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
October 2, 1998 (September 30, 1998)
Date of report (Date of earliest event reported)
OMNIQUIP INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-21461 43-1721419
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
222 East Main Street
Port Washington, Wisconsin 53074
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (414) 268-8965
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Item 5. Other Events
On October 2, 1998, OmniQuip International, Inc. (the "Company") entered
into Amendment No. 1 to the Rights Agreement (the "Rights Agreement") dated as
of August 21, 1998 between the Company and First Chicago Trust Company of New
York, as Rights Agent to (i) revise the definition of "Acquiring Person" (as
described below), (ii) delete the reference to "Continuing Director," as used
throughout the Rights Agreement, (iii) revise the definitions of "Distribution
Date" and "Section 13 Event" and (iv) add a provision restricting the redemption
of Rights or the amendment of the Rights Agreement for a period of 180 days
following the occurrence of certain events. Capitalized terms used, but not
defined herein, have the meanings ascribed thereto in the Rights Agreement, as
amended.
The term "Acquiring Person" has been amended to decrease the beneficial
ownership threshold set forth in that definition from "twenty percent (20%)" to
"ten percent (10%)." In addition, the references in Sections 3(a) and
11(a)(ii)(B) of the Rights Agreement to "twenty percent (20%)" have been changed
to "ten percent (10%)."
The term "Distribution Date" has been revised to include, in addition to
the events specified, the date following the execution of an agreement relating
to or providing for a transaction constituting a Section 13 Event. Section 13 of
the Rights Agreement has also been revised, principally to revise the definition
of Section 13 Event to include certain transactions occurring following a Stock
Acquisition Date or during the pendency of a 180 Day Period, as defined.
The Rights Agreement has also been amended to provide that, in the event
that a majority of the Board of Directors is elected by stockholder action by
written consent, or is comprised of persons elected at a meeting of stockholders
who were not nominated by the Board of Directors in office immediately prior to
such meeting, then for a period of 180 days following the effectiveness of such
election, the Rights may not be redeemed nor may any amendment be made to the
Rights Agreement except an amendment intended to cure any ambiguity or correct
or supplement any provision contained in the Rights Agreement which may be
defective or inconsistent with any other provision thereof.
The foregoing description of Amendment No. 1 to the Rights Agreement does
not purport to be complete and is qualified in its entirety by reference to the
text thereof which is filed as an exhibit hereto and incorporated herein by
reference thereto. For a more complete description of the Rights Agreement prior
to the amendments described herein, reference is hereby made to the Form 8-K of
the Company dated as of August 21, 1998, which is incorporated herein by
reference thereto.
On September 30, 1998, the Board of Directors of the Company also adopted
certain amendments to the By-Laws relating, among other things, to meetings of
stockholders and consents in lieu of meetings. Reference is hereby made to the
Amended By-Laws of the Company filed as an exhibit hereto for the text of such
provisions, which provisions are hereby incorporated herein by reference
thereto.
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits
(i) Amended By-Laws of the Company.
(ii) Amendment No. 1 to Rights Agreement, dated as of
October 2, 1998, by and between OmniQuip
International, Inc. and First Chicago Trust Company of
New York, as Rights Agent.
(iii) Press Release of the Company dated October 2, 1998.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
OMNIQUIP INTERNATIONAL, INC.
Dated: October 2, 1998 By: /s/ P. Enoch Stiff
------------------
P. Enoch Stiff
President and Chief Executive Officer
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INDEX TO EXHIBITS
Exhibit
No. Description
- -------------- ------------------------------------------------------------
3.2 Amended By-Laws of the Company.
4 Amendment No. 1 to Rights Agreement, dated as of October 2,
1998, by and between OmniQuip International, Inc. and First
Chicago Trust Company of New York, as Rights Agent.
99 Press Release of the Company dated October 2, 1998.
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OMNIQUIP INTERNATIONAL, INC.
AMENDED BY-LAWS
Article I
OFFICES
Section 1. The registered office shall be in the City of Wilmington, County
of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places both
within and without the State of Delaware as the board of directors may from time
to time determine or the business of the corporation may require.
