SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
F 0 R M 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): May 17, 1999
COLUMBUS MCKINNON CORPORATION
----------------------------------------------------------------
(Exact name of registrant as specified in its charter)
NEW YORK
----------------------------------------------------------------
(State or other jurisdiction of incorporation)
0-27618 16-0547600
- ------------------------ ---------------------------------
(Commission File Number) (IRS Employer Identification No.)
140 JOHN JAMES AUDUBON PARKWAY, AMHERST, NEW YORK 14228-1197
- ------------------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code: (716) 689-5400
--------------
- ----------------------------------------------------------------
(Former name or former address, if changed since last report)
<PAGE>
Item 5. OTHER EVENTS
(a) The registrant's press release dated May 17, 1999,
regarding its financial results for the fiscal year ended March 31, 1999 is
attached.
(b) On May 17, 1999, the registrant's Board of Directors
approved certain amendments to the registrant's by-laws. The amendments expand
the notice and record date periods from 50 to 60 days, as now permitted under
New York law, and require advance notice from shareholders who intend to present
an item of business at a meeting of shareholders (other than a proposal
submitted for inclusion in the registrant's proxy materials) or to nominate
directors for election. With respect to an annual meeting, shareholders must
provide notice to the registrant no earlier than ninety days and no later than
sixty days prior to the first anniversary of the registrant's annual meeting of
shareholders for the preceding year. The registrant's restated by-laws are
attached hereto as Exhibit 3.
Item 7. EXHIBITS
EXHIBIT NUMBER DESCRIPTION
3 Restated By-Laws of the Registrant
99 Press Release dated May 17, 1999
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
COLUMBUS McKINNON CORPORATION
-----------------------------
By: /S/ ROBERT L. MONTGOMERY, JR.
-----------------------------
Name: Robert L. Montgomery, Jr.
Title: Executive Vice President
Dated: May 17, 1999
<PAGE>
EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION PAGE
- -------------- ----------- ----
3 Restated By-Laws of the Registrant 5
99 Press Release dated May 17, 1999 20
RESTATED
BY-LAWS
OF
COLUMBUS MCKINNON CORPORATION
(THE "CORPORATION")
AS OF MAY 17, 1999
-------------------------------
ARTICLE I
SHAREHOLDERS
SECTION 1.01. ANNUAL MEETING. The annual meeting of the shareholders
may be held at such time, date and place, within or without the State of New
York, as shall be determined by the Board of Directors and stated in the notice
of the meeting, or in a waiver of notice thereof.
SECTION 1.02. SPECIAL MEETINGS. Special meetings of the shareholders,
for any purpose or purposes, may be called at any time only by the Chairman of
the Board or the President or by resolution of the Board of Directors. Special
meetings of the shareholders shall be held at such time, date and place, within
or without the State of New York, as shall be fixed by the person or persons
calling the meeting and stated in the notice or waiver of notice of the meeting.
SECTION 1.03. NOTICE OF MEETINGS OF SHAREHOLDERS. Whenever the
shareholders are required or permitted to take any action at a meeting, written
notice of the meeting shall be given which shall state the place, date and time
of the meeting and, in the case of a special meeting, the purpose or purposes
for which the meeting is called and at whose direction it is being issued. The
written notice of any meeting shall be given, personally or by mail, not less
than ten (10) nor more than sixty (60) days before the date of the meeting to
each shareholder entitled to vote at such meeting.
SECTION 1.04. QUORUM. At all meetings of the shareholders, the holders
of a majority of the shares issued and outstanding and entitled to vote thereat,
present in person or by proxy, shall constitute a quorum for the transaction of
any business.
When a quorum is once present to organize a meeting, it is not broken
by the subsequent withdrawal of any shareholders. The shareholders present may
adjourn the meeting despite the absence of a quorum and at any such adjourned
meeting at which a quorum shall be present or represented, the Corporation may
transact any business which might have been transacted at the original meeting.
Except as otherwise provided by law, notice of the adjourned meeting shall not
be necessary if the time, date and place thereof are announced at the meeting.
SECTION 1.05. VOTING. At any meeting of the shareholders, every
shareholder entitled to vote thereat shall be entitled to vote in person or by
proxy. Except as otherwise provided by law or the Certificate of Incorporation,
whenever the shareholders are required or permitted to take any action at a
meeting, each shareholder of record entitled to vote thereat shall be entitled
to one vote for each share from which such shareholder's voting rights are
derived standing in his name on the books of the Corporation. All elections of
directors shall be determined by a plurality vote, and, except as otherwise
provided by law or the Certificate of Incorporation, all other matters shall be
determined by vote of the shares present or represented at such meeting and
voting on such matters.
SECTION 1.06. PROXIES. Every proxy must be executed in writing by the
shareholder. No proxy shall be valid after the expiration of eleven (11) months
from the date of its execution unless it shall have specified therein its
duration. Every proxy shall be revocable at the pleasure of the person executing
it, except in those cases where an irrevocable proxy is permitted by law.
SECTION 1.07. CONSENTS. Whenever by any provision of law or the
Certificate of Incorporation or these By-laws, the vote of shareholders at a
meeting thereof is required or permitted to be taken in connection with any
corporate action, the meeting and vote of shareholders may be dispensed with, if
all the shareholders who would have been entitled to vote upon the action if
such meeting were held, shall consent in writing to such corporate action being
taken.
<PAGE>
SECTION 1.08. SHAREHOLDERS LIST. A list of shareholders as of the
record date, certified by the corporate officer responsible for its preparation
or by a transfer agent, shall be produced at any meeting of shareholders upon
the request thereat or prior thereto of any shareholder. If the right to vote at
any meeting is challenged, the inspectors of election, or person presiding
thereat, shall require such list of shareholders to be produced as evidence of
the right of the persons challenged to vote at such meeting, and all persons who
appear from such list to be shareholders entitled to vote thereat may vote at
such meeting.
