Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________________
THE MANITOWOC COMPANY, INC.
(Exact name of registrant as specified in its charter)
Wisconsin 39-0448110
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
500 South 16th Street
Manitowoc, Wisconsin 54220
(Address of principal executive offices) (Zip Code)
The Manitowoc Company, Inc. Deferred Compensation Plan
(Full title of the plan)
Robert R. Friedl Copy to:
Vice President and
Chief Financial Officer Harvey A. Kurtz
The Manitowoc Company, Inc. Foley & Lardner
500 South 16th Street 777 East Wisconsin Avenue
Manitowoc, Wisconsin 54220 Milwaukee, Wisconsin 53202
(414) 684-4410
(Name, address and telephone number,
including area code, of
agent for service)
__________________________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to be to be Price Per Offering Registration
Registered Registered Share Price Fee
Common Stock, 150,000
$.01 par value shares $31.50(1) $4,725,000(1) $1,630
Common Stock 150,000
Purchase Rights rights (2) (2) (2)
(1) Estimated pursuant to Rule 457(c) under the Securities Act of
1933 solely for the purpose of calculating the registration fee
based on the average of the high and low prices for The Manitowoc
Company, Inc. Common Stock as reported on the New York Stock
Exchange on September 6, 1996.
(2) The value attributable to the Common Stock Purchase Rights is
reflected in the market price of the Common Stock to which the
Rights are attached.
_________________________________
In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified
in Part I are not required to be filed with the Securities and Exchange
Commission (the "Commission") as part of this Form S-8 Registration
Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been previously filed by The
Manitowoc Company, Inc. (the "Company") or The Manitowoc Company, Inc.
Deferred Compensation Plan (the "Plan") with the Commission and are
incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1995, which includes certified financial statements as of and
for the year ended December 31, 1995.
2. The Plan's Annual Report on Form 11-K for the year ended
December 31, 1995.
3. All other reports filed by the Company or the Plan pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since December 31, 1995.
4. The description of the Company's Common Stock contained in
Item 1 of the Company's Registration Statement on Form 8-A, and any
amendment or report filed for the purpose of updating such description.
5. The description of the Company's Common Stock Purchase
Rights contained in Item 1 of the Company's Registration Statement on Form
8-A, and any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company or the Plan
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of filing of this Registration Statement and prior to such time
as the Company files a post-effective amendment to this Registration
Statement which indicates that all securities offered hereby have been
sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference in this Registration Statement and
to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Pursuant to the Wisconsin Business Corporation Law and the
Company's By-laws, directors and officers of the Company are entitled to
mandatory indemnification from the Company against certain liabilities and
expenses (i) to the extent such officers or directors are successful in
the defense of a proceeding and (ii) in proceedings in which the director
or officer is not successful in defense thereof, unless it is determined
that the director or officer breached or failed to perform his duties to
the Company and such breach or failure constituted: (a) a willful failure
to deal fairly with the Company or its shareholders in connection with a
matter in which the director or officer had a material conflict of
interest; (b) a violation of the criminal law unless the director or
officer had reasonable cause to believe his or her conduct was lawful or
had no reasonable cause to believe his or her conduct was unlawful; (c) a
transaction from which the director or officer derived an improper
personal profit; or (d) willful misconduct. It should be noted that the
Wisconsin Business Corporation Law specifically states that it is the
public policy of Wisconsin to require or permit indemnification in
connection with a proceeding involving securities regulation, as described
therein, to the extent required or permitted as described above.
Additionally, under the Wisconsin Business Corporation Law, directors of
the Company are not subject to personal liability to the Company, its
shareholders or any person asserting rights on behalf thereof for certain
breaches or failures to perform any duty resulting solely from their
status as directors except in circumstances paralleling those in
subparagraphs (a) through (d) outlined above.
Expenses for the defense of any action for which indemnification
may be available may be advanced by the Company under certain
circumstances.
