand, whether during or after such five Business Day period, or to take any other action (including, without limitation, the commencement, prosecution or defense of any litigation with respect thereto).
2.03. Place of Meeting. Subject to Section 2.14, the Board of Directors, the Chair or the Chief Executive Officer may designate any place, either within or without the State of Wisconsin, as the place of meeting for any Annual Meeting or for any Special Meeting, or for any postponement thereof. If no designation is made, the place of meeting shall be the principal business office of the corporation in the State of Wisconsin. Any meeting may be adjourned to reconvene at any place designated by vote of the Board of Directors or by the Chair or the Chief Executive Officer.
2.04. Notice of Meeting. Written notice stating the place (if any), means of remote communications (if any), day and hour of any Annual Meeting or Special Meeting shall be delivered not
less than 10 (unless a longer period is required by the Wisconsin Business Corporation Law) nor more than 70 days before the date of such meeting by mail, by or at the direction of the Secretary, to each shareholder of record entitled to vote at such meeting and to other shareholders as may be required by the Wisconsin Business Corporation Law. In the event of any Demand Special Meeting, such notice of meeting shall be sent prior to the later of (x) the two days after the Meeting Record Date for such Demand Special Meeting or (y) 30 days after the Delivery Date. For purposes of this Section 2.04, notice by “electronic transmission” (as defined in the Wisconsin Business Corporation Law) is written notice. Written notice pursuant to this Section 2.04 shall be deemed to be effective (a) when mailed, if mailed postpaid and addressed to each shareholder at his or her address as it appears on the stock record books of the corporation, or (b) when electronically transmitted to the shareholder in a manner authorized by the shareholder. Unless otherwise required by the Wisconsin Business Corporation Law, a notice of an Annual Meeting need not include a description of the purpose for which the meeting is called. In the case of any Special Meeting, (a) the notice of meeting shall describe any business that the Board of Directors shall have theretofore determined to bring before the meeting and (b) in the case of a Demand Special Meeting, the notice of meeting (i) shall describe any business set forth in the statement of purpose of the demands received by the corporation in accordance with Section 2.02 of these bylaws and (ii) shall contain all of the information required in the notice received by the corporation in accordance with Section 2.13(b) of these bylaws. If an Annual Meeting or Special Meeting is adjourned to a different date, time or place, the corporation shall not be required to give notice of the new date, time, place (if any), or means of remote communication (if any) if the new date, time, place or means of remote communication is announced at the meeting before adjournment; provided, however, that if a new Meeting Record Date for an adjourned meeting is or must be fixed, the corporation shall give notice of the adjourned meeting to persons who are shareholders as of the new Meeting Record Date.
2.05. Fixing of Record Date. The Board of Directors may fix in advance a date not less than 10 days and not more than 70 days prior to the date of any Annual Meeting or Special Meeting as the record date for the determination of shareholders entitled to notice of, or to vote at, such meeting (the “Meeting Record Date”). In the case of any Demand Special Meeting, (i) the Meeting Record Date shall be not later than the 30th day after the Delivery Date and (ii) if the Board of Directors fails to fix the Meeting Record Date within 30 days after the Delivery Date, then the close of business on such 30th day shall be the Meeting Record Date. The shareholders of record on the Meeting Record Date shall be the shareholders entitled to notice of and to vote at the meeting. Except as provided by the Wisconsin Business Corporation Law for a court-ordered adjournment, a determination of shareholders entitled to notice of and to vote at any Annual Meeting or Special Meeting is effective for any adjournment of such meeting unless the Board of Directors fixes a new Meeting Record Date, which it shall do if the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting. The Board of Directors may also fix in advance a date as the record date for the purpose of determining shareholders entitled to take any other action or determining shareholders for any other purpose. Such record date shall be not more than 70 days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken. The record date for determining shareholders entitled to a distribution (other than a distribution involving a purchase, redemption or other acquisition of the corporation’s shares) or a share dividend is the close of business on the date on which the Board of Directors authorizes the distribution or share dividend, as the case may be, unless the Board of Directors fixes a different record date.
2.06. Shareholder Lists. After a Meeting Record Date has been fixed, the corporation shall prepare a list of the names of all of the shareholders entitled to notice of the meeting. The list shall be arranged by class or series of shares, if any, and show the address of and number of shares held by each shareholder. Such list shall be available for inspection by any shareholder, beginning two business days after notice of the meeting is given for which the list was prepared and continuing to the date of the meeting, at the corporation’s principal office or at a place identified in the
meeting notice in the city where the meeting will be held or on a reasonably accessible electronic network if the information required to gain access to the list is provided with the notice of the meeting. A shareholder or his or her agent may, on written demand, inspect and, subject to the limitations imposed by the Wisconsin Business Corporation Law, copy the list, during regular business hours and at his or her expense, during the period that it is available for inspection pursuant to this Section 2.06. The corporation shall make the shareholders’ list available at the meeting and any shareholder or his or her agent or attorney may inspect the list at any time during the meeting or any adjournment thereof. Refusal or failure to prepare or make available the shareholders’ list shall not affect the validity of any action taken at a meeting of shareholders. If the meeting is held solely by means of remote communication, then the list shall be open to the examination of any shareholder during the entire time of the meeting on a reasonably accessible electronic network, and the information required to access the list shall be provided with the notice of the meeting.
2.07. Quorum and Voting Requirements; Postponements; Adjournments.
(a)Quorum and Voting Requirements. Shares entitled to vote as a separate voting group may take action on a matter at any Annual Meeting or Special Meeting only if a quorum of those shares exists with respect to that matter. If the corporation has only one class of stock outstanding, such class shall constitute a separate voting group for purposes of this Section 2.07. Except as otherwise provided in the Articles of Incorporation, any by-law adopted under authority granted in the Articles of Incorporation, or the Wisconsin Business Corporation Law, a majority of the votes entitled to be cast on the matter shall constitute a quorum of the voting group for action on that matter. Once a share is represented for any purpose at any Annual Meeting or Special Meeting, other than for the purpose of objecting to holding the meeting or transacting business at the meeting, it is considered present for purposes of determining whether a quorum exists for the remainder of the meeting and for any adjournment of that meeting unless a new Meeting Record Date is or must be set for the adjourned meeting. If a quorum exists, except in the case of the election of directors, action on a matter shall be approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the Articles of Incorporation, any by-law adopted under authority granted in the Articles of Incorporation, or the Wisconsin Business Corporation Law requires a greater number of affirmative votes. Unless otherwise provided in the Articles of Incorporation, directors shall be elected by a plurality of the votes cast by the shares entitled to vote in the election of directors at any Annual Meeting or Special Meeting at which a quorum is present. For purposes of this Section 2.07(a), “plurality” means that the individuals with the largest number of votes are elected as directors up to the maximum number of directors to be chosen at the Annual Meeting or Special Meeting. Votes against a director candidate are not given legal effect and are not counted as votes cast in the election of directors.
(b)Postponement and Adjournment. The Board of Directors acting by resolution may postpone and reschedule any previously scheduled Annual Meeting or Special Meeting; provided, however, that a Demand Special Meeting shall not be postponed beyond the 100th day following the Delivery Date. Any Annual Meeting or Special Meeting may be adjourned from time to time, whether or not there is a quorum, (i) at any time, upon a resolution of shareholders if the votes cast in favor of such resolution by the holders of shares of each voting group entitled to vote on any matter theretofore properly brought before the meeting
exceed the number of votes cast against such resolution by the holders of shares of each such voting group or (ii) at any time prior to the transaction of any business at such meeting, by the Chair or pursuant to resolution of the Board of Directors. No notice of the time, place or means of remote communication of adjourned meetings need be given except as required by the Wisconsin Business Corporation Law. At any adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified.
2.08. Conduct of Meetings. The Chair, and in his or her absence the Chief Executive Officer, shall call any Annual Meeting or Special Meeting to order and shall act as chair of such meeting. In the absence of the Chair and the Chief Executive Officer, such duties shall be performed by the President. In the absence of the Chair, the Chief Executive Officer and the President, such duties shall be performed by a Vice President in the order provided under Section 4.09, or in their absence, by any person chosen by the shareholders present. The Secretary of the corporation shall act as secretary of all Annual Meetings and Special Meetings, but, in the absence of the Secretary, the presiding officer may appoint any other person to act as secretary of the meeting. The Board of Directors may, to the extent not prohibited by law, adopt by resolution such rules and regulations for the conduct of an Annual Meeting or Special Meeting as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the chair of the meeting shall have the right and authority to prescribe such rules, regulations or procedures and to do such acts as, in the judgment of the chair of the meeting, are appropriate for the proper conduct of an Annual Meeting or Special Meeting.
Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chair of the meeting, may to the extent not prohibited by law include, without limitation, the following: (a) the establishment of an agenda or order of business for the meeting; (b) rules and procedures for maintaining order at the meeting and the safety of those present; (c) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies (which shall be reasonable in number) or such other persons as the chair of the meeting shall determine; (d) restrictions on entry to the meeting after the time fixed for the commencement thereof; (e) limitations on the time allotted to questions or comments by participants; (f) rules and procedures regarding the execution of election ballots before or after the time fixed for the commencement of the meeting; (g) the appointment of an inspector of election or an officer or agent of the corporation authorized to tabulate votes; and (h) rules and procedures to facilitate the conduct of, and participation in, the meeting by electronic means.
2.09. Proxies. At any Annual Meeting or Special Meeting, a shareholder entitled to vote may vote in person or by proxy. A shareholder entitled to vote at any Annual Meeting or Special Meeting may authorize another person to act for the shareholder by appointing the person as a proxy. Any shareholder directly or indirectly soliciting proxies from other shareholders must use a proxy card color other than white, which shall be reserved for the exclusive use of the Board of Directors. The means by which a shareholder or the shareholder’s authorized officer, director, employee, agent or attorney-in-fact may authorize another person to act for the shareholder by appointing the person as proxy include:
(a)Appointment of a proxy in writing by signing or causing the shareholder’s signature to be affixed to an appointment form by any reasonable means, including, without limitation, by facsimile signature.
(b)Appointment of a proxy by transmitting or authorizing the transmission of an electronic transmission of the appointment to the person who will be appointed as proxy or to a proxy solicitation firm, proxy support service organization or like agent authorized to receive the transmission by the person who will be appointed as proxy. Every electronic transmission shall contain, or be accompanied by, information that can be used to reasonably determine that the shareholder transmitted or authorized the transmission of the electronic transmission. Any person charged with determining whether a shareholder transmitted or authorized the transmission of the electronic transmission shall specify the information upon which the determination is made.
(c)An appointment of a proxy is effective when a signed appointment form or an electronic transmission of the appointment is received by the inspector of election or the officer or agent of the corporation authorized to tabulate votes. Unless the appointment form or electronic transmission states that the proxy is irrevocable and the appointment is coupled with an interest, a proxy may be revoked at any time before it is voted, either by written notice filed with the Secretary or the secretary of the meeting or by oral notice given by the shareholder to the presiding officer during the meeting. The presence of a shareholder who has made an effective proxy appointment shall not of itself constitute a revocation. A proxy appointment is valid for eleven months unless a different period is expressly provided in the appointment. The Board of Directors, the Chair and the President each shall have the power and authority to make rules as to the validity and sufficiency of proxies.
2.10. Voting of Shares. Each outstanding share shall be entitled to one vote upon each matter submitted to a vote at any Annual Meeting or Special Meeting except to the extent that the voting rights of the shares of any class or classes are enlarged, limited or denied by the Articles of Incorporation or the Wisconsin Business Corporation Law.
2.11. Acceptance of Instruments Showing Shareholder Action. If the name signed on a vote, consent, waiver or proxy appointment corresponds to the name of a shareholder, the corporation, if acting in good faith, may accept the vote, consent, waiver or proxy appointment and give it effect as the act of a shareholder. If the name signed on a vote, consent, waiver or proxy appointment does not correspond to the name of a shareholder, the corporation, if acting in good faith, may accept the vote, consent, waiver or proxy appointment and give it effect as the act of the shareholder if any of the following apply:
(a)The shareholder is an entity and the name signed purports to be that of an officer or agent of the entity.
(b)The name purports to be that of a personal representative, administrator, executor, guardian or conservator representing the shareholder and, if the corporation requests, evidence of fiduciary status acceptable to the corporation is presented with respect to the vote, consent, waiver or proxy appointment.