SECTION 1.09. APPOINTMENT OF INSPECTORS OF ELECTION. The Board of
Directors may, in advance of any meeting of the shareholders, appoint one (1) or
more inspectors to act at the meeting or any adjournment thereof. If inspectors
are not so appointed in advance of the meeting, the person presiding at such
meeting may, and on the request of any shareholder entitled to vote thereat
shall, appoint one (1) or more inspectors. In case any inspector appointed fails
to appear or act, the vacancy may be filled by appointment made by the Board of
Directors in advance of the meeting or at the meeting by the person presiding
thereat. Each inspector of election, before entering upon the discharge of his
or her duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the best of
his or her ability. No person who is a candidate for the office of director of
the Corporation shall act as an inspector at any meeting of the shareholders at
which directors are elected.
SECTION 1.10. DUTIES OF INSPECTORS OF ELECTION. Whenever one (1) or
more inspectors of election may be appointed as provided in these By-laws, he,
she or they shall determine the number of shares outstanding and entitled to
vote, the shares represented at the meeting, the existence of a quorum, and the
validity and effect of proxies, and shall receive votes, ballots or consents,
hear and determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes, ballots, or consents, determine the
result, and do such acts as are proper to conduct the election or vote with
fairness to all shareholders.
SECTION 1.11. ADVANCE NOTICE OF SHAREHOLDER PROPOSALS. The matters to
be considered and brought before any annual or special meeting of shareholders
of the Corporation shall be limited to only such matters, including the
nomination and election of directors, as shall be brought properly before such
meeting in compliance with the procedures set forth in this Section 1.11.
For any matter to be properly before any annual meeting of
shareholders, the matter must be (i) specified in the notice of annual meeting
given by or at the direction of the Board of Directors, (ii) otherwise brought
before the annual meeting by or at the direction of the Board of Directors or
(iii) brought before the annual meeting in the manner specified in this Section
1.11 by a shareholder of record. In addition to any other requirements under
applicable law and the Certificate of Incorporation and By-laws of the
Corporation, persons nominated by shareholders for election as directors of the
Corporation and any other proposals by shareholders shall be properly brought
before the meeting only if notice of any such matter to be presented by a
shareholder at such meeting of shareholders (the "Shareholder Notice") shall be
delivered to the Secretary of the Corporation at the principal executive office
of the Corporation not less than sixty nor more than ninety days prior to the
first anniversary date of the annual meeting for the preceding year; provided,
however, if and only if the annual meeting is not scheduled to he held within a
period that commences thirty (30) days before such anniversary date and ends
thirty (30) days after such anniversary date (an annual meeting date outside
such period being referred to herein as an "Other Meeting Date,), such
Shareholder Notice shall be given in the manner provided herein by the later of
the close of business on (i) the date sixty days prior to such Other Meeting
Date or (ii) the tenth day following the date such other Annual Meeting Date is
first publicly announced or disclosed. Any shareholder desiring to nominate any
person or persons (as the case may be) for election as a director or directors
of the Corporation shall deliver, as part of such Shareholder Notice, a
statement in writing setting forth the name of the person or persons to be
nominated, the number and class of all shares of each class of stock of the
Corporation owned of record and beneficially by each such person, as reported to
such shareholder by such nominee(s), the information regarding each such person
required by paragraphs (a), (e) and (f) of Item 401 of Regulation S-K adopted by
the Securities and Exchange Commission (or the corresponding provisions of any
regulation subsequently adopted by the Securities and Exchange Commission
applicable to the Corporation), each such person's signed consent to serve as a
director of the Corporation if elected, such shareholder's name and address and
the number and class of all shares of each class of stock of the Corporation
owned of record and beneficially by such shareholder. Any shareholder who gives
a Shareholder Notice of any matter proposed to be brought before the meeting
<PAGE>
(not involving nominees for director) shall deliver, as part of such Shareholder
Notice, the text of the proposal to be presented and a brief written statement
of the reasons why such shareholder favors the proposal and setting forth such
shareholder's name and address, the number and class of all shares of each class
of stock of the Corporation owned of record and beneficially by such shareholder
and, if applicable, any material interest of such shareholder in the matter
proposed (other than as a shareholder). As used herein, shares "beneficially
owned" shall mean all shares which such person is deemed to beneficially own
pursuant to Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934 (the
"Exchange Act").
Notwithstanding anything in this Section 1.11 to the contrary, in the
event that the number of directors to be elected to the Board of Directors of
the Corporation is increased and either all of the nominees for director or the
size of the increased Board of Directors is not publicly announced or disclosed
by the Corporation at least seventy (70) days prior to the first anniversary of
the preceding year's annual meeting, a Shareholder Notice shall also be
considered timely hereunder, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the Secretary of
the Corporation at the principal executive office of the Corporation not later
than the close of business on the tenth day following the first date all of such
nominees or the size of the increased Board of Directors shall have been
publicly announced or disclosed.
Only such matters shall be properly brought before a special meeting of
shareholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. In the event the Corporation calls a special
meeting of shareholders for the purpose of electing one or more directors to the
Board of Directors, any shareholder may nominate a person or persons (as the
case may be), for election to such position(s) as specified in the Corporation's
notice of meeting, if the Shareholder Notice required by Section 1.11 hereof
shall be delivered to the Secretary of the Corporation at the principal
executive office of the Corporation not later than the close of business on the
tenth day following the day on which the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting is
publicly announced or disclosed.
For purposes of this Section 1.11, a matter shall be deemed to have
been "publicly announced or disclosed" if such matter is disclosed 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.
In no event shall the adjournment of an annual meeting, or any
announcement thereof, commence a new period for the giving of notice as provided
in this Section 1.11. This Section 1.11 shall not apply to (i) shareholders
proposals made pursuant to Rule 14a-8 under the Exchange Act or (ii) the
election of directors selected by or pursuant to the provisions of Article
Fourth of the Certificate of Incorporation relating to the rights of the holders
of any class or series of stock of the Corporation having a preference over the
Common Stock as to dividends or upon liquidation to elect directors under
specified circumstances.