The indemnification provided by the Wisconsin Business
Corporation Law and the Company's By-laws is not exclusive of any other
rights to which a director or officer may be entitled.
The Company maintains a liability insurance policy for its
directors and officers as permitted by Wisconsin law which may extend to,
among other things, liability arising under the Securities Act of 1933, as
amended.
The Company has entered into Indemnity Agreements with each of
the members of the Company's Board of Directors and each executive officer
of the Company. Pursuant to such Indemnity Agreements, the Company is
required to indemnify each such person to the fullest extent permitted or
required by the Wisconsin Business Corporation Law against any liability
incurred by such person in any proceeding in which such person is a party
because he is a director or executive officer of the Company.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits have been filed (except where otherwise
indicated) as part of this Registration Statement:
Exhibit No. Exhibit
(4.1) The Manitowoc Company, Inc. Deferred Compensation
Plan, as amended and restated
(4.2) Rights Agreement, dated as of September 5, 1986, as
amended as of August 12, 1988, between The
Manitowoc Company, Inc. and Morgan Shareholder
Services Trust Company (incorporated by reference
to Exhibit 4 to The Manitowoc Company, Inc.'s
Annual Report on Form 10-K for the fiscal year
ended June 28, 1986, and The Manitowoc Company,
Inc.'s Current Report on Form 8-K dated August 26,
1988)
(5) Opinion of Foley & Lardner
(23.1) Consent of Coopers & Lybrand L.L.P.
(23.2) Consent of Arthur Andersen LLP
(23.3) Consent of Foley & Lardner (contained in Exhibit 5
hereto)
(24) Power of Attorney relating to subsequent amendments
(included on the signature page to this
Registration Statement)
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement to
include any material information with respect to the plan of distribution
not previously disclosed in the Registration Statement or any material
change to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities
Act of 1933, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Manitowoc, and
State of Wisconsin, on this 9th day of September, 1996.
THE MANITOWOC COMPANY, INC.
By: /s/ Fred M. Butler
Fred M. Butler
President and Chief Executive
Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated. Each person whose signature
appears below constitutes and appoints Fred M. Butler and Robert R.
Friedl, and each of them individually, his true and lawful attorney-in-
fact and agent, with full power of substitution and revocation, for him
and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this
Registration Statement and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and
agents, or either of them, may lawfully do or cause to be done by virtue
hereof.
Signature Title Date
/s/ Fred M. Butler Chief Executive Officer and September 9, 1996
Fred M. Butler Director (Principal
Executive Officer)
/s/ Robert R. Friedl Vice President and Chief September 9, 1996
Robert R. Friedl Financial Officer (Chief
Financial Officer and
Principal Accounting
Officer)
/s/ Dean H. Anderson Director September 9, 1996
Dean H. Anderson
/s/ James P. McCann Director September 9, 1996
James P. McCann
/s/ George T. McCoy Director September 9, 1996
George T. McCoy
/s/ Guido R. Rahr, Director September 9, 1996
Jr.
Guido R. Rahr, Jr.
/s/ Gilbert F. Director September 9, 1996
Rankin, Jr.
Gilbert F. Rankin, Jr.
Director
Robert K. Silva
/s/ Robert S. Throop Director September 9, 1996
Robert S. Throop
The Plan. Pursuant to the requirements of the Securities Act of
1933, the Treasurer of the Company, who administers the Plan, has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Manitowoc, and
State of Wisconsin, on this 9th day of September, 1996.
THE MANITOWOC COMPANY, INC.
DEFERRED COMPENSATION PLAN
/s/ Philip D. Keener
Philip D. Keener
Plan Administrator
<PAGE>
EXHIBIT INDEX
THE MANITOWOC COMPANY, INC. DEFERRED COMPENSATION PLAN
Exhibit No. Exhibit
(4.1) The Manitowoc Company, Inc. Deferred Compensation
Plan, as amended and restated
(4.2) Rights Agreement dated as of September 5, 1986,
as amended as of August 12, 1988, between The
Manitowoc Company, Inc. and Morgan Shareholder
Services Trust Company (incorporated by
reference to Exhibit 4 to The Manitowoc Company,
Inc.'s Annual Report on Form 10-K for the fiscal
year ended June 28, 1986, and The Manitowoc
Company, Inc.'s Current Report on Form 8-K dated
August 26, 1988)
(5) Opinion of Foley & Lardner
(23.1) Consent of Coopers & Lybrand L.L.P.