(c)The name signed purports to be that of a receiver or trustee in bankruptcy of the shareholder and, if the corporation requests, evidence of this status acceptable to the corporation is presented with respect to the vote, consent, waiver or proxy appointment.
(d)The name signed purports to be that of a pledgee, beneficial owner, or attorney-in-fact of the shareholder and, if the corporation requests, evidence acceptable to the corporation of the signatory’s authority to sign for the shareholder is presented with respect to the vote, consent, waiver or proxy appointment.
(e)Two or more persons are the shareholders as co-tenants or fiduciaries and the name signed purports to be the name of at least one of the co-owners and the person signing appears to be acting on behalf of all co-owners.
The corporation may reject a vote, consent, waiver or proxy appointment if the Secretary or other officer or agent of the corporation who is authorized to tabulate votes, acting in good faith, has reasonable basis for doubt about the validity of the signature on it or about the signatory’s authority to sign for the shareholder.
2.12. Waiver of Notice by Shareholders. A shareholder may waive any notice required by the Wisconsin Business Corporation Law, the Articles of Incorporation or these bylaws before or after the date and time stated in the notice. The waiver shall be in writing and signed by the shareholder entitled to the notice, contain the same information that would have been required in the notice under applicable provisions of the Wisconsin Business Corporation Law (except that the time, place and / or means of remote communication of meeting need not be stated) and be delivered to the corporation for inclusion in the corporate records. A shareholder’s attendance at any Annual Meeting or Special Meeting, in person (including via participation by remote communication) or by proxy, waives objection to all of the following: (a) lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting or promptly upon arrival objects to holding the meeting or transacting business at the meeting; and (b) consideration of a particular matter at the meeting that is not within the purpose described in the meeting notice, unless the shareholder objects to considering the matter when it is presented.
2.13. Notice of Shareholder Business and Nomination of Directors.
(a)Annual Meetings.
(i)Nominations of persons for election to the Board of Directors and the proposal of business to be considered by the shareholders may be made at an Annual Meeting (A) pursuant to the corporation’s notice of meeting, (B) by or at the direction of the Board of Directors or (C) by any shareholder of the corporation who (1) is a shareholder of record at the time of giving of notice provided for in this Section 2.13, (2) is entitled to vote with respect to such nomination or other business at the meeting under the Articles of Incorporation and (3) complies with the notice procedures set forth in this Section 2.13 and with other requirements of applicable law.
(ii)For nominations or other business to be properly brought before an Annual Meeting by a shareholder pursuant to Section 2.13(a)(i)(C), the shareholder must have given timely notice thereof in writing to the Secretary. To be timely, a shareholder’s notice shall be received by the Secretary at the principal offices of the corporation not less than 45 days nor more than 70 days prior to the first annual anniversary of the date set forth in the corporation’s proxy statement for
the immediately preceding Annual Meeting as the date on which the corporation first mailed or intended to mail definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”). However, for all shareholder nominations or proposals (including the solicitation of proxies in support of nominees in accordance with Rule 14a-19 promulgated under the Exchange Act (“Rule 14a-19”), if the date for which the Annual Meeting is called is more than 30 days before or more than 30 days after the first annual anniversary of the immediately preceding Annual Meeting, then notice by the shareholder to be timely must be so delivered not earlier than the close of business on the 100th day prior to the date of such Annual Meeting and not later than the later of (A) the 75th day prior to the date of such Annual Meeting or (B) the 10th day following the day on which public announcement of the date of such Annual Meeting is first made. In no event shall the announcement of an adjournment of an Annual Meeting commence a new time period for the giving of a shareholder notice as described above. Such shareholder’s notice shall be signed by the shareholder of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: (I) the name and address of such shareholder (as they appear on the corporation’s books) and any such beneficial owner; (II) the class and number of shares of the corporation that are owned of record and/or beneficially by such shareholder and any such beneficial owner; (III) a representation that such shareholder is a holder of record of shares of the corporation entitled to vote under the Articles of Incorporation at such meeting with respect to such nomination or other business and intends to appear in person or by proxy at the meeting to make such nomination or introduce such other business; (IV) in the case of any proposed nomination for election or re-election as a director, (1) the name and residence address of the person or persons to be nominated, (2) a description of all arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, (3) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Regulation 14A under the Exchange Act, including any information that would be required to be included in a proxy statement filed pursuant to Regulation 14A had the nominee been nominated by the Board of Directors, (4) the written consent of each nominee to be named in a proxy statement and to serve as a director of the corporation if so elected and (5) for a shareholder soliciting proxies in support of nominees (other than those nominated by the Board of Directors), a representation that such shareholder and any such beneficial owner intend or are part of a group which intends to solicit proxies in support of the nominees in accordance with Rule 14a-19, including delivery of a proxy statement and form of proxy to solicit the holders of at least sixty-seven percent (67%) of the voting power of shares entitled to vote on the election of directors; (V)
in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed (including a showing of “cause” as required by Section 3.02 of these bylaws); and (VI) in the case of any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1) a brief description of the business desired to be brought before the meeting and, if such business includes a proposal to amend these bylaws, the language of the proposed amendment, (2) the reasons of such shareholder and any such beneficial owner for conducting such business at the meeting and (3) any material interest in such business of such shareholder and any such beneficial owner. In no event may such shareholder provide notice of proposed nominations for the election of directors with respect to a greater number of nominees than are subject to election by shareholders at the applicable meeting.
(iii)Notwithstanding anything in the second sentence of Section 2.13(a)(ii) to the contrary, if the number of directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for director or specifying the size of the increased Board of Directors made by the corporation at least 45 days prior to the Anniversary Date, then a shareholder’s notice required by this Section 2.13 shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be received by the Secretary at the principal offices of the corporation not later than the close of business on the 10th day following the day on which such public announcement is first made by the corporation.
(b)Special Meetings. Only such business shall be conducted at a Special Meeting as shall have been described in the notice of meeting sent to shareholders pursuant to Section 2.04 of these bylaws. Nominations of persons for election to the Board of Directors may be made at a Special Meeting at which directors are to be elected pursuant to such notice of meeting (i) by or at the direction of the Board of Directors or (ii) by any shareholder of the corporation who (A) is a shareholder of record at the time of giving of such notice of meeting, (B) is entitled to vote at the meeting and (C) complies with the notice procedures and disclosure requirements set forth in this Section 2.13. Any shareholder desiring to nominate persons for election to the Board of Directors at such a Special Meeting shall cause a written notice to be received by the Secretary at the principal offices of the corporation not earlier than 90 days prior to such Special Meeting and not later than the close of business on the later of (x) the 60th day prior to such Special Meeting and (y) the 10th day following the day on which public announcement is first made of the date of such Special Meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Such written notice shall be signed by the shareholder of record who intends to make the nomination and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: (A) the name and address, as they appear on the corporation’s books, of such shareholder and the beneficial owner or owners, if any, on whose behalf the nomination is made; (B) the class and number of shares of the corporation which are owned of record and/or
beneficially by such shareholder and any such beneficial owner; (C) a representation that such shareholder is a holder of record of shares of the corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to make the nomination specified in the notice; (D) the name and residence address of the person or persons to be nominated; (E) a description of all arrangements or understandings between such shareholder or beneficial owner or owners and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner; (F) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Regulation 14A under the Exchange Act, including any information that would be required to be included in a proxy statement filed pursuant to Regulation 14A had the nominee been nominated by the Board of Directors; (G) the written consent of each nominee to be named in a proxy statement and to serve as a director of the corporation if so elected; and (H) for a shareholder soliciting proxies in support of nominees (other than those nominated by the Board of Directors), a representation that such shareholder and any such beneficial owner or owners intend or are part of a group which intends to solicit proxies in support of the nominees in accordance with Rule 14a-19, including delivery of a proxy statement and form of proxy to solicit the holders of at least sixty-seven percent (67%) of the voting power of shares entitled to vote on the election of directors. In no event may such shareholder provide notice of proposed nominations for the election of directors with respect to a greater number of nominees than are subject to election by shareholders at the applicable meeting.
(c)General.
(i)Any shareholder proposing nominations for the election of directors under Rule 14a-19 shall promptly notify the corporation of any change in such shareholder’s intent to solicit the holders of at least sixty-seven percent (67%) of the voting power of shares entitled to vote on the election of directors.
(ii)Only persons who are nominated in accordance with the procedures set forth in this Section 2.13 shall be eligible to be elected as directors at an Annual Meeting or a Special Meeting. Only such business shall be conducted at an Annual Meeting or Special Meeting as shall have been brought before such meeting in accordance with the procedures set forth in this Section 2.13. The chair of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 2.13 and, if any proposed nomination or business is not in compliance with this Section 2.13, to declare that such defective proposal shall be disregarded.
(iii)For purposes of this Section 2.13, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(iv)Notwithstanding the foregoing provisions of this Section 2.13, a shareholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 2.13. Nothing in this Section 2.13 shall be deemed to limit the corporation’s obligation to include shareholder proposals in its proxy statement if such inclusion is required by Rule 14a-8 under the Exchange Act or Rule 14a-19.
(v)Notwithstanding the foregoing provisions of this Section 2.13, unless otherwise required by law, (a) no shareholder proposing nominations for the election of directors shall solicit proxies in support of director nominees other than the corporation’s nominees unless such shareholder has complied with Rule 14a-19 in connection with the solicitation of such proxies, including the timely provision of the required notices to the corporation and (b) if such shareholder, (i) provides notice pursuant to Rule 14a-19(b) and (ii) subsequently fails to comply with the requirements of Rule 14a-19(a)(2) and Rule 14a-19(a)(3), including the provision of the required notices thereunder to the corporation in a timely manner, or fails to timely provide reasonable evidence sufficient to satisfy the corporation that such shareholder has met the requirements of Rule 14a-19(a)(3) in accordance with the following sentence, then the corporation shall disregard any proxies or votes solicited for such shareholder’s nominees. If any shareholder provides notice pursuant to Rule 14a-19(b), such shareholder shall deliver to the corporation, no later than seven (7) business days prior to the applicable meeting, reasonable evidence that it has met the applicable requirements of Rule 14a-19.
2.14. Remote Communications. If authorized by the Board of Directors in its sole discretion, and subject to the rest of this Section 2.14 and to any guidelines and procedures adopted by the Board of Directors, shareholders and proxies of shareholders not physically present at a meeting of shareholders may participate in the meeting by means of remote communication. If shareholders or proxies of shareholders participate in a meeting by means of remote communication, the participating shareholders or proxies of shareholders are deemed to be present in person and entitled to vote at the meeting, whether the meeting is held at a designated place or solely by means of remote communication, if the corporation:
(a)has implemented reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a shareholder or proxy of a shareholder;
(b)has implemented reasonable measures to provide shareholders and proxies of shareholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the shareholders, including an opportunity to read or hear the proceedings of the meeting concurrently with the proceedings; and
(c)maintains a record of voting or action by any shareholder or proxy of a shareholder that votes or takes other action at the meeting by means of a remote communication.
ARTICLE III. BOARD OF DIRECTORS
3.01. General Powers and Number. All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be managed under the direction of, its Board of Directors. The number of directors of the corporation shall be not more than twelve (12), as fixed from time to time exclusively by the Board of Directors pursuant to a resolution adopted by the affirmative vote of a majority of the total number of directors that the corporation would have if there were no vacancies.
3.02. Tenure and Qualifications. Each director shall hold office until the next Annual Meeting and until his or her successor shall have been elected and qualified, or until there is a decrease in the number of directors which takes effect after the expiration of his or her term, or until his or her prior death, resignation or removal. A director may be removed by the shareholders only at a meeting called for the purpose of removing the director, and the meeting notice shall state that the purpose, or one of the purposes, of the meeting is removal of the director. A director may be removed from office but only for cause (as defined herein) if the number of votes cast to remove the director exceeds the number of votes cast not to remove him or her; provided, however, that, if the Board of Directors, by resolution, shall have recommended removal of a director, then the shareholders may remove such director without cause by the vote referred to above. As used herein, “cause” shall exist only if the director whose removal is proposed has been convicted of a felony by a court of competent jurisdiction, where such conviction is no longer subject to direct appeal, or has been adjudged liable for actions or omissions in the performance of his or her duty to the corporation in a matter which has had a materially adverse effect on the business of the corporation, where such adjudication is no longer subject to appeal. Directors need not be residents of the State of Wisconsin or shareholders of the corporation, although the Board of Directors may establish share ownership expectations for persons who serve as directors. A director may resign at any time by delivering written notice which complies with the Wisconsin Business Corporation Law to the Chair or to the corporation. A director’s resignation is effective when the notice is delivered unless the notice specifies a later effective date. No person who shall have attained the age of 75 years shall be eligible for election or re-election to the Board of Directors. Notwithstanding the foregoing, such restrictions shall not apply (i) to any director who is also at that time a full-time employee of the corporation or (ii) in the event the Board of Directors, by majority vote, waives such restriction for a particular director or nominee prior to such person’s election or re-election.