The person presiding at any meeting of shareholders, in addition to
making any other determinations that may be appropriate to the conduct of the
meeting, shall have the power and duty to determine whether notice of nominees
and other matters proposed to be brought before a meeting has been duly given in
the manner provided in this section 1.11 and, if not so given, shall direct and
declare at the meeting that such nominees and other matters shall not be
considered.
ARTICLE II
DIRECTORS
SECTION 2.01. MANAGEMENT OF BUSINESS. The business of the Corporation
shall be managed by or under the direction of its Board of Directors, which may
exercise all powers of the Corporation, and do all lawful acts and things,
except as otherwise provided by law, the Certificate of Incorporation or by
these By-laws.
SECTION 2.02. NUMBER AND TENURE. Except as otherwise required by law or
in the Certificate of Incorporation, the number of directors which shall
constitute the entire Board of Directors shall be not less than three (3) nor
more than nine (9) and shall be fixed, and may be increased or decreased, from
time to time by resolution adopted by a majority of the directors then in office
(inclusive of vacancies).
<PAGE>
SECTION 2.03. ELECTION AND TERM. The directors shall be elected at the
annual meeting of the shareholders, and each director shall be elected to hold
office until the next succeeding annual meeting of the shareholders and until
his successor has been duly elected and qualified.
SECTION 2.04. RESIGNATION AND REMOVAL. Any director may resign at any
time by providing written notice thereof to the Chairman of the Board, the
President or the Board of Directors, stating the effective date thereof and no
acceptance thereof shall be necessary to make it effective. The Board of
Directors only, by majority vote of all of the directors then in office, may
remove a director; provided, however, that such removal may only be for cause.
SECTION 2.05. VACANCIES. Any vacancies in the Board of Directors
occurring for any reason other than from newly created directorships resulting
from any increase in the number of directors, shall be filled by a majority of
the directors then in office, even if said directors constitute less than a
quorum, and a director elected to fill any such vacancy shall serve until the
next annual meeting of shareholders or until his successor has been duly elected
and has qualified.
Newly created directorships resulting from any increase in the number
of directors shall be filled by a majority of the entire Board of Directors
(inclusive of vacancies) and a director elected to fill any such newly created
vacancy shall serve until the next annual meeting of shareholders or until his
successor has been duly elected and has qualified.
SECTION 2.06. QUORUM. At all meetings of the Board of Directors, a
majority of the entire Board of Directors (inclusive of vacancies) shall
constitute a quorum for the transaction of business, and the act of a majority
of the directors present at which there is a quorum shall be the act of the
Board of Directors, except as may be otherwise specifically provided by law or
the Certificate of Incorporation. If a quorum shall not be present at any
meeting of the Board of Directors, the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
SECTION 2.07. ANNUAL MEETING. The newly elected Board of Directors
shall meet immediately following the adjournment of the annual meeting of
shareholders in each year at the same place, within or without the State of New
York, and no notice thereof shall be necessary. At each annual meeting of such
newly elected Board of Directors, the directors, by majority vote of the
directors present thereat, shall elect one such directors to serve as the
Chairman of the Board, whose powers and authority shall consist of presiding at
all meetings of the Board of Directors and the calling of special meetings of
the Board of Directors as provided in Section 2.09 hereof.
SECTION 2.08. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held at such time, date and place, within or without the State
of New York, as shall from time to time be fixed by the Board of Directors and
no notice thereof shall be necessary.
SECTION 2.09. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board or the President on two (2)
days' notice by mail or on one days' notice orally or by personal delivery,
telecopier or telegram to each director. Special meetings of the Board of
Directors shall be called by the Chairman of the Board or the President on like
notice on the request of any two (2) directors. Special meetings shall be held
at such time, date and place, within or without the State of New York, as shall
be fixed by the person or persons calling the meeting and stated in the notice
or waiver of notice of the meeting.
SECTION 2.10. TELEPHONE CONFERENCE. Any one or more members of the
Board of Directors, or any committee thereof, may participate in a meeting of
such Board of Directors, or committee thereof, by conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other at the same time, and participation in a meeting
in such manner shall constitute presence in person at such meeting.
SECTION 2.11. ACTION WITHOUT A MEETING. Any action required or
permitted to be taken by the Board of Directors, or any committee thereof, may
be taken without a meeting if all of the members of the Board of Directors, or
committee thereof, consent in writing to the adoption of a resolution
authorizing such action. The resolution and written consents thereto by the
members of the Board of Directors, or committee thereof, taking such action
shall be filed with the minutes of the proceedings of the Board of Directors, or
committee thereof.
<PAGE>
SECTION 2.12. EXECUTIVE COMMITTEE. The Board of Directors, by
resolution adopted by a majority of the entire Board of Directors (inclusive of
vacancies), may designate an Executive Committee to be composed of at least
three (3) directors, which Executive Committee shall have full charge of and
direct the business and affairs of the Corporation, subject to the Board of
Directors. The Executive Committee shall have the full powers of the Board of
Directors, except as otherwise provided herein, by law or in the Certificate of
Incorporation, between meetings of the Board of Directors, to transact all
ordinary business and affairs of the Corporation; shall adopt its own rules of
procedure and its place of meeting; and at every meeting of the Board of
Directors shall report the resolutions passed and business transacted by the
Executive Committee since the last meeting of the Board of Directors.
Notwithstanding the foregoing, the Executive Committee shall not have any
authority as to any of the following matters:
(1) The submission to the shareholders of any action requiring
shareholders' approval under law.
(2) The filling of vacancies in the Board of Directors or in
any committee thereof.
(3) The fixing of compensation of the directors for serving on
the Board of Directors or on any committee thereof.