Article II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of directors
shall be held in the City of Milwaukee, State of Wisconsin, at such place as may
be fixed from time to time by the board of directors or at such other places
either within or without the State of Delaware as shall be designated from time
to time by the board of directors and stated in the notice of the meeting.
Section 2. Annual meetings of stockholders, commencing with the year 1997,
shall be held on the third Tuesday in February if not a legal holiday, and if a
legal holiday, then on the next secular day following, at 10:00 A.M., or at such
other date and time as shall be designated from time to time by the board of
directors and stated in the notice of the meeting, at which they shall elect by
a plurality vote a board of directors, and transact such other business as may
properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date and
hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten nor more than sixty days before the date of the
meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any
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purpose germane to the meeting, during ordinary business hours, for a period of
at least ten days prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the chairman of the board or the president and
shall be called by the chairman of the board or the president or secretary at
the request in writing of a majority of the board of directors. Such request
shall state the purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called,
shall be given not less than ten nor more than sixty days before the date of the
meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders shall
be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such 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. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the holders
of a majority of the stock having voting power present in person or represented
by proxy shall decide any question brought before such meeting, unless the
question is one upon which by express provision of the statutes or of the
certificate of incorporation, a different vote is required, in which case such
express provision shall govern and control the decision of such question.
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Section 10. Unless otherwise provided in the certificate of incorporation
each stockholder shall at every meeting of the stockholders be entitled to one
vote in person or by proxy for each share of the capital stock having voting
power held by such stockholder, but no proxy shall be voted on after three years
from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of incorporation,
any action required to be taken at any annual or special meeting of stockholders
of the corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
Section 12. (a) At any annual meeting of the corporation's stockholders,
only such business shall be conducted as shall have been properly brought before
the meeting. To be properly brought before an annual meeting, business must be
(i) specified in the notice of meeting (or any supplement thereto) given by or
at the direction of the board of directors, (ii) otherwise properly brought
before the meeting by or at the direction of the board of directors, or (iii)
otherwise properly brought before the meeting by a stockholder of record
entitled to vote at such meeting who has complied with the provisions of this
Section 12. Business may be properly brought before an annual meeting by a
stockholder only if written notice of the stockholder's intent to propose such
business has been delivered to the secretary of the corporation not less than 90
nor more than 120 calendar days in advance of the anniversary date of the
preceding year's annual meeting of stockholders, except that if no annual
meeting was held in the previous year or the date of the annual meeting has been
changed by more than 30 calendar days from the anniversary of the preceding
year's annual meeting date, written notice of a stockholder proposal shall be
delivered to the secretary of the corporation not later than the close of
business on the 10th day following the first public announcement of the date of
such annual meeting. Delivery shall be by hand or by certified or registered
mail, return receipt requested. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the giving of
stockholder's notice as described above.
(b) Each notice of new business must set forth: (i) the name and address of
the stockholder who intends to raise the new business; (ii) the business desired
to be brought forth at the meeting and the reasons for conducting such business
at the meeting; (iii) a representation that the stockholder is a holder of
record of stock of the corporation entitled to vote with respect to such
business and intends to appear in person or by proxy at the meeting to move the
consideration of such business; (iv) such stockholder's total beneficial
ownership of the corporation's voting stock; and (v) such stockholder's interest
in such
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business. The chairman of the meeting may refuse to acknowledge a motion to
consider any business that he determines was not made in compliance with the
foregoing procedures.
(c) For purposes of these by-laws, "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 Securities Exchange Act of 1934, as amended.
Section 13. (a) Nominations for the election of directors may be made by
the board of directors or a committee appointed by the board of directors or by
any stockholder entitled to vote in the election of directors generally.
However, any stockholder entitled to vote in the election of directors may
nominate one or more persons for election as director(s) at a meeting only if
written notice of such stockholder's intent to make such nomination or
nominations has been delivered to the secretary of the corporation not later
than (i) with respect to an election to be held at an annual meeting of
stockholders, not less than 90 nor more than 120 days in advance of the
anniversary date of the preceding year's annual meeting of stockholders, except
that if no annual meeting was held in the previous year or the date of the
annual meeting has been changed by more than 30 calendar days from the
anniversary of the preceding year's annual meeting date, written notice of a
nominee proposal shall be delivered to the secretary of the corporation not
later than the close of business on the 10th day following the first public
announcement of the date of such annual meeting, and (ii) with respect to an
election to be held at a special meeting of stockholders for the election of
directors, the close of business on the 10th day following the first public
announcement of the date of such meeting. Delivery shall be by hand or by
certified or registered mail, return receipt requested. In no event shall the
public announcement of an adjournment of any annual or special meeting commence
a new time period for the giving of a stockholder's notice as described above.