In order for any potential new director or incumbent director to become a nominee for service, or further service, on the Board of Directors, such person must submit, or have on file with the corporation, an irrevocable resignation that is contingent upon (i) that person not receiving in an uncontested election a greater number of votes “for” his or her election than votes “withheld” from such election (a “majority” for purposes of this Section 3.02), and (ii) acceptance of that resignation by the Board of Directors. An “uncontested election” is one where the total number of nominees for election as directors nominated by (i) the Board of Directors, (ii) any shareholder or (iii) a combination of nominees by the Board and one or more shareholders does not exceed the total number of directors to be elected.
If, after receipt of the certified results of the applicable shareholder vote in an uncontested election, any individual does not receive a majority, the Board of Directors, acting on the recommendation of the Nominating and Corporate Governance Committee, shall within 90 days of receiving the certified vote pertaining to such election, determine whether to accept the individual’s resignation. The Nominating and Corporate Governance Committee, in making this recommendation, and the Board of Directors, in acting on such recommendation, may consider any factors or other information that they determine appropriate and relevant. Following
acceptance or rejection of the resignation, the corporation will file a Form 8-K with the Securities and Exchange Commission in which it will publicly disclose its decision, together with an explanation of the process by which the decision was made and, if applicable, the Board of Directors’ reason(s) for rejecting the resignation.
In taking the actions required pursuant to this Section 3.02, any individual who does not receive a majority shall not participate with respect to the consideration of that individual’s resignation by the Board of Directors and the Nominating and Corporate Governance Committee, except that if every member of the Board of Directors and the Nominating and Corporate Governance Committee does not receive a majority, then the entire Board of Directors (other than the particular individual(s) whose resignation is being considered) will make the determination whether to accept or reject each tendered resignation.
3.03. Regular Meetings. A regular meeting of the Board of Directors may be held without other notice than this by-law immediately after the Annual Meeting, and each adjourned session thereof. The place of such regular meeting shall be the same as the place of the Annual Meeting which precedes it if such Annual Meeting was held at a place rather than via remote communication, or at such other suitable place as may be announced at such Annual Meeting. The Board of Directors may provide for the holding of such additional regular meetings as it may deem appropriate.
3.04. Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the Chair, the Chief Executive Officer or any three directors. The Chair or the Chief Executive Officer may fix any place, either within or without the State of Wisconsin, as the place for holding any special meeting of the Board of Directors, and if no other place is fixed the place of meeting shall be the principal offices of the corporation in the State of Wisconsin.
3.05. Notice; Waiver. Notice of each meeting of the Board of Directors (unless otherwise provided in or pursuant to Section 3.03) shall be given by written notice delivered or communicated in person, by facsimile or other form of wire or wireless communication (including, without limitation, email), or by mail or private carrier, to each director at his or her business address or at such other address as such director shall have designated in writing filed with the Secretary, in each case not less than 48 hours prior to the time of the meeting. If mailed, such notice shall be deemed to be effective when deposited in the United States mail so addressed, with postage thereon prepaid. If notice is given by private carrier, such notice shall be deemed to be effective when the notice is delivered to the private carrier. Whenever any notice whatever is required to be given to any director of the corporation under the Articles of Incorporation or these bylaws or any provision of the Wisconsin Business Corporation Law, a waiver thereof in writing, signed at any time, whether before or after the time of meeting, by the director entitled to such notice, shall be deemed equivalent to the giving of such notice. The corporation shall retain any such waiver as part of the permanent corporate records. A director’s attendance at or participation in a meeting waives any required notice to him or her of the meeting unless the director at the beginning of the meeting or promptly upon his or her arrival objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting.
3.06. Quorum. Except as otherwise provided by the Wisconsin Business Corporation Law or by the Articles of Incorporation or these bylaws, a majority of the number of directors as fixed in accordance with Section 3.01 shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, but a majority of the directors present (though less than such quorum) may adjourn the meeting from time to time without further notice.
3.07. Manner of Acting. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless the act of a greater number is required by the Wisconsin Business Corporation Law or by the Articles of Incorporation or these bylaws.
3.08. Conduct of Meetings. The Chair, and in his or her absence, the Chief Executive Officer, and in his or her absence, the President, and in his or her absence, any director chosen by the directors present, shall call meetings of the Board of Directors to order and shall act as chair of the meeting. The Secretary of the corporation shall act as secretary of all meetings of the Board of Directors, but in the absence of the Secretary, the presiding officer may appoint any Assistant Secretary or any director or other person present to act as secretary of the meeting. Minutes of any regular or special meeting of the Board of Directors shall be prepared and distributed to each director.
3.09. Vacancies. Except as provided below, any vacancy occurring in the Board of Directors, including a vacancy resulting from an increase in the number of directors, may be filled by any of the following: (a) the shareholders; (b) the Board of Directors; or (c) if the directors remaining in office constitute fewer than a quorum of the Board of Directors, the directors, by the affirmative vote of a majority of all directors remaining in office. If the vacant office was held by a director elected by a voting group of shareholders, only the holders of shares of that voting group may vote to fill the vacancy if it is filled by the shareholders, and only the remaining directors elected by that voting group may vote to fill the vacancy if it is filled by the directors. A vacancy that will occur at a specific later date, because of a resignation effective at a later date or otherwise, may be filled before the vacancy occurs, but the new director may not take office until the vacancy occurs.
3.10. Compensation. The Board of Directors, by affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, may establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise, or may delegate such authority to an appropriate committee. The Board of Directors also shall have authority to provide for or to delegate authority to an appropriate committee to provide for reasonable pensions, disability or death benefits, and other benefits or payments, to directors, officers and employees to the corporation.
3.11. Presumption of Assent. A director of the corporation who is present at a meeting of the Board of Directors or a committee thereof of which he or she is a member at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless any of the following occurs: (a) the director objects at the beginning of the meeting or promptly upon his or her arrival to holding the meeting or transacting business at the meeting; (b) the director dissents or abstains from an action taken and minutes of the meeting are prepared that show the director’s dissent or abstention from the action taken; (c) the director delivers written notice that complies with the Wisconsin Business Corporation Law of his or her dissent or abstention to the presiding officer of the meeting before its adjournment or to the corporation immediately after adjournment of the meeting; or (d) the director dissents or abstains from an action taken, minutes of the meeting are prepared that fail to show the director’s dissent or abstention from the action taken, and the director delivers to the corporation a written notice of that failure that complies with the Wisconsin Business Corporation Law promptly after receiving the minutes. Such right to dissent or abstain shall not apply to a director who voted in favor of such action.
3.12. Committees. The Board of Directors by resolution adopted by the affirmative vote of a majority of the number of directors fixed in accordance with Section 3.01 may create one or more committees, appoint members of the Board of Directors to serve on the committees and designate other members of the Board of Directors to serve as alternates. Each committee shall have
one or more members who shall, unless otherwise provided by the Board of Directors, serve at the pleasure of the Board of Directors. A committee may be authorized to exercise the authority of the Board of Directors, except that a committee may not do any of the following: (a) approve or recommend to shareholders for approval any action or matter expressed required by the Wisconsin Business Corporation Law to be submitted to shareholder for approval; and (b) adopt, amend or repeal bylaws. Unless otherwise provided by the Board of Directors in creating the committee, a committee may employ counsel, accountants and other consultants to assist it in the exercise of its authority. Except as provided by these bylaws or by resolution of the Board of Directors, each committee shall fix its own rules governing the conduct of its activities.
3.13. Telephonic Meetings. Except as herein provided and notwithstanding any place set forth in the notice of the meeting or these bylaws, members of the Board of Directors (and any committee thereof) may participate in regular or special meetings by, or through the use of, any means of communication by which all participants may simultaneously hear each other, such as by conference telephone. If a meeting is conducted by such means, then at the commencement of such meeting the presiding officer shall inform the participating directors that a meeting is taking place at which official business may be transacted. Any participant in a meeting by such means shall be deemed present in person at such meeting. Notwithstanding the foregoing, no action may be taken at any meeting held by such means on any particular matter which the presiding officer determines, in his or her sole discretion, to be inappropriate under the circumstances for action at a meeting held by such means. Such determination shall be made and announced in advance of such meeting.
3.14. Unanimous Consent without Meeting. Any action required or permitted by the Articles of Incorporation or these bylaws or any provision of the Wisconsin Business Corporation Law to be taken by the Board of Directors (or a committee thereof) at a meeting may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all members of the Board or of the committee, as the case may be, then in office. Such action shall be effective when the last director or committee member signs the consent, unless the consent specifies a different effective date.
ARTICLE IV. OFFICERS
4.01. Appointment. The officers of the corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (the number and designations to be determined by the Board of Directors) and a Secretary. The officers of the corporation may include a Chief Operating Officer, a Chief Financial Officer and such other officers, if any, as may be deemed necessary by the Board of Directors. Each officer of the corporation shall be appointed by the Board of Directors. The Board may also designate a Chair of the Board. Any two or more offices may be held by the same person.
4.02. Election; Resignation and Removal.
(a)Election. The officers of the corporation to be elected by the Board of Directors shall be elected annually by the Board of Directors at the first meeting of the Board of Directors held after each Annual Meeting. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as conveniently may be.
(b)Resignation and Removal. An officer shall hold office until he or she resigns, dies, is removed hereunder, or a different person is appointed to the office. An officer may resign at any time by delivering an appropriate written
notice to the corporation. The resignation is effective when the notice is delivered, unless the notice specifies a later effective date and the corporation accepts the later effective date. Any officer may be removed by the Board of Directors with or without cause and notwithstanding the contract rights, if any, of the person removed. Except as provided in the preceding sentence, the resignation or removal is subject to any remedies provided by any contract between the officer and the corporation or otherwise provided by law. Appointment shall not of itself create contract rights.
4.03. Vacancies. A vacancy in any office because of death, resignation, removal or otherwise, shall be filled by the Board of Directors. If a resignation is effective at a later date, the Board of Directors may fill the vacancy before the effective date if the Board of Directors provides that the successor may not take office until the effective date.
4.04. Chair. The Board of Directors may elect a Chair of the Board. The Chair may be an executive or a non-executive position. The Chair shall preside at all meetings of the Board of Directors and the shareholders. The Chair may perform such duties as the bylaws or the Chief Executive Officer or the Board may prescribe.
4.05. Chief Executive Officer. The Chief Executive Officer shall be the principal executive officer of the corporation and, subject to the control and direction of the Board of Directors, shall in general supervise and control all of the business and affairs of the corporation. The Chief Executive Officer shall have authority, subject to such rules as may be prescribed by the Board of Directors, to appoint such agents and employees of the corporation as he or she shall deem necessary, to prescribe their powers, duties and compensation, and to delegate authority to them. Such agents and employees shall hold office at the discretion of the Chief Executive Officer. The 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 resolution of the Board of Directors; and, except as otherwise provided by law or directed by the Board of Directors, the Chief Executive Officer may authorize the Chair, the President, the Chief Operating Officer, the Chief Financial Officer, any Vice President or other officer, employee or agent of the corporation to sign, execute and acknowledge such documents or instruments in his or her place and stead. In general, the Chief Executive Officer shall perform all duties incident to the office of Chief Executive Officer and such other duties as may be prescribed by the Board of Directors from time to time.