(4) The amendment or repeal of the By-laws or the adoption of
new By-laws.
(5) The amendment or repeal of any resolution of the Board of
Directors which by its terms shall not be so amendable or repealable.
Two (2) members of the Executive Committee shall constitute a quorum at any
meeting of the Executive Committee. Any member of the Executive Committee shall
be subject to removal at any time by the affirmative vote of a majority of the
entire Board of Directors (inclusive of vacancies).
SECTION 2.13. OTHER COMMITTEES. The Board of Directors may, by
resolution or resolutions adopted by a majority of the entire Board of Directors
(inclusive of vacancies), designate one or more other committees, each to be
comprised of three (3) or more of the directors, which to the extent provided in
said resolution or resolutions and within the limitations prescribed by law,
shall have and may exercise the powers of the Board of Directors in the
management of the business and affairs of the Corporation; provided, however,
that no such other committee shall have any authority as to any of the matters
set forth in Section 2.12 (1) through (5).
ARTICLE III
OFFICERS
SECTION 3.01. OFFICERS. The officers of the Corporation shall be a
President, one or more Vice Presidents, a Secretary and a Treasurer. Any two or
more offices may be held by the same person, except the offices of President and
Secretary. The Board of Directors may also elect or appoint such other officers
as it may from time to time determine.
SECTION 3.02. TERMS OF OFFICE. Unless otherwise determined by the Board
of Directors, all officers shall hold office until the first meeting of the
Board of Directors following the next annual meeting of shareholders and until
his or her successor has been elected and qualified or until his or her earlier
death, resignation or removal. Each additional officer appointed or elected by
the Board of Directors shall hold office for such term as shall be determined
from time to time by the Board of Directors and until his or her successor has
been elected or appointed and qualified or until his or her earlier death,
resignation or removal.
SECTION 3.03. REMOVAL. Any officer or agent elected by the Board of
Directors may be removed by the Board of Directors whenever in its judgment the
best interests of the Corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
SECTION 3.04. VACANCIES. Any vacancy occurring in any office because of
death, resignation, removal, disqualification or otherwise, may be filled by
majority vote of the Board of Directors then in office for the unexpired portion
of the term.
SECTION 3.05. COMPENSATION. Compensation of all officers shall be
fixed by the Board of Directors, and no officer shall be prevented from
receiving such compensation by virtue of his also being a director of the
Corporation.
<PAGE>
SECTION 3.06. THE PRESIDENT. The President shall be the chief executive
officer of the Corporation; shall preside at all meetings of the shareholders;
in the absence of the Chairman of the Board, shall preside at all meetings of
the Board of Directors; subject to the powers of the Board of Directors, shall
have general charge of the business, affairs and property of the Corporation,
and control over its officers, agents and employees; and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The
President shall execute bonds, mortgages and other contracts requiring a seal,
under the seal of the Corporation, except where required or permitted by law to
be otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of the Corporation. The President shall have such other powers
and perform such other duties as may be prescribed by the Board of Directors or
as may be provided in these By-laws.
SECTION 3.07. VICE PRESIDENTS. The Vice President, or if there shall be
more than one, the Vice Presidents in the order determined by the Board of
Directors, shall, in the absence or disability of the Chairman of the Board and
the President, act with all of the powers and be subject to all the restrictions
of the Chairman of the Board and the President. The Vice Presidents shall also
perform such other duties and have such other powers as the Board of Directors,
the President or these By-laws may from time to time prescribe.
SECTION 3.08. THE SECRETARY AND THE ASSISTANT SECRETARIES. The
Secretary shall attend all meetings of the Board of Directors, all meetings of
the committees thereof, and all meetings of the shareholders and shall record
all the proceedings of such meetings in a book or books to be kept for that
purpose. Under the Chairman of the Board and the President's supervision, the
Secretary shall give, or cause to be given, all notices required to be given by
these By-laws or by law; shall have such powers and perform such duties as the
Board of Directors, the President or these By-laws may from time to time
prescribe; and shall have custody of the corporate seal of the Corporation. The
Secretary, or an Assistant Secretary, shall have authority to affix the
corporate seal to any instrument requiring it and when so affixed, it may be
attested by his or her signature or by the signature of such Assistant
Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by his
or her signature. The Assistant Secretary, or if there be more than one, the
Assistant Secretaries in the order determined by the Board of Directors, shall,
in the absence or disability of the Secretary, perform the duties and exercise
the powers of the Secretary and shall perform such other duties and have such
other powers as the Board of Directors, the President or the Secretary may from
time to time prescribe.
SECTION 3.09. THE TREASURER AND THE ASSISTANT TREASURERS. The
Treasurer shall have the custody of the corporate funds and securities; shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation; shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation as may be ordered by the Board of
Directors; shall cause the funds of the Corporation to be disbursed when such
disbursements have been duly authorized, taking proper vouchers for such
disbursements; and shall render to the Chairman of the Board and the President
and the Board of Directors, at its regular meeting or when the Board of
Directors so requires, an account of the Corporation; shall have such powers and
perform such duties as the Board of Directors, the President or these By-laws
may from time to time prescribe. If required by the Board of Directors, the
Treasurer shall give the Corporation a bond (which shall be rendered every six
years) in such sums and with such surety or sureties as shall be satisfactory to
the Board of Directors for the faithful performance of the duties of the office
of the Treasurer and for the restoration to the Corporation, in case of death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in the possession or under the control
of the Treasurer belonging to the Corporation. The Assistant Treasurer, or if
there shall be more than one, the Assistant Treasurers in the order determined
by the Board of Directors, shall in the absence or disability of the Treasurer,
perform the duties and exercise the powers of the Treasurer. The Assistant
Treasurers shall perform such other duties and have such other powers as the
Board of Directors, the President or the Treasurer may, from time to time,
prescribe.