(b) Each such notice shall set forth: (i) the name and address of the
stockholder who intends to make the nomination and of the person or persons to
be nominated; (ii) such stockholder's total beneficial ownership of the
corporation's voting stock; (iii) a representation that the stockholder is a
holder of record of stock of the corporation entitled to vote at such meeting
and intends to appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice; (iv) a description of all agreements,
arrangements or understandings between the stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder; (v) such other
information regarding each nominee proposed by such stockholder as would be
required to be included in a proxy statement filed pursuant to the proxy rules
of the Securities and Exchange Commission had the nominee been nominated, or
intended to be nominated, by the board of directors; and (vi) the written
consent of each nominee to serve as a director of the Corporation if so elected.
The chairman of the meeting may refuse to acknowledge any nomination for the
election of a director that he determines was not made in compliance with the
foregoing procedures.
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Article III
DIRECTORS
Section 1. The number of directors of the corporation shall be not less
than three (3) nor more than eleven (11), the exact number of directors to be
determined from time to time by resolution adopted by a majority of the entire
board. The directors shall be elected at the annual meeting of the stockholders,
except as provided in Section 2 of this Section, and each director elected shall
hold office until his successor is elected and qualified. Directors need not be
stockholders. Any director may resign at any time upon written notice to the
corporation.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and each of the directors so chosen shall hold office until the next
annual election for the term for which he is elected and until his successor is
duly elected and qualified or until his earlier resignation or removal. No
decrease in the board shall shorten the term of any incumbent director. If, at
the time of filling any vacancy or any newly created directorship, the directors
then in office shall constitute less than a majority of the whole board (as
constituted immediately prior to any such increase), the Court of Chancery may,
upon application of any stockholder or stockholders holding at least ten percent
of the total number of the shares at the time outstanding having the right to
vote for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under the
direction of its board of directors which may exercise all such powers of the
corporation and do all such lawful acts and things as are not by statute or by
the certificate of incorporation or by these by-laws directed or required to be
exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors shall
be held immediately following the annual meeting of the stockholders, unless
otherwise determined by the board of directors or the stockholders at the annual
meeting and no notice of such meeting shall be necessary to the newly elected
directors in order legally to constitute the meeting, provided a quorum shall be
present. In the event of the failure of the stockholders to fix the time or
place of such first meeting of the newly elected board of directors, or in the
event such meeting is not held at the time and place so fixed by the
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stockholders, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
board of directors, or as shall be specified in a written waiver signed by all
of the directors.
Section 6. Regular meetings of the board of directors may be held without
notice at such time and at such place as shall from time to time be determined
by the board.
Section 7. Special meetings of the board may be called by the chairman of
the board or the president, and the chairman of the board or the president or
the secretary shall call a special meeting upon the written request of two
directors unless the board consists of only one director; in which case special
meetings shall be called by the chairman of the board or the president or
secretary on the written request of the sole director. If given personally, by
telephone or by telegram, the notice shall be given at least two days prior to
the meeting. Notice may be given by mail if it is mailed at least three days
before the meeting.
Section 8. At all meetings of the board a majority of the directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the board of directors, except as may be otherwise specifically provided by
statute or by 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 9. Unless otherwise restricted by the certificate of incorporation
or these by-laws, any action required or permitted to be taken at any meeting of
the board of directors or of any committee thereof may be taken without a
meeting, if all members of the board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of incorporation
or these by-laws, members of the board of directors, or any committee designated
by the board of directors, may participate in a meeting of the board of
directors, or any committee, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a majority
of the whole board, designate one or more committees, each committee to consist
of one or more of the directors of the corporation. The board may designate one
or more directors
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as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in the place of any such
absent or disqualified member.