4.06. President. The Board of Directors shall elect a President. The President shall perform all the duties incident to the office of President and shall perform such duties as the Chief Executive Officer (if the President is not the Chief Executive Officer) or the Board may prescribe. The President shall also assist in the discharge of supervisory, managerial and executive duties and functions. If the President is not the Chief Executive Officer, in the absence of the Chief Executive Officer, or in the event of his or her death, inability or refusal to act, the President shall perform the duties of the Chief Executive Officer and when so acting shall have the powers and duties of the Chief Executive Officer. The President shall have the authority to sign, execute and acknowledge, on behalf of the corporation, all deeds, mortgages, bonds, stock certificates, contracts, leases, reports and all other documents or instruments necessary or proper to be executed in the course of the corporation’s regular business, or which shall be authorized by resolution of the Board of Directors and, except as otherwise provided by law or directed by the Board of Directors or the Chief Executive Officer, the President may authorize the Chief Operating Officer, the Chief Financial Officer or any Vice President or other officer or agent of
the corporation to sign, execute and acknowledge such documents or instruments in the President’s place or stead.
4.07. Chief Operating Officer. The Chief Operating Officer, if one is designated, shall assist the Chief Executive Officer and the President in the discharge of supervisory, managerial and executive duties and functions. In the absence of the President, or in the event of the President’s death, inability or refusal to act, the Chief Operating Officer shall perform the duties of the President and when so acting shall have the powers and duties of the President. In general, he or she shall perform such other duties as from time to time may be designated to him or her by the Board of Directors or the Chief Executive Officer.
4.08. Chief Financial Officer. The Chief Financial Officer, if one is designated, shall manage and supervise the financial affairs of the corporation. In general, he or she shall perform such other duties as from time to time may be designated to him or her by the Board of Directors or the Chief Executive Officer.
4.09. Vice Presidents.
(a)Appointment. The Board of Directors shall elect one or more Vice Presidents. The Board of Directors may designate various classes, ranks or other designations of Vice President, such as Executive Vice President and Senior Vice President. In the event of such designations, all references to Vice Presidents include any such persons. The Board of Directors also may designate an order of priority among the Vice Presidents.
(b)Duties. In the absence of the Chief Executive Officer and the President, or in the event of such other officers’ death, inability or refusal to act, or in the event for any reason it shall be impracticable for such other officers to act personally, the Vice President (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Board of Directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the Chief Executive Officer and the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Chief Executive Officer and the President. Any Vice President may sign, with the Secretary or Assistant Secretary, certificates for shares of the corporation; and shall perform such other duties and have such authority as from time to time may be delegated or assigned to him or her by the Chief Executive Officer, the President or the Board of Directors. The execution of any instrument of the corporation by any Vice President shall be conclusive evidence, as to third parties, of the Vice President’s authority to act in the stead of the President or other appropriate officer.
4.10. Secretary. The Secretary shall: (a) keep (or cause to be kept) regular minutes of all meetings of the shareholders, the Board of Directors and any committees of the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these bylaws or as required by law; (c) be custodian of the corporate records and of the seal of the corporation, if any, and see that the seal of the corporation, if any, is affixed to all documents which are authorized to be executed on behalf of the corporation under its seal; (d) keep or arrange for the keeping of a register of the post office address of each shareholder which shall be furnished to the Secretary by such shareholder; (e) sign with any other authorized officer, any certificates for shares of the corporation, the issuance of which shall have been authorized by resolution
of the Board of Directors; (f) have general charge of the stock transfer books of the corporation; and (g) in general perform all duties incident to the office of Secretary and have such other duties and exercise such authority as from time to time may be delegated or assigned to him or her by the Chief Executive Officer, the President or by the Board of Directors.
4.11. Assistant and Acting Officers. The Board of Directors and the Chief Executive Officer shall have the power to appoint any person to act as assistant to any officer (including, without limitation, an Assistant Secretary), or as agent for the corporation in the officer’s stead, or to perform the duties of such officer whenever for any reason it is impracticable for such officer to act personally, and such assistant or acting officer or other agent so appointed by the Board of Directors or Chief Executive Officer shall have the power to perform all the duties of the office to which that person is so appointed to be assistant, or as to which he or she is so appointed to act, except as such power may be otherwise defined or restricted by the Board of Directors or the Chief Executive Officer.
4.12. Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors or by a duly authorized committee thereof, and no officer shall be prevented from receiving such salary by reason of the fact that such officer is also a director of the corporation.
ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS;
SPECIAL CORPORATE ACTS
5.01. Contracts. The Board of Directors may authorize any officer or officers, employee or employees, or agent or agents, to enter into any contract or execute or deliver any instrument in the name of and on behalf of the corporation, and such authorization may be general or confined to specific instances. In the absence of other designation, all deeds, mortgages and instruments of assignment or pledge made by the corporation shall be executed in the name of the corporation by the Chair, the Chief Executive Officer, the President or one of the Vice Presidents; the Secretary or an Assistant Secretary, when necessary or required, shall affix the corporate seal thereto; and when so executed no other party to such instrument or any third party shall be required to make any inquiry into the authority of the signing officer or officers.
5.02. Checks, Drafts, etc. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers, agent or agents of the corporation and in such manner as shall from time to time be determined by or under the authority of a resolution of the Board of Directors.
5.03. Deposits. All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositories as may be selected by or under the authority of a resolution of the Board of Directors.
5.04. Voting of Securities Owned by this Corporation. Subject always to the specific directions of the Board of Directors, (a) any shares or other securities issued by any other corporation and owned or controlled by this corporation may be voted at any meeting of security holders of such other corporation by the Chief Executive Officer if he or she be present, or in his or her absence by the President of this corporation if he or she be present, or in his or her absence by any Vice President of this corporation who may be present, and (b) whenever, in the judgment of the Chief Executive Officer, or in his or her absence, of the President, or in his or her absence of any Vice President, it is desirable for this corporation to execute a proxy or written consent in respect to any shares or other securities issued by any other corporation and owned by this corporation, such proxy or consent shall be executed in the name of this corporation by the Chief Executive Officer, the President, or one of the Vice Presidents of this corporation, without necessity of any authorization by the Board of Directors,
affixation of corporate seal or countersignature or attestation by another officer. Any person or persons designated in the manner above stated as the proxy or proxies of this corporation shall have full right, power and authority to vote the shares or other securities issued by such other corporation and owned by this corporation the same as such shares or other securities might be voted by this corporation.
5.05. No Nominee Procedures. The corporation has not established, and nothing in these bylaws shall be deemed to establish, any procedure by which a beneficial owner of the corporation’s shares that are registered in the name of a nominee is recognized by the corporation as the shareholder under Section 180.0723 of the Wisconsin Business Corporation Law.
ARTICLE VI. SHARES AND THEIR TRANSFER
6.01. Certificates for Shares. The corporation may issue any shares of the classes or series of capital stock of the corporation without certificates to the full extent that the Secretary or Assistant Secretary of the corporation determines that such issuance is appropriate and allowed by applicable law and the rules of any applicable stock exchange, with any such determination to be conclusively evidenced by the delivery to the corporation's transfer agent and registrar by the Secretary or Assistant Secretary of the corporation of an instrument referring to this by-law and providing instructions of the Secretary or Assistant Secretary of the corporation to the transfer agent and registrar to issue any such shares without certificates in accordance with applicable law. In any event, the foregoing authorization does not affect shares already represented by certificates until the certificates are surrendered to the corporation. Certificates, if any, representing shares of the corporation shall be in such form, consistent with the Wisconsin Business Corporation Law, as shall be determined by the Board of Directors. Such certificates shall be signed by the Chair, the Chief Executive Officer, the President or a Vice President and by the Secretary or an Assistant Secretary. All certificates for shares shall be consecutively numbered or otherwise identified. The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation. The name and address of each person to whom a share is issued without a certificate, together with the number of shares so issued and the date of their issue, shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except as provided in Section 6.06.
6.02. Facsimile Signatures and Seal. The seal of the corporation on any certificates for shares may be a facsimile. The signatures of the Chair, the Chief Executive Officer, the President, or any Vice President and the Secretary or Assistant Secretary upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation.
6.03. Signature by Former Officers. In case any officer, who has signed or whose facsimile signature has been placed upon any certificate for shares, shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he or she were such officer at the date of its issue.
6.04. Transfer of Shares. Prior to due presentment of a certificate for shares for registration of transfer, and prior to compliance with customary procedures for transferring shares issued without a certificate, the corporation may treat the registered owner of such shares as the person exclusively entitled to vote, to receive notifications and otherwise to exercise all the rights and powers of an owner. Where a certificate for shares is presented to the corporation with a request to register for transfer, the corporation shall not be liable to the owner or any other person suffering loss as a result of such registration of transfer if (a) there were on or with the certificate the necessary endorsements, and
(b) the corporation had no duty to inquire into adverse claims or has discharged any such duty. The corporation may require reasonable assurance that said endorsements are genuine and effective and in compliance with such other regulations as may be prescribed under the authority of the Board of Directors. Where the corporation receives a request to register for transfer shares issued without a certificate, the corporation shall not be liable to the owner or any other person suffering loss as a result of such registration of transfer if (a) the party requesting the transfer has complied with customary procedures for transferring shares issued without a certificate and (b) the corporation had no duty to inquire into adverse claims or has discharged any such duty.
6.05. Restrictions on Transfer. The face or reverse side of each certificate representing shares, or the written statement provided to shareholders for shares issued without a certificate, shall bear a conspicuous notation of any restriction imposed by the corporation upon the transfer of such shares.
6.06. Lost, Destroyed or Stolen Certificates. Where the owner of a share represented by a certificate claims that his or her certificate for shares has been lost, destroyed or wrongfully taken, a new certificate shall be issued in place thereof, or the corporation shall enter the name and address of such owner on the stock transfer books of the corporation as a person to whom a share has been issued without a certificate, if the owner (a) so requests before the corporation has notice that such shares have been acquired by a bona fide purchaser, and (b) files with the corporation a sufficient indemnity bond (unless such requirement is waived by the corporation), and (c) satisfies such other reasonable requirements as the Board of Directors may prescribe.
6.07. Consideration for Shares. The Board of Directors may authorize shares to be issued for consideration consisting of any tangible or intangible property or benefit to the corporation, including cash, promissory notes, services performed, contracts for services to be performed or other securities of the corporation. Before the corporation issues shares, the Board of Directors shall determine that the consideration received or to be received for the shares to be issued is adequate. In the absence of a resolution adopted by the Board of Directors expressly determining that the consideration received or to be received is adequate, Board approval of the issuance of the shares shall be deemed to constitute such a determination. The determination of the Board of Directors is conclusive insofar as the adequacy of consideration for the issuance of shares relates to whether the shares are validly issued, fully paid and nonassessable. The corporation may place in escrow shares issued in whole or in part for a contract for future services or benefits, a promissory note, or other property to be issued in the future, or make other arrangements to restrict the transfer of the shares, and may credit distributions in respect of the shares against their purchase price, until the services are performed, the benefits or property are received or the promissory note is paid. If the services are not performed, the benefits or property are not received or the promissory note is not paid, the corporation may cancel, in whole or in part, the shares escrowed or restricted and the distributions credited.
6.08. Stock Regulation. The Board of Directors shall have the power and authority to make all such further rules and regulations not inconsistent with the statutes of the State of Wisconsin as it may deem expedient concerning the issuance, transfer and registration of certificates representing shares of the corporation.
ARTICLE VII. SEAL
7.01. The Board of Directors may provide a corporate seal which (if so provided) shall be circular in form and shall have inscribed thereon the name of the corporation and the state of incorporation and the words, “Corporate Seal”.
ARTICLE VIII. INDEMNIFICATION
8.01. Certain Definitions. All capitalized terms used in this Article VIII and not otherwise hereinafter defined in this Section 8.01 shall have the meaning set forth in Section 180.0850 of the Statute. The following capitalized terms (including any plural forms thereof) used in this Article VIII shall be defined as follows:
(a)“Affiliate” shall include, without limitation, any corporation, partnership, joint venture, employee benefit plan, trust or other enterprise that directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the Corporation.
(b)“Authority” shall mean the entity selected by the Director or Officer to determine his or her right to indemnification pursuant to Section 8.04.
(c)“Board” shall mean the entire then elected and serving Board of Directors of the Corporation, including all members thereof who are Parties to the subject Proceeding or any related Proceeding.
(d)“Breach of Duty” shall mean the Director or Officer breached or failed to perform his or her duties to the Corporation and his or her breach of or failure to perform those duties is determined, in accordance with Section 8.04, to constitute misconduct under Section 180.0851 (2) (a) 1, 2, 3 or 4 of the Statute.