SECTION 3.10. OTHER OFFICERS, ASSISTANT OFFICERS AND AGENTS. Officers,
assistant officers and agents, if any, other than those whose duties are
provided for in these By-laws, shall have such authority and perform such duties
as may from time to time be prescribed by resolution of the Board of Directors.
<PAGE>
SECTION 3.11. ABSENCE OR DISABILITY OF OFFICERS. In the case of the
absence or disability of any officer of the Corporation and of any person hereby
authorized to act in such officer's place during such officer's absence or
disability, the Board of Directors may by resolution delegate the powers and
duties of such officer to any other officer or to any director, or to any other
person whom it may select.
ARTICLE IV
CERTIFICATES OF STOCK
SECTION 4.01. FORM. Every holder of shares in the Corporation shall be
entitled to have a certificate, signed by, or in the name of the Corporation by
the President or a Vice President and the Secretary or an Assistant Secretary of
the Corporation, certifying the number of shares owned by such holder in the
Corporation. If such a certificate is countersigned (a) by a transfer agent or
an assistant transfer agent other than the Corporation or its employee; or (b)
by a registrar, other than the Corporation or its employee, the signature of the
President, the Vice President, the Secretary or the Assistant Secretary may be
facsimiles. In case any officer or officers who have signed, or whose facsimile
signature or signatures have been used on, any such certificate or certificates
shall cease to be such officer or officers of the Corporation whether because of
death, resignation or otherwise before such certificate or certificates have
been delivered by the Corporation, such certificate or certificates may
nevertheless be issued and delivered as though the person or persons who signed
such certificate or certificates or whose facsimile signature or signatures have
been used thereon had not ceased to be such officer or officers of the
Corporation. All certificates for shares shall be consecutively numbered or
otherwise identified. The name 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 books of the Corporation. Shares of the Corporation shall only be
transferred on the books of the Corporation by the holder of record thereof or
by such holder's attorney duly authorized in writing, upon surrender to the
Corporation of the certificate or certificates for such shares endorsed by the
appropriate person or persons, with such evidence of the authenticity of such
endorsement, transfer, authorization, and other matters as the Corporation may
reasonably require, and accompanied by all necessary stock transfer stamps. In
that event, it shall be the duty of the Corporation to issue a new certificate
to the person entitled thereto, cancel the old certificate or certificates, and
record the transaction on its books. The Board of Directors may appoint a bank
or trust company organized under the laws of the United States or any state
thereof to act as its transfer agent or registrar, or both, in connection with
the transfer of any class or series of securities of the Corporation.
SECTION 4.02. LOST CERTIFICATES. The Board of Directors may direct a
new certificate or certificates to be issued in place of any certificate or
certificates previously issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen, or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen, or destroyed certificate or
certificates, or his or her legal representative, to give the Corporation a bond
sufficient to indemnify the Corporation against any claim that may be made
against the Corporation on account of the loss, theft or destruction of any such
certificate or the issuance of such new certificate.
SECTION 4.03. FIXING A RECORD DATE FOR SHAREHOLDER MEETINGS. In order
that the Corporation may determine the shareholders entitled to notice of or to
vote at any meeting of shareholders or any adjournment thereof, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than sixty (60) nor less than
ten (10) days before the date of such meeting. If no record date is fixed by the
Board of Directors, the record date for determining shareholders entitled to
notice of or to vote at a meeting of shareholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if no
notice is given, on the day on which the meeting is held. A determination of
shareholders of record entitled to notice of or to vote at a meeting of
shareholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
SECTION 4.04. FIXING A RECORD DATE FOR OTHER PURPOSES. In order that
the Corporation may determine the shareholders entitled to receive payment of
any dividend or other distribution or allotment or any rights or the
shareholders entitled to exercise any rights in respect of any change,
conversion or exchange of shares, or for the purposes of any other lawful
action, the record date shall be the date upon which the resolution of the Board
of Directors relating thereto is adopted.
<PAGE>
SECTION 4.05. REGISTERED SHAREHOLDERS. Prior to the surrender to the
Corporation of the certificate or certificates for a share or shares with a
request to record the transfer of such share or shares, the Corporation may
treat the registered owner as the person entitled to receive dividends, to vote,
to receive notifications and otherwise to exercise all the rights and powers of
an owner.
ARTICLE V
GENERAL PROVISIONS
SECTION 5.01. DIVIDENDS. Dividends upon the shares of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the
Corporation, subject to the provisions of the Certificate of Incorporation.
Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the directors from time
to time, in their absolute discretion, deem proper as a reserve or reserves to
meet contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the Corporation, or any other purpose and the directors may
modify or abolish any such reserve in the manner in which it was created.
SECTION 5.02. CHECKS, DRAFTS OR ORDERS. All checks, drafts or other
orders for the payment of money by or to the Corporation and all notes and 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 be determined by resolution of the Board of Directors or a duly
authorized committee thereof.
SECTION 5.03. CONTRACTS. The Board of Directors may authorize any
officer or officers, or any agent or agents, of the Corporation to enter into
any contract or to execute and deliver any instrument in the name of and on
behalf of the Corporation, and such authority may be general or confined to
specific instances.
SECTION 5.04. LOANS. The Corporation may lend money to, or guarantee
any obligation of, or otherwise assist any officer or other employee of the
Corporation or of its subsidiary, including any officer or employee who is a
director of the Corporation or its subsidiary, whenever, in the judgment of the
directors, such loan, guaranty or assistance may reasonably be expected to
benefit the Corporation. The loan, guaranty or other assistance may be with or
without interest, and may be unsecured, or secured in such manner as the Board
of Directors shall approve, including, without limitation, a pledge of shares of
the Corporation. Nothing in this section contained shall be deemed to deny,
limit or restrict the powers of guaranty or warranty of the Corporation at
common law or under any statute.