(23.2) Consent of Arthur Andersen LLP
(23.3) Consent of Foley & Lardner (contained in Exhibit
5 hereto)
(24) Power of Attorney relating to subsequent
amendments (included on the signature page to
this Registration Statement)
Exhibit 4.1
THE MANITOWOC COMPANY, INC.
DEFERRED COMPENSATION PLAN
SECTION 1. PURPOSE AND EFFECTIVE DATE.
1.1 The purpose of The Manitowoc Company, Inc. Deferred
Compensation Plan (the "Plan") is to promote the best interests of The
Manitowoc Company, Inc. (the "Company") and its subsidiaries and
affiliates and the stockholders of the Company by (1) attracting and
retaining well-qualified persons for service as nonemployee directors of
the Company and promoting identity of interest between directors and
stockholders of the Company; and (2) attracting and retaining key
management employees possessing a strong interest in the successful
operation of The Manitowoc Company, Inc. and its subsidiaries and
affiliates (collectively referred to herein as the "Employer") and
encouraging their continued loyalty, service, and counsel to the Employer.
It is intended that the Plan will allow participants to elect
voluntarily to defer and convert, in the case of nonemployee directors,
all or a portion of their retainer and meeting fees for services as a
director and, in the case of key employees, a portion of their
compensation, into Manitowoc Stock and other investments for payment upon
retirement, death, disability, or designated distribution date.
1.2 The effective date of the Plan is June 30, 1993. The Plan
was amended and restated on May 7, 1996, to permit participation by key
employees of subsidiaries adopting the Plan.
SECTION 2. DEFINITIONS.
The following terms have the following meanings unless the context
clearly indicates otherwise:
2.1 "Administrator" means the Treasurer of the Company or such
successor officer of the Company designated by the Board.
2.2 "Agreement" means the written agreement entered into
between the Employer and a Participant, whereby the Participant agrees to
defer a portion of his Compensation pursuant to the provisions of the Plan
and the Employer agrees to make benefit payments in accordance with the
terms of the Plan and such Agreement. An Agreement may be the "Initial
Agreement" applicable to a Participant or a "Modified Agreement" (in form
approved by the Administrator), properly completed and signed.
2.3 "Beneficiary" means the person or entity designated by the
Participant to be the beneficiary of the Deferred Compensation Account of
the Participant. If a valid designation of Beneficiary is not in effect
at the time of the death of a Participant, the estate of the Participant
is deemed to be the sole Beneficiary of such Account. If a Participant
dies before receiving full distribution of his Account, any remaining
distributions shall be made to the Beneficiary. If a Beneficiary dies
while entitled to receive distributions from the Plan, any remaining
payments shall be paid to the estate of the Beneficiary. Beneficiary
designations shall be in writing, filed with the Administrator, and in
such form as the Administrator may prescribe for this purpose.
2.4 "Board" means the Board of Directors of the Company.
2.5 "Change of Control" means the first to occur of the
following:
(a) The acquisition by any person or entity, or group
thereof acting in concert, of beneficial ownership of
securities of the Company which, together with
securities previously owned, confer upon the holder
the voting power, on all matters brought to a vote of
stockholders, of thirty percent (30%) or more of all
the then outstanding shares of the Company.