Any such committee, to the extent provided in the resolution of the board
of directors, shall have and may exercise all the powers and authority of the
board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Such committee or committees shall have such
name or names as may be determined from time to time by resolution adopted by
the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of incorporation
or these by-laws, the board of directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the board of directors and may be paid a fixed sum
for attendance at each meeting of the board of directors and/or a stated salary
as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
Article IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it
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appears on the records of the corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors may also be given by
telegram.
Section 2. Whenever any notice is required to be given under the provisions
of the statutes or of the certificate of incorporation or of these by-laws, a
waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
Article V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board of
directors as soon as practicable after each annual meeting of stockholders and
shall be a president, a secretary and a treasurer. Any number of offices may be
held by the same person, unless the certificate of incorporation or these
by-laws otherwise provide.
Section 2. The board of directors may appoint such other officers and
agents as it shall deem necessary, including a chairman of the board, a vice
chairman of the board, one or more vice presidents and one or more assistant
secretaries and assistant treasurers, who shall hold their offices for such
terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the board.
Section 3. The salaries of all officers and agents of the corporation shall
be fixed by or under the direction of the board of directors.
Section 4. The officers of the corporation shall hold office at the
pleasure of the board of directors. Each officer shall hold his office until his
successor is elected and qualified or until his earlier resignation or removal.
Any officer may resign at any time upon written notice to the corporation. Any
officer elected or appointed by the board of directors may be removed at any
time by the affirmative vote of a majority of the board of directors. Any
vacancy occurring in any office of the corporation by death, resignation,
removal or otherwise shall be filled by the board of directors.
THE CHAIRMAN OF THE BOARD
Section 5. The chairman of the board shall be a member of the board and
shall preside at its meetings and at all meetings of stockholders. The chairman
of the board shall exercise such other powers and perform such other duties as
may from time to time be assigned to him by the board or prescribed by the
by-laws.
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THE PRESIDENT
Section 6. The president shall, subject to the direction and under the
supervision of the board, be the principal executive officer of the corporation
and shall have general charge of the business and affairs of the corporation and
shall keep the board fully advised. At the direction of the board, he shall have
power in the name of the corporation and on its behalf to execute any
instruments in writing. He shall employ and discharge employees and agents of
the corporation, except such as shall hold their offices by appointment of the
board, but he may delegate these powers to other officers as to employees under
their immediate supervision. He shall have such powers and perform such duties
as generally pertain to the office of president, as well as such further powers
and duties as may be prescribed by the board.
THE VICE-PRESIDENTS
Section 7. In the absence of the president or in the event of his inability
or refusal to act, the vice-president (or in the event there be more than one
vice-president, the vice-presidents in the order designated by the directors, or
in the absence of any designation, then in the order of their election) shall
perform the duties of the president, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the president. The
vice-presidents shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 8. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his 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
signature.
Section 9. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
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 may from
time to time prescribe.
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THE TREASURER AND ASSISTANT TREASURER
Section 10. The treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 11. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 12. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 13. The assistant treasurer, or if there be more than one, the
assistant treasurer in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the treasurer or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the treasurer and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
Article VI
CERTIFICATE OF STOCK
Section 1. Every holder of stock in the corporation shall be entitled to
have a certificate, signed by, or in the name of the corporation by, the
chairman or vice-chairman of the board of directors, or the president or a
vice-president and the treasurer, or the secretary or an assistant secretary of
the corporation, certifying the number of shares owned by him in the
corporation.
Section 2. Any of or all the signatures on the certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar
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before such certificate is issued, it may be issued by the corporation with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore 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 issuance thereof, require the owner
of such lost, stolen or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require and/or
to give the corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
FIXING RECORD DATE
Section 5. (a) In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful purpose, except to express consent to corporate action in writing
without a meeting, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders 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.
(b) In order that the corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, 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 date shall not be more than ten days after the date upon
which the resolution fixing the record date is adopted by the board of
directors. Any stockholder of record seeking to have the stockholders authorize
11
<PAGE>
or take corporate action by written consent shall, by written notice to the
secretary, request the board of directors to fix a record date. The board of
directors shall promptly, but in all events within ten days after the date on
which such a request is received, adopt a resolution fixing the record date. If
no record date has been fixed by the board of directors within ten days of the
date on which such a request is received, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the board of directors is required by
applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or any officer or agent of the corporation having
custody of the book in which proceedings of stockholders meetings are recorded,
to the attention of the secretary of the corporation. Delivery shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the board of directors and prior action by the board of
directors is required by applicable law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the date on which the board of
directors adopts the resolution taking such prior action.