SECTION 5.05. FISCAL YEAR. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
SECTION 5.06. CORPORATE SEAL. The Board of Directors shall provide a
corporate seal which shall be in the form of a circle and shall have inscribed
thereon the name of the Corporation and the words "Corporate Seal, New York."
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
SECTION 5.07. VOTING SECURITIES OWNED BY THE CORPORATION. Voting
securities in any other corporation held by the Corporation shall be voted by
the President, unless the Board of Directors specifically confers authority to
vote with respect thereto, which authority may be general or confined to
specific instances, upon some other person or officer. Any person authorized to
vote securities shall have the power to appoint proxies, with general power of
substitution.
SECTION 5.08. SECTION HEADINGS. Section headings in these By-laws are
for convenience of reference only and shall not be given any substantive effect
in limiting or otherwise construing any provision herein.
SECTION 5.09. INCONSISTENT PROVISIONS. In the event that any provision
of these By-laws is or becomes inconsistent with any provision of the
Certificate of Incorporation, the Business Corporation Law of the State of New
York or any other applicable law, the provisions of these By-laws shall not be
given any effect to the extent of such inconsistency but shall otherwise be
given full force and effect.
<PAGE>
ARTICLE VII
AMENDMENTS
These By-laws may be amended, altered or repealed and new By-laws
adopted at any meeting of the Board of Directors by a majority vote of the
entire Board of Directors (inclusive of vacancies). The fact that the power to
adopt, amend, alter or repeal the By-laws has been conferred upon the Board of
Directors shall not divest the shareholders of the same powers.
NEWS RELEASE
CONTACT:
Robert L. Montgomery, Jr.
Executive Vice President and Chief Financial Officer
Columbus McKinnon Corporation
716-689-5405
COLUMBUS MCKINNON CORPORATION ANNOUNCES 162% RISE IN FOURTH QUARTER
EARNINGS PER SHARE AND 42% RISE IN FISCAL 1999 EARNINGS PER SHARE
Amherst, New York, May 18, 1999 - Columbus McKinnon Corporation
(Nasdaq:CMCO), today announced record financial results for its 1999 fourth
quarter and fiscal year which ended on March 31, 1999. Net sales for CM's
fiscal fourth quarter were a record $178.5 million, a 17.7% increase from
net sales of $151.6 million in the same quarter of the prior year. Net
income for the fiscal 1999 fourth quarter was $8.7 million, 154.9% above
1998 fourth quarter net income of $3.4 million and 9.6% higher than income
before extraordinary charge of $7.9 million in the 1998 fourth quarter. Net
income per share for the 1999 fourth quarter was $0.62 per diluted share, a
161.7% increase from $0.24 in the fiscal 1998 quarter and 12.5% greater
than income per share before extraordinary charge of $0.55 a year ago.
For fiscal 1999, net sales were a record $735.4 million, 30.9% higher than
$561.8 million in fiscal 1998. Net income for fiscal 1999 rose 41.0% to
$27.4 million. Net income per share for fiscal 1999 was $1.92 per diluted
share, a 42.3% increase from $1.35 for the prior year and 15.5% greater
than income per diluted share before extraordinary charge of $1.66 in
fiscal 1998.
Financial results for the quarter and full year reflect the effect of CM's
merger with GL International on March 1, 1999, which resulted in the
issuance of 897,114 common shares and options to purchase 154,848 CM common
shares to satisfy outstanding GL options. This transaction was accounted
for as a pooling of interests, and resulted in a restatement of all
financial results as though both companies were combined for all periods
presented.
- more -
<PAGE>
Columbus McKinnon Announces Record Earnings, Page Two
On a pro forma basis, assuming all acquisitions and divestitures occurred
at the beginning of the periods presented, CM's net sales decreased 9.1% to
$178.5 million for the 1999 fourth quarter and 0.5% to $732.1 million for
fiscal 1999. Pro forma net income rose 131.2% to $8.7 million for the
quarter and 37.9% to $27.4 million for the year, while pro forma net income
per diluted share increased 137.3% to $0.62 for the quarter and 39.2% to
$1.91 for the year.
Timothy T. Tevens, Columbus McKinnon President and Chief Executive Officer
commented, "We're very pleased with CM's fourth quarter and full year
results, particularly in the context of a more difficult industrial
business environment over the last year for our Products,
Solutions-Industrial, and Solutions-Automotive business segments. Our
quarterly and annual results reflect strong gains which are indicative of
the overall strength and diversity of our business and CM's earnings and
cash generating power."
Tevens continued, "This quarter capped another year of progress in all
three of CM's primary strategic focuses--continuing improvement of our core
business, international expansion, and growth by acquisition. Core
businesses advanced through continuing synergistic integration as strategic
supplier relationships helped our results, operating groups accelerated
efficiencies for like businesses, and business systems implementations
expanded administrative integration. The additions of Raccords Gautier in
France and Tigrip/Camlok in England and Germany expanded us
internationally; LICO in Kansas City helped create a new material handling
Solutions-Automotive segment, and Abell-Howe, GL International, and
Washington Equipment Company (completed in April 1999) formed an excellent
foundation for CM's new CraneMart strategy."
Tevens concluded, "Columbus McKinnon enters fiscal year 2000 in a position
of considerable strength with a solid and broad product line, leadership in
key markets, a growing international presence, high market share, and a
track record of successful growth. Five-year compound annual growth rates
of 39% for net sales, 49% for EBITDA, 31% for net income, and 59% for cash
flow from operating activities demonstrate our long-term effectiveness at
profitably building CM into an industry leader. This year is off to a
strong start and we look forward to continue building CM as a leading
global provider of material handling products and solutions."
--more--
<PAGE>
Columbus McKinnon Announces Record Earnings, Page Three
In discussing the continued strength of the Company's cash flow, Robert L.
Montgomery, Jr., Executive Vice President and Chief Financial Officer, said
that cash flow from operating activities was strong at $4.02 per diluted
share for the year, up from $2.66 per diluted share last year. He also
noted that the Company repaid $36 million of funded debt during the year.