(e)“Corporation,” as used herein and as defined in the Statute and incorporated by reference into the definitions of certain other capitalized terms used herein, shall mean this corporation, including, without limitation, any successor corporation or entity to this corporation by way of merger, consolidation or acquisition of all or substantially all of the capital stock or assets of this corporation.
(f)“Director or Officer” shall have the meaning set forth in the Statute; provided, that, for purposes of this Article VIII, (i) “Director or Officer” shall include a director or officer of a Subsidiary (whether or not otherwise serving as a Director or Officer); (ii) the term “employee benefit plan” as used in the Statute shall include an employee benefit plan sponsored, maintained or contributed to by a Subsidiary; and (iii) it shall be conclusively presumed that any Director or Officer serving as a director, officer, partner, trustee, member of any governing or decision-making committee, employee or agent of an Affiliate shall be so serving at the request of the Corporation.
(g)“Disinterested Quorum” shall mean a quorum of the Board who are not Parties to the subject Proceeding or any related Proceeding.
(h)“Party” shall have the meaning set forth in the Statute; provided, that, for purposes of this Article VIII, the term “Party” shall also include any Director or Officer or employee of the Corporation who is or was a witness in a Proceeding at a time when he or she has not otherwise been formally named a Party thereto.
(i)“Proceeding” shall have the meaning set forth in the Statute; provided, that, for purposes of this Article VIII, the term “Proceeding” shall also include all Proceedings (i) brought under (in whole or in part) the Securities Act of 1933, as amended, the Exchange Act, their respective state counterparts, and/or any rule or regulation promulgated under any of the foregoing; (ii) brought before an Authority or otherwise to enforce rights hereunder; (iii) any appeal from a Proceeding; and (iv) any Proceeding in which the Director or Officer is a plaintiff or petitioner because he or she is a Director or Officer, provided, however, that such Proceeding is authorized by a majority vote of a Disinterested Quorum.
(j)“Statute” shall mean Sections 180.0850 through 180.0859, inclusive, of the Wisconsin Business Corporation Law, Chapter 180 of the Wisconsin Statutes, as in effect on February 13, 2008, including any subsequent amendments thereto, but, in the case of any such amendment, only to the extent such amendment permits or requires the Corporation to provide broader indemnification rights than the Statute permitted or required the Corporation to provide prior to such amendment.
(k)“Subsidiary” shall mean any direct or indirect subsidiary of the Corporation as determined for financial reporting purposes, whether domestic or foreign.
8.02. Mandatory Indemnification. To the fullest extent permitted or required by the Statute, the Corporation shall indemnify a Director or Officer against all Liabilities incurred by or on behalf of such Director or Officer in connection with a Proceeding in which the Director or Officer is a Party because he or she is a Director or Officer.
8.03. Procedural Requirements.
(a)A Director or Officer who seeks indemnification under Section 8.02 shall make a written request therefor to the Corporation. Subject to Section 8.03(b), within 60 days of the Corporation’s receipt of such request, the Corporation shall pay or reimburse the Director or Officer for the entire amount of Liabilities incurred by the Director or Officer in connection with the subject Proceeding (net of any Expenses previously advanced pursuant to Section 8.05).
(b)No indemnification shall be required to be paid by the Corporation pursuant to Section 8.02 if, within such 60-day period, (i) a Disinterested Quorum, by a majority vote thereof, determines that the Director or Officer requesting indemnification engaged in misconduct constituting a Breach of Duty or (ii) a Disinterested Quorum cannot be obtained.
(c)In either case of nonpayment pursuant to Section 8.03(b), the Board shall immediately authorize by resolution that an Authority, as provided in Section 8.04, determine whether the Director’s or Officer’s conduct constituted a Breach of Duty and, therefore, whether indemnification should be denied hereunder.
(d)(i) If the Board does not authorize an Authority to determine the Director’s or Officer’s right to indemnification hereunder within such 60-day period and/or (ii) if indemnification of the requested amount of Liabilities is paid
by the Corporation, then it shall be conclusively presumed for all purposes that a Disinterested Quorum has determined that the Director or Officer did not engage in misconduct constituting a Breach of Duty and, in the case of subsection (i) above (but not subsection (ii)), indemnification by the Corporation of the requested amount of Liabilities shall be paid to the Director or Officer immediately.
8.04. Determination of Indemnification.
(a)If the Board authorizes an Authority to determine a Director’s or Officer’s right to indemnification pursuant to Section 8.03, then the Director or Officer requesting indemnification shall have the absolute discretionary authority to select one of the following as such Authority:
(i)An independent legal counsel; provided, that such counsel shall be mutually selected by such Director or Officer and by a majority vote of a Disinterested Quorum or, if a Disinterested Quorum cannot be obtained, then by a majority vote of the Board;
(ii)A panel of three arbitrators selected from the panels of arbitrators of the American Arbitration Association in Milwaukee, Wisconsin; provided, that (A) one arbitrator shall be selected by such Director or Officer, the second arbitrator shall be selected by a majority vote of a Disinterested Quorum or, if a Disinterested Quorum cannot be obtained, then by a majority vote of the Board, and the third arbitrator shall be selected by the two previously selected arbitrators, and (B) in all other respects, such panel shall be governed by the American Arbitration Association’s then existing Commercial Arbitration Rules; or
(iii)A court pursuant to and in accordance with Section 180.0854 of the Statute.
(b)In any such determination by the selected Authority there shall exist a rebuttable presumption that the Director’s or Officer’s conduct did not constitute a Breach of Duty and that indemnification against the requested amount of Liabilities is required. The burden of rebutting such a presumption by clear and convincing evidence shall be on the Corporation or such other party asserting that such indemnification should not be allowed.
(c)The Authority shall make its determination within 60 days of being selected and shall submit a written opinion of its conclusion simultaneously to both the Corporation and the Director or Officer.
(d)If the Authority determines that indemnification is required hereunder, the Corporation shall pay the entire requested amount of Liabilities (net of any Expenses previously advanced pursuant to Section 8.05), including interest thereon at a reasonable rate, as determined by the Authority, within 10 days of receipt of the Authority’s opinion; provided, that, if it is determined by the Authority that a Director or Officer is entitled to indemnification as to some claims, issues or matters, but not as to other claims, issues or matters, involved in the subject Proceeding, the Corporation shall be required to pay (as set forth
above) only the amount of such requested Liabilities as the Authority shall deem appropriate in light of all of the circumstances of such Proceeding.
(e)The determination by the Authority that indemnification is required hereunder shall be binding upon the Corporation regardless of any prior determination that the Director or Officer engaged in a Breach of Duty.
(f)All Expenses incurred in the determination process under this Section 8.04 by either the Corporation or the Director or Officer, including, without limitation, all Expenses of the selected Authority, shall be paid by the Corporation.
8.05. Mandatory Allowance of Expenses.
(a)The Corporation shall pay or reimburse from time to time or at any time, within 10 days after the receipt of the Director’s or Officer’s written request therefor, the reasonable Expenses of the Director or Officer as such Expenses are incurred; provided, the following conditions are satisfied:
(i)The Director or Officer furnishes to the Corporation an executed written certificate affirming his or her good faith belief that he or she has not engaged in misconduct which constitutes a Breach of Duty; and
(ii)The Director or Officer furnishes to the Corporation an unsecured executed written agreement to repay any advances made under this Section 8.05 if it is ultimately determined by an Authority that he or she is not entitled to be indemnified by the Corporation for such Expenses pursuant to Section 8.04.
(b)If the Director or Officer must repay any previously advanced Expenses pursuant to this Section 8.05, such Director or Officer shall not be required to pay interest on such amounts.
8.06. Indemnification and Allowance of Expenses of Certain Others.
(a)The Board may, in its sole and absolute discretion as it deems appropriate, pursuant to a majority vote thereof, indemnify a director or officer of an Affiliate (who is not otherwise serving as a Director or Officer) against all Liabilities, and shall advance the reasonable Expenses, incurred by such director or officer in a Proceeding to the same extent hereunder as if such director or officer incurred such Liabilities because he or she was a Director or Officer, if such director or officer is a Party thereto because he or she is or was a director or officer of the Affiliate.
(b)The Corporation shall indemnify an employee who is not a Director or Officer, to the extent that he or she has been successful on the merits or otherwise in defense of a Proceeding, for all reasonable Expenses incurred in the Proceeding if the employee was a Party because he or she was an employee of the Corporation.
(c)The Board may, in its sole and absolute discretion as it deems appropriate, pursuant to a majority vote thereof, indemnify (to the extent not otherwise provided in Section 8.06(b) hereof) against Liabilities incurred by, and/or provide for the allowance of reasonable Expenses of, an employee or authorized agent of the Corporation acting within the scope of his or her duties as such and who is not otherwise a Director or Officer.
8.07. Insurance. The Corporation may purchase and maintain insurance on behalf of a Director or Officer or any individual who is or was an employee or authorized agent of the Corporation against any Liability asserted against or incurred by such individual in his or her capacity as such or arising from his or her status as such, regardless of whether the Corporation is required or permitted to indemnify against any such Liability under this Article VIII.
8.08. Notice to the Corporation. A Director, Officer or employee shall promptly notify the Corporation in writing when he or she has actual knowledge of a Proceeding which may result in a claim of indemnification against Liabilities or allowance of Expenses hereunder, but the failure to do so shall not relieve the Corporation of any liability to the Director, Officer or employee hereunder unless the Corporation shall have been irreparably prejudiced by such failure (as determined, in the case of Directors or Officers only, by an Authority selected pursuant to Section 8.04(a)).
8.09. Severability. If any provision of this Article VIII shall be deemed invalid or inoperative, or if a court of competent jurisdiction determines that any of the provisions of this Article VIII contravene public policy, this Article VIII shall be construed so that the remaining provisions shall not be affected, but shall remain in full force and effect, and any such provisions which are invalid or inoperative or which contravene public policy shall be deemed, without further action or deed by or on behalf of the Corporation, to be modified, amended and/or limited, but only to the extent necessary to render the same valid and enforceable; it being understood that it is the Corporation’s intention to provide the Directors and Officers with the broadest possible protection against personal liability allowable under the Statute.
8.10. Non-exclusivity of Article VIII. The rights of a Director, Officer or employee (or any other person) granted under this Article VIII shall not be deemed exclusive of any other rights to indemnification against Liabilities or advancement of Expenses which the Director, Officer or employee (or such other person) may be entitled to under any written agreement, Board resolution, vote of shareholders of the Corporation or otherwise, including, without limitation, under the Statute. Nothing contained in this Article VIII shall be deemed to limit the Corporation’s obligations to indemnify against Liabilities or advance Expenses to a Director, Officer or employee under the Statute.
8.11. Contractual Nature of Article VIII; Repeal or Limitation of Rights. This Article VIII shall be deemed to be a contract between the Corporation and each Director, Officer and employee of the Corporation and any repeal or other limitation of this Article VIII or any repeal or limitation of the Statute or any other applicable law shall not limit any rights of indemnification against Liabilities or allowance of Expenses then existing or arising out of events, acts or omissions occurring prior to such repeal or limitation, including, without limitation, the right to indemnification against Liabilities or allowance of Expenses for Proceedings commenced after such repeal or limitation to enforce this Article VIII with regard to acts, omissions or events arising prior to such repeal or limitation. If the Statute is amended to permit or require the Corporation to provide broader indemnification rights than this Article VIII permits or requires, then this Article VIII shall be automatically amended and deemed to incorporate such broader indemnification rights.
ARTICLE IX. AMENDMENTS
9.01. By Shareholders. These bylaws may be altered, amended or repealed and new bylaws may be adopted by the shareholders at any Annual Meeting or Special Meeting at which a quorum is in attendance.
9.02. By Directors. These bylaws may also be altered, amended or repealed and new bylaws may be adopted by the Board of Directors by affirmative vote of a majority of the number of directors present at any meeting at which a quorum is in attendance; provided, however, that the shareholders in adopting, amending or repealing a particular by-law may provide therein that the Board of Directors may not amend, repeal or readopt that by-law.