(c) In the event of the delivery to the corporation of a written consent or
consents purporting to authorize or take corporate action and/or related
revocations (each such written consent or related revocation is referred to in
this section as a "Consent"), the secretary of the corporation shall provide for
safekeeping of such Consent and shall immediately appoint duly qualified and
independent inspectors to (i) conduct promptly such reasonable ministerial
review as such inspectors deem necessary or appropriate for the purpose of
ascertaining the sufficiency and validity of such Consent and all matters
incident thereto, including, without limitation, whether holders of shares
having the requisite voting power to authorize or take the action specified in
the Consent have given consent and (ii) deliver to the secretary a written
report regarding the foregoing. If after such investigation and report the
secretary shall determine that the Consent is valid, that fact shall be
certified on the records of the corporation kept for the purpose of recording
the proceedings of meetings of stockholders, and the Consent shall be filed in
such records, at which time the Consent shall become effective as stockholder
action.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
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<PAGE>
Article VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock 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 capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. 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, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purposes as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
EXECUTION OF DOCUMENTS
Section 3. Unless otherwise authorized by the board of directors, all
contracts, leases, deeds, deeds of trust, mortgages, powers of attorney to
transfer stock and for other purposes, and all other documents requiring the
seal of the corporation shall be executed for and on behalf of the corporation
by the president or any vice president and the corporate seal shall be affixed
and attested by the secretary or an assistant secretary, or the treasurer or an
assistant treasurer.
ANNUAL STATEMENT
Section 4. The board of directors shall present at each annual meeting, and
at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
FISCAL YEAR
Section 5 The fiscal year of the corporation shall be the one year period
ending on September 30 of each calendar year or as may otherwise be fixed by
resolution of the board of directors.
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<PAGE>
SEAL
Section 6 The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Article VIII
INDEMNIFICATION
Section 1. Each person who was or is made a party or is threatened to be
made a party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans
(hereinafter an "indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, employee or agent or in
any other capacity while serving as a director,officer, employee or agent, shall
be indemnified and held harmless by the corporation to the fullest extent
permitted by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the corporation to provide broader indemnification
rights than said law permitted the corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such indemnitee in connection
therewith. Such indemnification shall continue as to an indemnitee who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of his or her heirs, executors and administrators; provided, however,
that, except as provided in subparagraph (b) hereof, the corporation shall
indemnify any such indemnitee seeking indemnification in connection with a
proceeding (or part thereof) initiated by such indemnitee only if such
proceeding (or part thereof) was authorized by the board of directors of the
corporation. The right to indemnification conferred in this Article VIII shall
be a contract right and shall include the right to be paid by the corporation
the expenses incurred in defending any such proceeding in advance of its final
disposition (an "expense advancement"); provided, however, that, if the Delaware
General Corporation Law so requires, the payment of such expenses incurred by an
indemnitee in his or her capacity as a director or officer of the corporation
(and not in any other capacity in which service was or is rendered by such
indemnitee while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made upon delivery to the corporation of an undertaking, by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right
14
<PAGE>
to appeal that such indemnitee is not entitled to be indemnified under this
Article VIII or otherwise; and provided, further, that no expense advancement
shall be paid by the corporation if independent legal counsel shall advise the
board of directors in a written opinion that based upon the facts known to such
counsel at the time, (i) the indemnitee acted in bad faith or deliberately
breached his or her duty to the corporation or its stockholders, and (ii) as a
result of such conduct by the indemnitee, it is more likely than not that it
will ultimately be determined that such indemnitee has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law for
the corporation to indemnify such indemnitee. The corporation may, by action of
its board of directors, provide indemnification to employees and agents of the
corporation with the same scope and effect as the foregoing indemnification of
directors and officers.