(b) The sale, assignment or transfer of assets (or earning
power) of the Company or any subsidiary or
subsidiaries, in a transaction or series of
transactions, to a twenty percent (20%) stockholder
(as herein defined) or any affiliate of a twenty
percent (20%) stockholder, if the aggregate market
value thereof exceeds fifty percent (50%) of the
aggregate book value, determined by the Company in
accordance with generally accepted accounting
principles, of all the assets (or earning power) of
the Company determined on a consolidated basis before
such transaction or the first of such transactions,
unless the Board approved such transaction or
transactions before the date on which the twenty
percent (20%) stockholder became a twenty percent
(20%) stockholder. For purposes of this definition of
Change of Control, a twenty percent (20%) stockholder
means any person, entity, or group of persons and/or
entities acting in concert, who or which, together
with his, its or their affiliates and associates, is
the beneficial owner of securities of the Company
which confer upon the holder the voting power, on all
matters brought to a vote of stockholders, of twenty
percent (20%) or more of all the then outstanding
shares of the Company.
(c) The merger or consolidation of the Company (or of one
or more subsidiaries of the Company, in a transaction
or series of transactions, if the aggregate book value
of the assets thereof exceeds fifty percent (50%) of
the aggregate book value of all the assets of the
Company determined on a consolidated basis before such
transaction or the first of such transactions), with
or into a twenty percent (20%) stockholder or any
affiliate of a twenty percent (20%) stockholder,
unless the Board approved such merger or consolidation
before the date on which the twenty percent (20%)
stockholder first became a twenty percent (20%)
stockholder.
(d) The dissolution of the Company, unless the Board
approved such dissolution before the date on which the
twenty percent (20%) stockholder first became a twenty
percent (20%) stockholder.
(e) Change in the composition of the Board after which a
majority of the members thereof are not continuing
directors. Continuing director, for this purpose,
means (i) any member of the Board while such person is
a member of the Board, who is not an acquiring person,
or an affiliate or associate of an acquiring person,
or a representative of an acquiring person or of any
such affiliate or associate, and was a member of the
Board prior to July 4, 1993, or (ii) any person who
subsequently becomes a member of the Board, who is not
an acquiring person, or an affiliate or associate of
an acquiring person, or a representative of an
acquiring person or of any such affiliate or
associate, if such person's nomination for election or
election to the Board is recommended or approved by a
majority of the continuing directors. As used herein,
affiliate and associate shall have the respective
meanings ascribed to such terms in Rule 12b-2 under
the Exchange Act.
(f) The commencement (within the meaning of Rule 14d-2 of
the General Rules and Regulations under the Exchange
Act) of a tender or exchange offer which, if
successful, would result in a change of control of the
Company.
(g) A determination by the Board, in view of then current
circumstances or impending events, that a change of
control of the Company has occurred or is imminent,
which determination shall be made for the specific
purpose of triggering the operative provisions of the
Company's contingent employment agreements.
2.6 "Company" means The Manitowoc Company, Inc., a Wisconsin
corporation, or any successor corporation.
2.7 "Code" means the Internal Revenue Code of 1986, as
interpreted by regulations and rulings issued pursuant thereto, all as
amended and in effect from time to time.
2.8 "Compensation" means (i) for nonemployee director
Participants, the Retainer Fee and (ii) for key employee Participants,
"Compensation" has the same meaning as the term "eligible compensation,"
as defined in The Manitowoc Company, Inc. RSVP Profit Sharing Plan (the
"RSVP Plan") and incorporated herein by this reference, without regard to
the dollar limits applied to that definition by Code Section 401(a)(17),
and without regard to whether such Participants are eligible to
participate in the RSVP Plan.
2.9 "Date" means the date an Initial Agreement, a Modified
Agreement, an Investment Election Change Form, a Transfer Election Form,
or an Extraordinary Distribution Request Form is received by the
Administrator.
2.10 "Deferred Compensation Account," "Account," or "Subaccount"
means the accounts maintained on the books of the Employer for each
Participant.
2.11 "Disability" means disability as set forth in Section
22(e)(3) of the Code.
2.12 "Distribution Date" means the date designated by a
Participant in accordance with Section 6 for the commencement of payment
of amounts credited to his Account.