9.03. Implied Amendments. Any action taken or authorized by the shareholders or by the Board of Directors, which would be inconsistent with the bylaws then in effect but is taken or authorized by affirmative vote of not less than the number of shares or the number of directors required to amend the bylaws so that the bylaws would be consistent with such action, shall be given the same effect as though the bylaws had been temporarily amended or suspended so far, but only so far, as is necessary to permit the specific action so taken or authorized.
ARTICLE X. INTERPRETATION
10.01. Interpretation. Unless the context requires otherwise, all words used in these bylaws in the singular number extend to and include the plural, all words in the plural number extend to and include the singular, and all words in any gender extend to and include all genders.
PLEXUS CORP.
2024 OMNIBUS INCENTIVE PLAN
1. Introduction.
(a) Purposes. The purposes of the 2024 Omnibus Incentive Plan are to provide a means to attract and retain talented personnel and to provide to participating directors, officers and other key employees long-term incentives for high levels of performance and for successful efforts to improve the financial performance of the Corporation. These purposes may be achieved through the grant of options to purchase Common Stock of Plexus Corp., Stock Appreciation Rights, Restricted Stock Awards, Restricted Stock Units, Performance Stock Units, Other Stock Awards and the grant of Cash Incentive Awards, as described below.
(b) Effective Date. The Plan shall become effective on the date of the Corporation’s 2024 Annual Meeting of Shareholders (the “Effective Date”), provided that the Corporation’s shareholders approve the Plan on such date.
(c) Effect on Prior Plans. If the 2024 Omnibus Incentive Plan is approved by shareholders, then no further awards will be granted under the Plexus Corp. 2016 Omnibus Incentive Plan (the “2016 Plan”). Awards granted previously under the 2016 Plan and its predecessors will remain in effect until they are exercised or settled, have expired, or are otherwise terminated in accordance with their terms, and shall continue to be administered in accordance with their terms and the relevant plan.
2. Definitions.
Capitalized terms used and not otherwise defined in this Plan or in any Award Agreement have the following meanings:
(a) “1934 Act” means the Securities Exchange Act of 1934, as it may be amended from time to time. Any reference to a specific section of the 1934 Act shall include all rules and guidance issued thereunder and any successor provision.
(b) “Award” means an Incentive Stock Option, Non-Qualified Stock Option, Stock Appreciation Right, Restricted Stock Award, Restricted Stock Units, Performance Stock Units, Other Stock Award or Cash Incentive Award, as appropriate.
(c) “Award Agreement” means the agreement between the Corporation and the Grantee specifying the terms and conditions of an Award, as described thereunder. The Corporation may provide for the use of electronic, Internet or other non-paper Award Agreements, and the use of electronic, Internet or other non-paper means for the acceptance thereof and actions thereunder by a Grantee.
(d) "Board” means the Board of Directors of the Corporation.
(e) “Cash Incentive Award” means a cash incentive award under Section 9 of the Plan.
(f) “Cause” means (i) if a Grantee has in effect an employment agreement with the Corporation or an affiliate that defines “Cause,” then the definition set forth in such agreement, or if none, then (ii) a violation of the Corporation’s Code of Conduct and Business Ethics, or substantial and continued failure of the employee to perform his or her assigned duties, which results in, or was intended to result in (A) demonstrable injury to the Corporation, monetary or otherwise or (B) gain to, or enrichment of, the Grantee at the Corporation’s expense.
(g) “Change in Control” means the first to occur of the following events:
(i) Any person, entity or group, other than an Excluded Person (as defined below), shall become the beneficial owner of such number of Shares, and/or any other class of stock of the Corporation then outstanding that is entitled to vote in the election of directors (or is convertible into shares so entitled to vote) as together possess more than 50% of the voting power of all of the then outstanding shares of all such classes of stock of the Corporation so entitled to vote. “Excluded Person” means (A) the Corporation or its subsidiaries, (B) any employee benefit plan of the Corporation or its subsidiaries, (C) an underwriter temporarily holding securities pursuant to an offering of such securities, (D) a corporation owned, directly or indirectly, by the shareholders of the Corporation in substantially the same proportions as their ownership of stock in the Corporation, or (E) any person, entity or group which, as of the Effective Date of this Plan, is the beneficial owner of such number of Shares and/or such other class of stock of the Corporation as together possess 5% of such voting power; and for these purposes “group” shall mean persons who act in concert as described in Section 14(d)(2) of the 1934 Act;
(ii) Continuing Directors shall for any reason cease to constitute a majority of the Board. “Continuing Director” shall mean a member of the Board who either was a member of the Board on the Effective Date or who subsequently became a member of the Board and whose election, or nomination for election, was approved by a vote of at least two-thirds (2/3) of the Continuing Directors then in office;
(iii) The Corporation disposes of all or substantially all of the business of the Corporation to a party or parties other than a subsidiary or affiliate of the Corporation pursuant to a partial or complete liquidation, sale of assets (including stock of a subsidiary of the Corporation) or otherwise; or
(iv) The Corporation is involved in a merger, consolidation or share exchange with any other entity, or the Corporation’s voting securities are issued in any such transaction, other than a merger, consolidation or share exchange that either: (A) results in the shareholders of the Corporation immediately prior to such transaction continuing to hold, in substantially the same proportion, at least fifty percent (50%) of the voting securities of the
Corporation or surviving entity in the transaction (or any parent thereof), or (B) is effected to implement a recapitalization of the Corporation (or similar transaction) in which no person, entity or group (other than an Excluded Person) is or becomes the beneficial owner, directly or indirectly, of securities of the Corporation (not including in the securities beneficially owned by such person, entity or group any securities acquired directly from the Corporation after the Effective Date pursuant to express authorization by the Board that refers to this exception) representing fifty percent (50%) or more of either the then Shares or the combined voting power of the Corporation’s then outstanding voting securities.
Notwithstanding the foregoing, no “Change in Control” shall be deemed to have occurred if there is consummated any transaction or series of integrated transactions immediately following which the holders of the Shares immediately prior to such transaction or series of transactions continue to own, directly or indirectly, in the same proportions as their ownership in the Corporation, an entity that owns all or substantially all of the assets or voting securities of the Corporation immediately following such transaction or series of transactions.
(h) “Code” means the Internal Revenue Code of 1986, as it may be amended from time to time. Any reference to a specific section of the Code shall include all regulations and guidance issued thereunder and any successor provision.
(i) “Committee” means the Compensation and Leadership Development Committee of the Board, or any other committee the Board may subsequently appoint to administer the Plan, or the person or persons to whom the Committee has delegated its power and responsibilities under Section 4. Notwithstanding the foregoing, with respect to Awards granted to non-employee directors, references to the “Committee” shall mean the Board.
(j) “Common Stock” means the common stock of the Corporation having a par value of $.01 per share.
(k) “Corporation” means Plexus Corp., a Wisconsin corporation.
(l) “Disability” means a permanent and total disability as described in Code Section 22(e)(3).
(m) “Dividend Equivalent” means the right to receive a payment, in cash or Shares, equal to the cash dividends or other cash distributions paid with respect to a Share.
(n) “Fair Market Value” means, as applied to a specific date, the price of a Share that is based on the opening, closing, actual, high, low or average selling prices of a Share reported on any established stock exchange or national market system including without limitation the Nasdaq Stock Market and the New York Stock Exchange on the applicable date, the preceding trading day, the next succeeding trading day, or an average of trading days, as determined by the Committee in its discretion. Unless otherwise specified in an Award Agreement, Fair Market Value shall be deemed to be equal to (i) the reported closing price of a Share on the Nasdaq Stock Market, the New York Stock Exchange or such other established stock exchange on such date, or if no sale of Shares shall have been made on that date, on the preceding date on which there was such a sale, (ii) if the Shares are not then listed on an exchange, the last trade price per Share in the over-the-counter market as quoted on Nasdaq or the pink sheets or successor publication of the National Quotation Bureau on such date, or (iii) if the Shares are not then listed or quoted as referenced above, an amount determined in good faith by the Board or the Committee; provided that for purposes of a sale of a Share or an Option or Stock Appreciation Right exercise, the actual trading price of a Share at the time of the sale or exercise, as applicable, shall be the “Fair Market Value” for purposes of such transaction.
(o) “Grant Date” means the date on which an Award is granted, which shall be the date on which the Committee authorizes the Award or such later date as the Committee shall determine in its sole discretion.
(p) “Grantee” means an individual who has been granted an Award.
(q) “Incentive Stock Option” means an Option that is intended to meet the requirements of Section 422 of the Code.
(r) “Non-Qualified Stock Option” means an Option other than an Incentive Stock Option.
(s) “Option” means the right to purchase Shares at a stated price on one or more dates in the future. An Option may either be an Incentive Stock Option or Non-Qualified Stock Option, as appropriate.
(t) “Other Stock Award” means an Award described in Section 9.
(u) “Performance Goal” means any objective or subjective performance goal established by the Committee with respect to an Award. Performance Goals may, include, but are not limited to, the following business criteria measured on an absolute basis or in terms of growth or reduction or with specified adjustments: income (pre-tax or after-tax and with adjustments as stipulated), earnings per share (basic and diluted), return on equity, return on capital employed (ROCE), revenue, sales, gross profit, gross profit margin, operating profit, operating profit margin return on assets, return on tangible book value, return on sales, earnings before or after taxes including earnings before interest, taxes, depreciation and/or amortization (EBIDTA), expense ratio, increase in stock price, return on invested capital (ROIC), total shareholder return, shareholder value added (or a derivative thereof), free cash flow, operating cash flow, working capital, cash cycle days, expenses, cost reduction, market share, level or amount of acquisitions, debt reduction, on-time to commit, on-time to request, manufacturing process yield, quality yield, economic profit or return, operating margin, objective measures of productivity or operating efficiency, new business wins, net promoter score and customer satisfaction. Such performance goals may be based solely by reference to the Corporation’s performance or the performance of an affiliate, division, business segment or business unit of the Corporation or any of its subsidiaries, or based upon the relative performance of other companies or upon comparisons of any of the
indicators of performance relative to other companies. Performance Goals may also relate to a Grantee’s individual performance.
The Committee reserves the right to adjust Performance Goals, or modify the manner of measuring or evaluating a Performance Goal, for any reason the Committee determines is appropriate, including, but not limited to, excluding the impact of Extraordinary Events. “Extraordinary Event” means any one of the following events: (i) restructurings, discontinued operations, impairment of goodwill or long-lived assets, follow-on stock offerings, extraordinary items, and other unusual or non-recurring charges, (ii) an event either not directly related to the operations of the Corporation or not within the reasonable control of the Corporation’s management, (iii) the cumulative effects of tax or accounting changes in accordance with generally accepted accounting principles, (iv) changes in tax regulations or laws, or (v) the effect of a merger or acquisition. The inclusion in an Award Agreement of specific adjustments or modifications shall not be deemed to preclude the Committee from making other adjustments or modifications, in its discretion, as described herein, unless the Award Agreement provides that the adjustments or modifications described in such agreement shall be the sole adjustments or modifications.
(v) “Performance Stock Unit” means the right to receive a Share, or a cash payment equal to the Fair Market Value of a Share, in the future contingent on the achievement of one or more Performance Goals.
(w) “Plan” means the Plexus Corp. 2024 Omnibus Incentive Plan as set forth herein, as it may be amended from time to time.
(x) “Rule 16b-3” means Rule 16b-3 promulgated under the 1934 Act, and any future regulation amending or superseding such rule.
(y) “Restricted Stock” means Shares which are subject to forfeiture and/or restrictions on transfer, which may lapse upon the achievement of Performance Goals or upon completion of a period of service or such other conditions established by the Committee.
(z) “Restricted Stock Unit” means the right to receive a Share, or a cash payment equal to the Fair Market Value of a Share, in the future contingent on completion of a period of service or satisfaction of other specified conditions.
(aa) “Retirement” means separation from the Corporation other than for Cause on or after age fifty-five (55) and after employment by the Corporation for at least five (5) consecutive years immediately prior to separation, unless otherwise stated in the applicable Award Agreement.
(bb) “Share” means one share of Common Stock.
(cc) “Stock Appreciation Right” or “SAR” means the right to receive cash or Shares in an amount equal to the excess of the Fair Market Value of one share of Common Stock on the date the SAR is exercised over the SAR’s exercise price.