(b) If a claim under subparagraph (a) of this Article VIII is not paid in
full by the corporation within 30 days after a written claim has been received
by the corporation, the indemnitee may at any time thereafter bring suit against
the corporation to recover the unpaid amount of the claim. If successful in
whole or in part in any such suit, or in a suit brought by the corporation to
recover an expense advancement, the indemnitee shall also be entitled to be paid
the expense of prosecuting or defending such suit. It shall be a defense to any
such action that the indemnitee has not met the standards of conduct which make
it permissible under the Delaware General Corporation Law for the corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the corporation. Neither the failure of the corporation
(including its board of directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the indemnitee is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the corporation
(including its board of directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
indemnitee has not met the applicable standard of conduct; provided, however,
that a determination by the board of directors denying an expense advancement
based upon the written opinion of independent legal counsel as provided for in
subparagraph (a) above shall be a complete defense to any action seeking an
expense advancement, but such determination shall not be a defense or create a
presumption that the indemnitee is not entitled to be indemnified hereunder upon
the final disposition of the proceeding.
(c) The right to indemnification and the payment of expense incurred in
defending a proceeding in advance of its final disposition conferred in this
Article VIII shall not be exclusive of any other right which any person may have
or hereafter acquire under any statute, provision of the Restated Certificate of
Incorporation, by-law, agreement, vote of stockholders or disinterested
directors or otherwise.
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<PAGE>
(d) The corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss under the Delaware General
Corporation Law.
Article IX
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new by-laws
may be adopted by the stockholders or by the board of directors, when such power
is conferred upon the board of directors by the certificate or incorporation, at
any regular meeting of the stockholders or of the board of directors or at any
special meeting of the stockholders or of the board of directors if notice of
such alteration, amendment, repeal or adoption of new by-laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal
by-laws is conferred upon the board of directors by the certificate of
incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal by-laws.
16
FIRST AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT, dated as of October 2, 1998 (this "Amendment"), to
the Rights Agreement, dated as of August 21, 1998 (the "Rights Agreement"), by
and between OmniQuip International, Inc., a Delaware corporation (the
"Company"), and The First Chicago Trust Company of New York (the "Rights
Agent").
WHEREAS, pursuant to and in compliance with Section 27 of the
Rights Agreement, the Company and the Rights Agent desire to amend the Rights
Agreement as set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements set forth herein and in the Rights Agreement, the parties
hereto agree as follows:
1. The first sentence of the definition of "Acquiring Person"
contained in Section 1(a) of the Rights Agreement is hereby amended by replacing
the words "twenty percent (20%)" with the words "ten percent (10%)".
2. The second sentence of the definition of "Acquiring Person"
contained in Section 1(a) of the Rights Agreement is hereby amended by deleting
the words ",including a majority of the Continuing Directors,".
3. Section 1(m) of the Rights Agreement is hereby amended by
deleting the definition of "Continuing Director" and replacing such definition
with the words "Intentionally Omitted".
4. The first sentence of Section 3(a) of the Rights Agreement
is hereby amended to read in its entirety as follows:
"(a) Until the earliest of (i) the Close of Business on the
tenth day after the Stock Acquisition Date (or, if the tenth day after
the Stock Acquisition Date occurs before the Record Date, the Close of
Business on the Record Date), (ii) the Close of Business on the tenth
Business Day (or such later date as the Board shall determine) after
the date that a tender or exchange offer by any Person (other than the
Company, any Subsidiary of the Company, any employee benefit plan of
the Company or of any Subsidiary of the Company, or any Person or
entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan) is first published or sent or
given within the meaning of Rule 14d-2(a) of the General Rules and
<PAGE>
Regulations under the Exchange Act, if upon consummation thereof, such
Person would be the Beneficial Owner of ten percent (10%) or more of
the shares of Common Stock then outstanding or (iii) the date following
the execution of an agreement relating to or providing for a
transaction constituting a Section 13 Event (the earliest of (i), (ii)
and (iii) being herein referred to as the "Distribution Date"), (A) the
Rights will be evidenced (subject to the provisions of paragraph (b) of
this Section 3) by the certificates for the Common Stock registered in
the names of the holders of the Common Stock (which certificates for
Common Stock shall be deemed also to be certificates for Rights) and
not by separate certificates and (B) the Rights will be transferable
only in connection with the transfer of the underlying shares of Common
Stock (including a transfer to the Company)."