Columbus McKinnon's Board of Directors also declared a regular quarterly
dividend of $.07 per common share, payable on July 1, 1999 to shareholders
of record on June 17, 1999.
Columbus McKinnon Corporation is a broad-line designer, manufacturer and
supplier of sophisticated material handling products and integrated
material handling systems that are widely distributed to industrial and
consumer markets worldwide. Those items that reflect the highest sales of
Columbus McKinnon's Products segment are hoists, steel welded chain and
attachments, and industrial components. Integrated material handling
solutions are systems that are designed to meet specific applications of
end users to increase productivity through material handling. Comprehensive
information on Columbus McKinnon is available on its Web site at
http://www.cmworks.com/
This press release contains "forward looking statements" within the meaning
of the Private Securities Litigation Reform Act of 1995. Such statements
include, but are not limited to, statements concerning future revenue and
earnings, involve known and unknown risks, uncertainties and other factors
that could cause the actual results of the Company to differ materially
from the results expressed or implied by such statements, including general
economic and business conditions, conditions affecting the industries
served by the Company and its subsidiaries, conditions affecting the
Company's customers and suppliers, competitor responses to the Company's
products and services, the overall market acceptance of such products and
services and other factors disclosed in the Company's periodic reports
filed with the Securities and Exchange Commission.
--more--
<PAGE>
Page Four
<TABLE>
<CAPTION>
Columbus McKinnon Corporation
Consolidated Financial Information
THREE MONTHS ENDED **
-----------------------
3/31/99 3/31/98
-------------------- --------------------------------
ACTUAL AND PRO FORMA ACTUAL PRO FORMA *
-------------------- ------ -----------
(IN THOUSANDS, EXCEPT PER SHARE AND PERCENTAGE DATA)
<S> <C> <C> <C>
Net sales ................................................... $ 178,477 $ 151,576 $ 196,389
Cost of products sold ....................................... 127,758 107,337 145,197
--------- --------- ---------
Gross profit ................................................ 50,719 44,239 51,192
Gross profit margin ......................................... 28.4% 29.2% 26.1%
Selling, general and
administrative expense .................................. 24,685 20,785 23,316
--------- --------- ---------
Income from operations before
amortization ............................................ 26,034 23,454 27,876
Amortization ................................................ 4,155 2,623 3,714
--------- --------- ---------
Income from operations ...................................... 21,879 20,831 24,162
Interest and other expense, net ............................. 7,721 5,662 8,401
--------- --------- ---------
Income before income taxes .................................. 14,158 15,169 15,761
Income tax expense .......................................... 5,465 7,239 7,481
--------- --------- ---------
Income before extraordinary
charge .................................................. 8,693 7,930 8,280
Extraordinary debt
extinguishment charge ................................... -- (4,520) (4,520)
--------- --------- ---------
Net income .................................................. $ 8,693 $ 3,410 $ 3,760
========= ========= =========
Average basic shares outstanding ............................ 13,925 14,294 14,294
Basic income per share
Before extraordinary charge ............................. $ 0.62 $ 0.55 $ 0.58
Net ..................................................... $ 0.62 $ 0.24 $ 0.26
========= ========= =========
Average diluted shares outstanding .......................... 14,075 14,447 14,447
Diluted income per share
Before extraordinary charge ............................. $ 0.62 $ 0.55 $ 0.57
Net ..................................................... $ 0.62 $ 0.24 $ 0.26
========= ========= =========
*Pro Forma assumes that the Abell-Howe, LICO, Univeyor A/S, and Camlok acquisitions and Mechanical Products divestiture
occurred as of April 1, 1997 for comparative purposes instead of actual acquisition dates of August 21, 1998, March 31, 1998,
January 7, 1998, and January 29, 1999 respectively, and divestiture date of August 10, 1998.
** All amounts have been restated to reflect the GL International, Inc. pooling of interests.
</TABLE>
- more -
<PAGE>
Page Five
<TABLE>
<CAPTION>
Columbus McKinnon Corporation
Consolidated Financial Information
FISCAL YEAR ENDED **
-----------------------
3/31/99 3/31/98
------- -------
ACTUAL PRO FORMA* ACTUAL PRO FORMA *
--------------------------- ---------------------------
(IN THOUSANDS, EXCEPT PER SHARE AND PERCENTAGE DATA)
<S> <C> <C> <C> <C>
Net sales ................................. $ 735,445 $ 732,143 $ 561,823 $ 735,525
Cost of products sold ..................... 542,975 540,807 401,669 546,568
--------- --------- --------- -----------
Gross profit .............................. 192,470 191 336 160,154 188,957
Gross profit margin ....................... 26.2% 26.1% 28.5% 25.7%
Selling, general and
administrative expense ................ 91,909 91,225 79,939 91,958
--------- --------- --------- -----------
Income from operations before
amortization .......................... 100,561 100,111 80,215 96,999
Amortization .............................. 15,479 15,409 10,297 15,036
--------- --------- --------- -----------
Income from operations .................... 85,082 84,702 69,918 81,963
Interest and other expense, net ........... 34,358 34,128 23,164 33,936
--------- --------- --------- -----------
Income before income taxes ................ 50,724 50,574 46,754 48,027
Income tax expense ........................ 23,288 23,219 22,776 23,673
--------- --------- --------- -----------
Income before extraordinary
charge ................................ 27,436 27,355 23,978 24,354
Extraordinary debt
extinguishment charge ................. -- -- (4,520) (4,520)
--------- --------- --------- -----------
Net income ................................ $ 27,436 $ 27,355 $ 19,458 $ 19,834
========= ========= ========= ===========
Average basic shares outstanding .......... 14,137 14,137 14,221 14,221
Basic income per share
Before extraordinary charge ........... $ 1.94 $ 1.93 $ 1.69 $ 1.71
Net ................................... $ 1.94 $ 1.93 $ 1.37 $ 1.39
========= ========= ========= ===========
Average diluted shares outstanding ........ 14,294 14,294 14,427 14,427
Diluted income per share
Before extraordinary charge ........... $ 1.92 $ 1.91 $ 1.66 $ 1.69
Net ................................. $ 1.92 $ 1.91 $ 1.35 $ 1.37
========= ========= ========= ===========
*Pro Forma assumes that the Abell-Howe, LICO, Univeyor A/S, and Camlok acquisitions and Mechanical Products divestiture
occurred as of April 1, 1997 for comparative purposes instead of actual acquisition dates of August 21, 1998, March 31, 1998,
January 7, 1998, and January 29, 1999 respectively, and divestiture date of August 10, 1998.