3. Shares Subject to Award.
(a) Plan Reserve. Subject to adjustment as provided in Section 12(b) hereunder, the number of Shares that may be issued under the Plan shall not exceed the sum of (i) eight hundred thousand (800,000) Shares plus (ii) the number of Shares available for issuance under the 2016 Plan that had not been made subject to outstanding awards as of the Effective Date, plus (iii) subject to the rules of subsection (b), any Shares subject to outstanding awards under the 2016 Plan as of the Effective Date that thereafter lapse, expire, terminate, or are cancelled (the “Share Limit”), all of which may be issued in the form of Incentive Stock Options except as limited by subsection (b). Shares issued under the Plan may come from authorized but unissued Shares, from treasury Shares held by the Corporation, from Shares purchased by the Corporation or an independent agent in the open market for such purpose, or from any combination of the foregoing. The maximum number of Shares which could be issued under an Award shall count against the Share Limit as of the Grant Date of an Award, but such Shares may again become available for new Awards as provided in subsection (b).
(b) Share Recycling.
(i) To the extent an Award lapses, expires, terminates or is cancelled without the issuance of Shares thereunder, or to the extent an Award is settled in cash, then the Shares subject to such Award may again be used for new Awards under this Plan.
(ii) If Shares are issued under any Award and the Corporation subsequently reacquires them because the Award has expired, is canceled, is forfeited or otherwise has terminated, then the Shares delivered in respect of such Award may again be used for new Awards under this Plan, provided that such Shares cannot be issued pursuant to Incentive Stock Options.
(iii) Shares subject to an Award shall not again be made available for issuance under the Plan if such shares are delivered to or withheld by the Corporation to pay the exercise price of an Option, or delivered to or withheld by the Corporation to pay the withholding taxes related to an Award. In addition, Shares not issued in connection with the stock settlement of a SAR upon its exercise or purchased by the Corporation using proceeds from Option exercises shall not become available for new grants hereunder.
(c) Issuance or Assumption in Connection with Transaction. Notwithstanding any other provision of this Plan, in connection with any merger, consolidation, acquisition of property or stock, or reorganization, the Committee may authorize the issuance or assumption of awards under this Plan upon such terms and conditions as it may deem appropriate, and such awards shall not count against the Plan’s Share Limit.
4. Administration of the Plan.
(a) General. The Plan shall be administered by the Committee, provided that only the Board shall have the power to grant Awards to non-employee directors (unless the Board delegates such power in accordance with subsection (b) below). The Committee shall have full and final authority, in its discretion, but subject to the express provisions of the Plan to:
(i) grant Awards, and to determine the terms of each Award, including but not limited to the individuals to whom, the number of shares subject to, and the time or times at which, Awards shall be granted;
(ii) interpret the Plan and any Award Agreement;
(iii) prescribe, amend and rescind rules and regulations relating to the Plan;
(iv) determine the terms and provisions of the respective Award Agreements (which need not be identical) by which Awards shall be evidenced;
(v) make all other determinations deemed necessary or advisable for the administration of the Plan;
(vi) require withholding from or payment by a Grantee of any federal, state or local taxes;
(vii) impose on any Grantee such additional conditions, restrictions and limitations upon grant, exercise and retention of Awards as the Committee shall deem appropriate;
(viii) treat any Grantee who Retires as a continuing employee for purposes of the Plan; and
(ix) modify, extend or renew any Award previously granted; provided, however, that this provision shall not provide authority to reprice Awards to a lower exercise price in violation of Section 5(g)(ii).
(b) Delegation. To the extent applicable law permits, the Board may delegate all or any part of its responsibilities and powers to any committee of the Board, subcommittee, or any executive officer or officer of the Corporation, and the Committee may delegate all or any part of its responsibilities and powers to a subcommittee or any executive officer or officers of the Corporation selected by it. Any such delegation may be revoked by the Board or by the Committee at any time.
5. Terms Applicable to All Awards.
(a) Grantees.
(i) Awards may be granted to directors, officers and key employees of the Corporation and any of its subsidiaries at any time, as determined by the Committee in its sole discretion. In selecting the individuals to whom Awards shall be granted, as well as the size of such Awards, the Committee shall take into consideration such factors as it deems relevant pursuant to accomplishing the purposes of the Plan. The Grantee’s receipt of an Award shall not entitle the Grantee to receive an Award at any future time.
(ii) In no event shall the aggregate grant date value (determined in accordance with generally accepted accounting principles) of all Awards granted to a non-employee director for his or her service on the Board in a calendar year, taken together with any cash fees paid during that calendar year to the non-employee director for his or her service on the Board, exceed seven hundred and fifty thousand dollars ($750,000), provided that such limit shall be increased to nine hundred thousand dollars ($900,000) with respect to a non-employee director serving as Lead Director or Chairperson of the Board or with respect to a non-employee director’s first year on the Board.
(b) Evidence of Awards. All Awards shall be evidenced by an Award Agreement which shall be delivered to the Participant as soon as practicable after the Grant Date. If the Grantee fails to accept the Award within thirty (30) days of the date of the Award Agreement’s delivery to the Grantee (or by such other deadline imposed by the Committee), then the Award may be deemed withdrawn. Terms and conditions contained in an Award Agreement need not be the same for all Grantees.
(c) Minimum Vesting Period. All Awards granted under the Plan shall have a minimum vesting period of one year from the Grant Date, provided that such minimum vesting period will not apply to Awards with respect to up to five percent (5%) of the Share Limit. For purposes of Awards granted to non-employee directors, “one year” may mean the period of time from one annual shareholders meeting to the next annual shareholders meeting, provided that such period of time is not less than fifty (50) weeks.
(d) Discretion to Accelerate. Notwithstanding Section 5(c), the Committee may accelerate the vesting of an Award or deem an Award to be earned, in whole or in part, in the event of a Participant’s death, Disability, Retirement, or termination without Cause, or upon any other event as determined by the Committee in its sole and absolute discretion.
(e) Dividends and Dividend Equivalents. In no event may dividends or Dividend Equivalents be awarded with respect to Options, SARs or any other appreciation-based Award. Notwithstanding anything to the contrary in this Plan, and for the avoidance of doubt, this Plan expressly prohibits the payment of dividends or Dividend Equivalents on unvested Awards for all equity Award types.
(f) Non-Transferability of Awards. Awards granted hereunder shall, by their terms, be non-transferable by a Grantee other than by will or the laws of descent and distribution and shall be exercisable during the Grantee’s lifetime solely by the Grantee or the Grantee’s duly appointed guardian or personal representative. Notwithstanding the foregoing, the Committee may permit a Grantee to transfer an Award, other than an Incentive Stock Option, to a family member or a trust or partnership for the benefit of a family member, in accordance with rules established by the Committee.
(g) Amending Outstanding Awards.
(i) Except as provided in clause (ii) below, the Committee may amend, or cancel any Award, or waive any restrictions or conditions applicable to any Award, provided that the Grantee agrees to any amendment or cancellation. Notwithstanding the foregoing, the Committee need not obtain Grantee consent to amend or cancel an award in the following circumstances: (A) pursuant to Sections 11 or 12(b) or as otherwise specifically authorized under the Plan; (B) to the extent the Committee deems such action necessary to preserve favorable accounting or tax treatment of any Award for the Corporation; or (C) to the extent the Committee determines that such action does not materially and adversely affect the value of an Award or that such action is in the best interest of the affected Grantee.
(ii) Except as permitted by Section 12(b), the following actions are prohibited under the Plan unless specifically approved by the Corporation’s shareholders: (A) amending the terms of outstanding Options or SARs to reduce the exercise price of thereof; (B) canceling outstanding Options or SARS in exchange new Options or SARs with an exercise price that is less than the exercise price of the original Options or SARs; or (C) canceling outstanding Options or SARs with an exercise price above the current Fair Market Value of a Share in exchange for cash or other securities or Awards issued under the Plan.
6. Options and Stock Appreciation Rights.
Subject to the below and the other terms of this Plan, the Committee will determine all terms and conditions of each Option and SAR, including the number of Shares subject to the Option or SAR, the vesting schedule, the exercise price, and the requirements of exercise.
(a) Designation. If the Committee grants an Option, then it will determine whether the Award is an Incentive Stock Option or Non-Qualified Stock Option.
(i) Incentive Stock Options: Any Option designated as an Incentive Stock Option shall comply with the requirements of Section 422 of the Code, including the requirement that incentive stock options may only be granted to individuals who are employed by the Corporation or a subsidiary corporation of the Corporation. No Incentive Stock Option shall be granted to any individual who, immediately before the Option is granted, directly or indirectly owns (within the meaning of Section 425(d) of the Code) shares representing more than ten percent (10%) of the total combined voting power of all classes of stock of the Corporation or its subsidiaries (a “10% Stockholder”), unless, at the time the option is granted, and in accordance with the provisions of Section 422 of the Code, the option exercise price is 110% of the Fair Market Value of a Share on the date of grant and the Option expires no later than 5 years after the Grant Date.
(ii) Non-Qualified Stock Options: All Options not subject to or in conformance with the additional restrictions required to satisfy Section 422 of the Code shall be designated as Non-Qualified Stock Options.
(b) Exercise Price. The exercise price per Share covered by each Option and SAR shall be not less than the Fair Market Value of a Share on the Grant Date.
(c) Vesting and Exercise. An Option or SAR shall vest and become exercisable at such times as are set forth in the Award Agreement, provided that no Option shall be exercisable after the tenth (10th) anniversary of the Grant Date (or the fifth (5th) anniversary of the Grant Date for an Incentive Stock Option granted to a 10% Stockholder), and no SAR shall be exercisable after the 10th anniversary of the Grant Date. No Option or SAR may be exercised if, in the opinion of counsel for the Corporation, the issuance or sale of Stock or payment of cash by the Corporation, as appropriate, pursuant to such exercise shall be unlawful for any reason.
(d) Payment of Option Exercise Price. The Grantee may pay the Option exercise price with (i) cash, (ii) outstanding Shares beneficially owned by the Grantee, the Grantee’s spouse or both, (iii) with the approval of the Committee, or if the applicable Award Agreement so provides, by surrendering to the Corporation Shares otherwise receivable upon exercise of the Option, (iv) any combination of the foregoing, or (v) through any means as permitted by the Committee. If Shares are used in part or full payment of the exercise price of an Option, such Shares shall be valued as of the date of exercise of the Option at the Fair Market Value of the Shares.
(e) Settlement of SARs. Upon the exercise of SARs, the Grantee shall be entitled to receive an amount determined by multiplying (i) the difference obtained by subtracting the exercise price of the SAR from the Fair Market Value of a Share on the date of exercise, by (ii) the number of SARs exercised. At the discretion of the Committee, the payment upon the exercise of the SARs may be in cash, in Shares, or in some combination thereof.
7. Restricted Stock Awards.
The Committee will determine all terms of and conditions of an Award of Restricted Stock, including the number of Shares granted, the forfeiture and/or transfer restrictions applicable to the Shares, the vesting schedule, and whether the Restricted Stock will be subject to any Performance Goals, subject to the following:
(a) Until the applicable restrictions lapse or the conditions are satisfied, the Grantee shall not be permitted to sell, assign, transfer, pledge or otherwise encumber the Restricted Stock.
(b) If and when the applicable restrictions lapse, unrestricted Shares shall be issued to the Grantee.
(c) A Grantee receiving an Award of Restricted Stock Shares shall have all of the rights of a shareholder of the Corporation, including the right to vote the Shares and the right to receive any dividends, subject to Section 5(e). Unless otherwise determined by the Committee, cash dividends that are paid while the Restricted Stock is unvested shall be accumulated and paid in cash at the same time, and to the same extent as, the Restricted Stock vests, and stock dividends that are paid while the Restricted Stock is unvested shall be paid in the form of additional Restricted Stock having the same terms and conditions as the original Restricted Stock.
8. Restricted Stock Units and Performance Stock Units.
Subject to the terms of the Plan, the Committee will determine all terms and conditions of each grant of Restricted Stock Units and Performance Stock Units, including the number of units granted, the vesting schedule of the Award, whether the Award will be settled in cash or Shares or a combination thereof, whether the Award entitles the Grantee to Dividend Equivalents and, if applicable, the Performance Goals of the Award. If an Award includes Dividend Equivalents, they will either, at the discretion of the Committee, be (a) accumulated and paid, in cash or Shares as determined in the Committee’s discretion, at the same time and to the same extent that the underlying Award vests or is earned or (b) reinvested in additional units that are subject to the same terms and conditions (including vesting and forfeiture) as the original units. For clarity, in no event will a Participant receive Dividend Equivalent payments unless, until and to the same extent as the original units vest and are paid.