5. The first sentence of the legend contained in Section 3(c)
of the Rights Agreement is hereby amended by inserting after the words "AUGUST
21, 1998" the words "AND AMENDED AS OF OCTOBER 2, 1998".
6. Section 11(a)(ii)(B) of the Rights Agreement is hereby
amended by replacing the words "twenty percent (20%)" with the words "ten
percent (10%)" in each instance where such words appear.
7. The first sentence of Section 13(a) of the Rights Agreement
is hereby amended so that the beginning portion of such sentence through the end
of clause (y) thereof shall read in its entirety as follows (it being understood
that the remainder of such sentence following clause (y) shall remain in full
force and effect):
"(a) In the event that, following the Stock Acquisition Date
or during the pendency of a 180 Day Period, directly or indirectly, (x)
the Company shall consolidate with, or merge with and into, any other
Person, and the Company shall not be the continuing or surviving
corporation of such consolidation or merger, (y) (i) any Person shall
consolidate with, or merge with or into, the Company or a Subsidiary of
the Company, and (ii) the Company shall be the continuing or surviving
corporation of such consolidation or merger or the Company shall not be
a constituent corporation in any such merger or consolidation and, in
connection with any such transaction in clauses (y)(i) or (y)(ii), (A)
all or part of the outstanding shares of Common Stock shall be changed
into or exchanged for stock or other securities of any other Person or
cash or any other property or (B) the shares of Common Stock held by
stockholders of the Company immediately prior to the consummation of
the transaction
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<PAGE>
which remain outstanding shall constitute less than fifty percent
(50%) of the total number of shares of Common Stock or less than fifty
percent (50%) of the total voting power outstanding immediately
following the consummation of the transaction, or"
8. Clause (i) of Section 13(b) of the Rights Agreement is hereby
amended to read in its entirety as follows:
"(i) in the case of any transaction described in clause (x) or
(y) of the first sentence of Section 13(a), the Person that is the
issuer of any securities into which shares of Common Stock of the
Company are converted in such merger or consolidation (or, in the case
of Section 13(a)(y)(B), the Company), and if no securities are so
issued, the Person that is the other party to such merger or
consolidation; and"
9. Section 13 of the Rights Agreement is hereby amended
further by adding the following new paragraph at the end of Section 13:
"(d) The Company covenants and agrees not to consummate a
transaction constituting a Section 13 Event unless a Distribution Date
shall have occurred as a result of the actions described in clauses
(i), (ii) or (iii) of Section 3(a) hereof."
10. Section 23(a) of the Rights Agreement is hereby amended to
read in its entirety as follows:
"(a) The Board of Directors of the Company may, at its option,
at any time prior to the earlier of (i) the Close of Business on the
tenth day following the Stock Acquisition Date (or, if the Stock
Acquisition Date shall have occurred prior to the Record Date, the
Close of Business on the tenth day following the Record Date), or (ii)
the Final Expiration Date, redeem all but not less than all of the then
outstanding Rights at a redemption price of $.01 per Right, as such
amount may be appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof (such
redemption price being hereinafter referred to as the "Redemption
Price"). Notwithstanding anything contained in this Agreement to the
contrary, the Rights shall not be exercisable after the first
occurrence of a Section 11(a)(ii) Event until such time as the
Company's right of redemption hereunder has expired. The Company may,
at its option, pay the Redemption Price in cash, shares of Common Stock
(based on the Current Market Price of the Common Stock at the time of
redemption) or any other form of consideration deemed appropriate by
the
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<PAGE>
Board of Directors. The redemption of the Rights by the Board of
Directors may be made effective at such time, on such basis and with
such conditions as the Board of Directors in its sole discretion may
establish."
11. Section 23 of the Rights Agreement is hereby amended by
adding the following new paragraph at the end of Section 23:
"(c) Notwithstanding the provisions of Section 23(a), in the
event that a majority of the Board of Directors is elected by
stockholder action by written consent, or is comprised of persons
elected at a meeting of stockholders who were not nominated by the
Board of Directors in office immediately prior to such meeting, then
for a period of one hundred eighty days (180) days following the
effectiveness of such election (the "180 Day Period"), the Rights may
not be redeemed."