** All amounts have been restated to reflect the GL International, Inc. pooling of interests.
</TABLE>
- more -
<PAGE>
Page Six
<TABLE>
<CAPTION>
COLUMBUS McKINNON CORPORATION
CONSOLIDATED BALANCE SHEET *
(In Thousands)
MARCH 31,
1999 1998
------ ------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents ...................... $ 6,867 $ 22,861
Trade accounts receivable ...................... 136,988 124,637
Unbilled revenues .............................. 9,821 19,634
Inventories .................................... 115,979 115,126
Net assets held for sale ....................... 8,214 10,396
Prepaid expenses ............................... 8,647 10,407
-------- --------
Total current assets .................. 286,516 303,061
Net property, plant, and equipment ...................... 90,004 87,662
Goodwill and other intangibles, net ..................... 357,727 368,946
Marketable securities ................................... 19,355 16,665
Deferred taxes on income ................................ 6,886 7,534
Other assets ............................................ 8,169 5,483
-------- --------
Total assets .......................... $768,657 $789,351
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY Current liabilities:
Notes payable to banks ......................... $ 4,590 $ 5,184
Trade accounts payable ......................... 54,651 58,639
Excess billings ................................ 5,058 4,653
Accrued liabilities ............................ 54,008 44,405
Current portion of long-term debt .............. 1,926 2,180
-------- --------
Total current liabilities ............. 120,233 115,061
Senior debt, less current portion ....................... 222,165 256,929
Subordinated debt ....................................... 199,521 199,468
Other non-current liabilities ........................... 38,064 46,947
-------- --------
Total liabilities ..................... 579,983 618,405
-------- --------
Shareholders' equity:
Common stock ................................... 176 176
Additional paid-in capital ..................... 102,283 100,395
Retained earnings .............................. 100,455 76,744
ESOP debt guarantee ............................ (9,865) (3,203)
Other .......................................... (4,375) (3,166)
-------- --------
Total shareholders' equity ............ 188,674 170,946
-------- --------
Total liabilities and shareholders'
equity ............................ $768,657 $789,351
======== ========
* All amounts have been restated to reflect the GL International, Inc. pooling
of interests.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
COLUMBUS McKINNON CORPORATION
BUSINESS SEGMENTS - ACTUAL *
SOLUTIONS- SOLUTIONS- ELIMINATIONS/
PRODUCTS INDUSTRIAL AUTOMOTIVE OTHER ** CONSOLIDATED
<S> <C> <C> <C> <C> <C>
Quarter ended 3/31/99
Net sales ...................................... $137,659 $16,039 $ 29,651 $ (4,872) $ 178,477
Income from operations
before amortization.......................... 25,164 1,664 451 (1,245) 26,034
Quarter ended 3/31/98
Net sales ...................................... 139,046 12,905 -- (375) 151,576
Income from operations
before amortization .............................. 23,605 339 -- (490) 23,454
Fiscal year ended 3/31/99
Net sales ...................................... 528,974 58,301 161,443 (13,273) 735,445
Income from operations
before amortization ......................... 81,165 5,592 14,925 (1,121) 100,561
Fiscal year ended 3/31/98
Net sales ...................................... 524,949 39,845 -- (2,971) 561,823
Income from operations
before amortization ......................... 76,188 3,992 -- 35 80,215
* All amounts have been restated to reflect the GL International, Inc. pooling of interests.
**Includes intercompany eliminations and Mechanical Products divestiture in August, 1998.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
COLUMBUS McKINNON CORPORATION
BUSINESS SEGMENTS - PRO FORMA **
SOLUTIONS- SOLUTIONS- ELIMINATIONS/
PRODUCTS INDUSTRIAL AUTOMOTIVE OTHER * CONSOLIDATED
<S> <C> <C> <C> <C> <C>
Quarter ended 3/31/99
Net sales .......................... $137,659 $16,039 $ 29,651 $ (4,872) $ 178,477
Income from operations
before amortization ............. 25,164 1,664 451 (1,245) 26,034
Quarter ended 3/31/98
Net sales .......................... 140,925 12,905 47,924 (5,365) 196,389
Income from operations
before amortization ............. 23,978 339 4,910 (1,351) 27,876
Fiscal year ended 3/31/99
Net sales .......................... 533,254 58,301 161,443 (20,855) 732,143
Income from operations
before amortization ............. 81,718 5,592 14,925 (2,124) 100,111
Fiscal year ended 3/31/98
Net sales .......................... 534,432 56,510 165,873 (21,290) 735,525
Income from operations
before amortization ............. 77,912 4,973 16,642 (2,528) 96,999
*Includes intercompany eliminations and Mechanical Products divestiture in August, 1998.
** Pro Forma assumes that the Abell-Howe, LICO, Univeyor A/S, and Camlok acquisitions and Mechanical Products divestiture
occurred as of April 1, 1997 for comparative purposes instead of actual acquisition dates of August 21, 1998, March 31, 1998,
January 7, 1998, and January 29, 1999 respectively, and divestiture date of August 10, 1998. All amounts have been restated
to reflect the GL International, Inc. pooling of interests.
</TABLE>