9. Other Stock Awards.
Subject to the terms of the Plan, the Committee will determine all terms and conditions of a grant of Other Stock Awards. Other Stock Awards may include, but are not limited to, unrestricted Shares granted as replacement for other compensation to which the Grantee is entitled, such as in payment of director fees, in lieu of cash compensation, in exchange for cancellation of a compensation right, or as a bonus.
10. Cash Incentive Awards.
The Committee shall determine all terms of conditions of Cash Incentive Awards, including the Performance Goals and the timing of payment. For clarity, this Plan does not limit the authority of the Corporation, the Board or the Committee, or any subsidiary, to award cash bonuses or authorize any other cash compensation to any person outside of the Plan.
11. Change in Control.
(a) Treatment of Awards. Upon a Change in Control:
(i) All Awards then outstanding and still subject solely to time-vesting conditions shall become one hundred percent (100%) fully vested or exercisable;
(ii) the vesting of Awards then outstanding and still subject to vesting based, in whole or part, on the achievement of one or more Performance Goals for which the performance period has not been completed as of the time of the Change in Control, will be determined either (A) by treating the date of the Change in Control as the last day of the performance period and measuring actual performance as of such date, or (B) assuming that all such Performance Goals had been met at target (provided that if performance is measured as a sum or average of performance over separate periods, then actual performance shall be used for any completed periods and target performance shall be used for any incomplete periods), whichever of (A) or (B) is set forth in the applicable Award Agreement; and
(iii) the Committee may, in its discretion and without the consent of any Grantee, cancel any or all outstanding Awards as of the date of the Change in Control and pay the vested value thereof on, or as soon as practicable following, the Change in Control, in either the same form of consideration (such as cash, securities, or a combination of the two) as received by the Corporation (or the Corporation’s shareholders, as applicable) in the transaction or in cash. For purposes hereof, the vested value of an Award equals:
(A) For Options and SARs, the excess, if any, of the price per share paid or deemed paid in the Change in Control transaction, as determined by the Committee (the “Change in Control Price”) over the exercise price thereof, multiplied by the number of vested Shares subject to the Award, provided that if the exercise price is greater than the Change in Control Price, then the Award may be cancelled for no consideration;
(B) For Restricted Stock, Restricted Stock Units, Performance Share Units, and any other Award that is valued in relation to the full Fair Market Value of a Share, the Change in Control Price multiplied by the number of vested Shares subject to the Award; and
(C) For Cash Incentive Awards and all other awards, the vested amount due under such Award.
(b) Code Sections 280G and 4999. In the event that the Corporation determines that any payment, benefit or transfer by the Corporation under this Plan or any other plan, agreement, or arrangement to or for the benefit of the Grantee (in the aggregate, the “Total Payments”) would be subject to the tax (“Excise Tax”) imposed by Code Section 4999 but for this Section11(b), then, notwithstanding any other provision of this Plan to the contrary, the Total Payments shall be delivered either (i) in full or (ii) in an amount such that the value of the aggregate Total Payments that the Grantee is entitled to receive shall be One Dollar ($1.00) less than the maximum amount that the Grantee may receive without being subject to the Excise Tax, whichever of clause (i) or (ii) results in the receipt by the Grantee of the greatest benefit on an after-tax basis (taking into account applicable federal, state and local income taxes and the Excise Tax). In the event that clause (ii) results in a greater after-tax benefit to the Grantee, payments or benefits included in the Total Payments shall be reduced or eliminated by applying the following principles, in order: (A) the payment or benefit with the higher ratio of the parachute payment value to present economic value (determined using reasonable actuarial assumptions) shall be reduced or eliminated before a payment or benefit with a lower ratio; (B) the payment or benefit with the later possible payment date shall be reduced or eliminated before a payment or benefit with an earlier payment date; and (C) cash payments shall be reduced prior to non-cash benefits.
12. General Provisions.
(a) Withholding. The Corporation shall have the power and the right to deduct or withhold, or require a Grantee to remit to the Corporation, an amount sufficient to satisfy Federal, state, and local taxes (including the Grantee’s FICA obligation) and other amounts required by law to be withheld with respect to income received from the grant, vesting, payment or settlement of an Award or disposition of any Shares acquired under an Award. A Grantee may elect, subject to such rules and regulations as the Committee may adopt from time to time, to use Shares that would otherwise be issued to the Grantee under such Award for tax withholding purposes; provided that the Shares withheld may not have a Fair Market Value exceeding the maximum statutory tax rates in the Grantee’s applicable tax jurisdictions.
(b) Effect of Change in Stock Subject to Plan. In the event of a reorganization (other than a reorganization under bankruptcy or insolvency laws), recapitalization, stock split, stock dividend, merger, consolidation, rights offering or like transaction (a “Corporate Event”), the Committee will, in such manner as it may, in its discretion, deem equitable to prevent the dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, adjust the following: (i) the number of and class of shares which may be delivered under the Plan, (ii) the number and class of shares subject to outstanding Awards granted under the Plan, (iii) the exercise price of any Option or SAR, and (iv) the Performance Goals of any Award. Notwithstanding the foregoing, in the case of a stock dividend (other than a stock dividend declared in lieu of an ordinary cash dividend) or subdivision or combination of the Shares (including a reverse stock split), if no action is taken by the Committee, adjustments contemplated by this subsection that are proportionate shall nevertheless automatically be made as of the date of such stock dividend or subdivision or combination of the Shares. If the Corporate Event results in the elimination of the Shares, then the Committee may, subject to the approval of the Board, or the board of directors of any corporation assuming the obligations of the Corporation hereunder, take action regarding each outstanding Award pursuant to either clause (A) or (B) below without the Grantee’s consent:
(A) substituting, on an equitable basis (as determined by the Committee), appropriate shares of the surviving or related corporation for each Share subject to an outstanding Award, and adjusting the exercise price of any Option or SAR, provided that the excess of the aggregate Fair Market Value of the Shares subject to such Option or SAR over the exercise price thereof immediately before such substitution is not more than the excess of the aggregate fair market value of the substituted shares made subject to the Option or SAR over the exercise price thereof immediately after such substitution; or
(B) Cancelling any Award in exchange for a cash payment equal to:
1) For any cancelled Option or SAR, the excess of the Transaction Price (as defined below) over the exercise price, multiplied by the number of Shares subject to such Option or SAR. No payment shall be made to a Grantee for any cancelled Option or SAR if the exercise price exceeds the Transaction Price.
2) For Restricted Stock, Restricted Stock Units, and Performance Stock Units, the Transaction Price multiplied by the number of Shares subject to such Award.
3) For all Other Stock Awards, the value of the Award as of the time of the cancellation based on the Transaction Price, as determined by the Committee in its discretion.
For purposes of this clause (B), “Transaction Price” shall equal the value, as determined by the Committee, of the cash and/or property paid with respect to one Share as a result of the Corporate Event.
(c) No Employment or Retention Agreement Intended. Neither the establishment of, nor the awarding of Awards under this Plan shall be construed to create a contract of employment or service between any Grantee and the Corporation or its subsidiaries; nor does it give any Grantee the right to continued service in any capacity with the Corporation or its subsidiaries or limit in any way the right of the Corporation or its subsidiaries to discharge any Grantee at any time and without notice, with or without Cause, or to any benefits not specifically provided by this
Plan, or in any manner modify the Corporation’s right to establish, modify, amend or terminate any profit sharing or retirement plans.
(d) Shareholder Rights. Grantee shall not, by reason of any Awards granted hereunder, have any right of a shareholder of the Corporation with respect to the Shares covered by the Awards until Shares have been issued to Grantee.
(e) Controlling Law. The law of the State of Wisconsin, except its law with respect to choice of law, shall be controlling in all matters relating to the Plan.
(f) Award Deferral. The Committee may permit a Grantee to elect to defer payments of Restricted Stock Awards, Restricted Stock Units, Performance Stock Units, Other Stock Awards and Cash Incentive Awards; provided that any such deferrals shall comply with applicable requirements of the Code, including Code Section 409A. Any deferrals shall be subject to the terms of the applicable deferred compensation plan.
(g) Clawback. The Awards granted under this Plan are subject to the terms of the Plexus Corp. Compensation Recovery Policy, any successor policy, any other recoupment, clawback or similar policy as the Corporation may adopt from time to time, as well as any similar requirements of applicable law or exchange rules, any of which could in certain circumstances require repayment or forfeiture of Awards or any Shares or other cash or property received with respect to the Awards (including any value received from a disposition of the Shares acquired upon payment of the Awards).
(h) Section 409A Compliance. To the extent that a benefit under the Plan is subject to the requirements of Code Section 409A, it is intended that the Plan, as applied to that benefit, comply with the requirements of Code Section 409A, and the Plan shall be so administered and interpreted. The Board or Committee may make any changes required to conform the Plan and any Award with applicable Code provisions and regulations relating to Code Section 409A. The payment of an Award that is subject to Code Section 409A shall not be accelerated upon a Change in Control unless such event also constitutes a change in control event under Code Section 409A. If a Grantee is a “specified employee” as defined under Code Section 409A and the Grantee’s Award is to be settled on account of the Grantee’s separation from service (for reasons other than death) and such Award constitutes “deferred compensation” as defined under Code Section 409A, then any portion of the Grantee’s Award that would otherwise be settled during the six-month period commencing on the Grantee’s separation from service shall be settled as soon as practicable following the conclusion of the six-month period (or following the Grantee’s death if it occurs during such six-month period) to the extent needed to comply with Code Section 409A.
(i) Indemnification. In addition to such other rights of indemnification as they may have, the members of the Committee and other Corporation employees administering the Plan and the Board members shall be indemnified by the Corporation against the reasonable expenses, including attorneys’ fees actually and necessarily incurred in connection with the defense of any action, suit or proceeding, or in connection with any appeal therein, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with the Plan or any Award granted thereunder, and against all amounts paid by them in settlement thereof (provided such settlement is approved by independent legal counsel selected by the Corporation) or paid by them in satisfaction of a judgment in any such action, suit or proceeding, except in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such member acted in bad faith in the performance of his duties; provided that within 20 days after institution of any such action, suit or proceeding, the member shall in writing offer the Corporation the opportunity, at its own expense, to handle and defend the same.
(j) Use of Proceeds. The proceeds from the sale of Shares pursuant to Options or other Awards granted under the Plan shall constitute general funds of the Corporation.
(k) Amendment of the Plan. The Board may from time to time amend, modify, suspend or terminate the Plan; provided, however, that no such action shall be made without shareholder approval where such change would be required in order to comply with Rule 16b-3, the Code, the listing requirements of any principal securities exchange or market on which the Shares are then traded, or any other applicable law.
(l) Foreign Participation. To assure the viability of Awards granted to Grantees employed or residing in countries or jurisdictions other than the United States of America, the Committee may provide for such special terms as it may consider necessary or appropriate to accommodate differences in local law, tax policy or custom, including different definitions for those terms defined in Section 2. Moreover, the Committee may approve such supplements to, or amendments, restatements or alternative versions of, this Plan as it determines is necessary or appropriate for such purposes. Any such amendment, restatement or alternative versions that the Committee approves for purposes of using this Plan in one country or jurisdiction will not affect the terms of this Plan for any other country or jurisdiction. In addition, all such supplements, amendments, restatements or alternative versions must comply with the provisions of Section 12(k).
(m) No Fractional Shares. No fractional Shares or other securities may be issued or delivered pursuant to this Plan. If, but for this provision, fractional Shares would be issuable pursuant to an Award, then such fractional Share shall be canceled without payment thereunder. Notwithstanding the foregoing, the Committee may alternatively decide, in its sole discretion, to settle such fractional shares in cash, other securities or other property.
(n) Termination of the Plan. The Plan will expire ten (10) years after the Effective Date unless the shareholders approve an extension of the Plan before such time; provided, however, that the Plan shall terminate at such earlier time as the Board may determine. Any such termination, either partially or wholly, shall not affect any Awards then
outstanding under the Plan. In addition, the termination of the Plan will not affect the authority of the Board and the Committee to administer the Plan with respect to Awards outstanding prior to the date of termination.
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