12. Section 27 of the Rights Agreement is hereby amended by
deleting the parenthetical "(which lengthening or shortening, following the
first occurrence of an event set forth in clauses (i) and (ii) of the first
proviso to Section 23(a) hereof, shall be effective only if there are Continuing
Directors and shall require the concurrence of a majority of such Continuing
Directors)".
13. Section 27 of the Rights Agreement is hereby amended by
adding the following sentence as the third to last sentence of such Section 27:
"Notwithstanding anything contained in this Agreement to the contrary,
during the pendency of any 180 Day Period, no supplement or amendment
shall be made to this Agreement, other than an amendment or supplement
described in clause (i) or (ii) of the second sentence of this Section
27."
14. Section 29 of the Rights Agreement is hereby amended by
deleting each of the parentheticals "(with, where specifically provided for
herein, the concurrence of the Continuing Directors)".
15. The last sentence of Section 29 of the Rights Agreement is
hereby amended by deleting the words "or the Continuing Directors".
16. The Form of Right Certificate attached to the Rights
Agreement as Exhibit B is hereby amended by inserting after the words "August
21, 1998" the words "and amended as of October 2, 1998".
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<PAGE>
17. The second to last sentence of the carryover paragraph on
page 2 of the Form of Right Certificate attached to the Rights Agreement as
Exhibit B is hereby amended to read in its entirety as follows:
"Under certain circumstances set forth in the Rights Agreement, the
Rights may not be redeemed for a period of one hundred eighty days
(180)."
18. The last sentence of the carryover paragraph on page 2 of
the Form of Right Certificate attached to the Rights Agreement as Exhibit B is
hereby amended by replacing the words "twenty percent (20%)" with the words "ten
percent (10%)".
19. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware.
20. This Amendment may be executed in counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and both
such counterparts shall together constitute but one and the same instrument.
21. Except as expressly set forth herein, this Amendment shall
not by implication or otherwise alter, modify, amend or in any way affect any of
the terms, conditions, obligations, covenants or agreements contained in the
Rights Agreement, all of which are ratified and affirmed in all respects and
shall continue in full force and effect.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and attested, all as of the day and year first
above written.
OMNIQUIP INTERNATIONAL, INC.
By:/s/ P. Enoch Stiff
---------------------------------
P. Enoch Stiff
President and Chief Executive Officer
Attest
By:/s/ Curtis J. Laetz
-----------------------------
Curtis J. Laetz
Senior Vice President and
Chief Administrative Officer
FIRST CHICAGO TRUST COMPANY
OF NEW YORK
By:/s/ John H. Ruocco
--------------------------------
John H. Ruocco
Account Officer
Attest
By:/s/Laurence A. Woods
-----------------------------
Laurence A. Woods
Vice President
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OMNIQUIP INTERNATIONAL
ANNOUNCES AMENDMENTS
TO SHAREHOLDER RIGHTS PLAN
Port Washington, Wisconsin - October 2, 1998 - OmniQuip
International, Inc. (NASDAQ/MNS = OMQP) today announced that it had amended its
shareholder rights plan to decrease the ownership threshold from 20% to 10% and
had made several other changes to the plan.
P. Enoch Stiff, President and Chief Executive Officer of
OmniQuip, said "Our Board recently reviewed our previously-adopted rights plan
and decided that a number of changes were appropriate. In particular, we
determined to lower the threshold at which rights would become exercisable,
deleted a definitional provision which could have been misinterpreted as
suggesting that our plan included a so-called "dead hand" feature and added a
provision which restricts the Company's ability to redeem the rights for a
period of 180 days following certain events involving a change in the
composition of the Board." He emphasized that these changes were motivated by
the current stock market conditions and by recent input received by the Board
from its advisers.
Headquartered in Port Washington, Wisconsin, OmniQuip
International is the largest North American producer of telescopic material
handlers, which are marketed under the SKY TRAK and LULL brand names. The
Company also manufactures aerial work platforms under the Snorkel name, skid
steer loaders and power loaders and haulers. OmniQuip's products are used in a
wide variety of applications by commercial and residential building contractors,
as well as by customers in other construction, military, industrial and
agricultural markets.