2.13 "Employer" means the Company and each subsidiary and
affiliate of the Company which adopts this Plan.
2.14 "Employer Contribution" means the amount of contribution
which may be made each year on behalf of key employee Participants, as
described in Section 7.
2.15 "Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time.
2.16 "Extraordinary Distribution Request Form" means the Plan
form (in the form approved by the Administrator) properly completed and
signed by a Participant (or a Beneficiary after the Participant's death)
who wishes to request an extraordinary distribution of amounts credited to
his Account.
2.17 "Investment Election Change Form" means the Plan form (in
the form approved by the Administrator) properly completed and signed by a
Participant who wishes to change his investment election prospectively as
to new deposits to his Account.
2.18 "Manitowoc Stock" means the common stock, $.01 par value,
of the Company.
2.19 "Participant" means any nonemployee member of the Board and
any key employee of an Employer who has executed an Agreement. Key
employee status for a Plan Year is determined as of the last day of the
immediately preceding Plan Year, or, as to newly-hired employees in their
first year of employment, at time of hire based on current base rate of
pay. Key employees, for all Plan purposes, include only elected officers
of the Company and other highly compensated employees of an Employer who
have Compensation in a Plan Year equal to or greater than the indexed
amount described in Code Section 414(q)(1)(c). A Participant who ceases
to be a nonemployee director or a key employee shall cease making
deferrals as of the first day of the Plan Year following such loss of
eligibility, but shall remain an inactive Participant until all amounts
due such person under the Plan have been distributed in full.
2.20 "Plan Year" means the fiscal year of the Company.
2.21 "Retainer Fee" means those fees paid by the Company to
nonemployee directors for services rendered on the Board or any committee
of the Board, including attendance fees and fees for serving as committee
chair. Any Retainer Fee payable for services during a month is deemed to
accrue to the nonemployee director on the first day of such month for Plan
purposes.
2.22 "Rule 16b-3," "Former Rule," and "New Rule" have the
following meanings. "Rule 16b-3" means Rule 16b-3 of the General Rules
and Regulations under the Exchange Act as promulgated by the Securities
Exchange Commission or its successor, as amended and in effect from time
to time. "Former Rule" means Rule 16b-3, as in effect prior to May 1,
1991. "New Rule" means Rule 16b-3 promulgated under the Exchange Act
pursuant to Releases Nos. 34-28869 (February 8, 1991) and 34-29131 (April
26, 1991) and as thereafter revised or amended.
2.23 "Transfer Election Form" means a valid transfer election
form (in the form approved by the Administrator) properly completed and
signed by a Participant who wishes to transfer funds from one investment
Subaccount to another.
SECTION 3. AGREEMENTS AND ELECTIONS TO DEFER.
3.1 Each nonemployee director and key employee as of July 3,
1993 is initially eligible to defer Compensation accruing on and after
August 1, 1993, provided such Participant's Initial Agreement Date is
before that date. Thereafter, such persons shall be eligible to commence
deferrals only on the first day of any subsequent Plan Year provided their
Initial Agreement Date is before such date.
3.2 Each new nonemployee director and new key employee, on and
after July 4, 1993, shall be entitled to defer Compensation accruing on
and after the first day of the month following his Initial Agreement Date,
provided such Initial Agreement Date is not more than thirty (30) days
after the Date such person initially becomes eligible under the Plan.
Thereafter, such persons shall be eligible to commence deferrals only as
of the first day of any subsequent Plan Year provided their Initial
Agreement Date is before such date.
3.3 A Participant has no further right to defer Compensation
under the Plan after termination of service to the Company as a
nonemployee director, or after termination of employment in the case of
all other Participants, or, if earlier, upon receipt of written notice
from the Administrator of revocation of an employee's status as a key
employee. Such revocations by the Administrator are effective only upon
the first day of the Plan Year following the date that the employee is
provided such written notice. If a Participant terminates service with
the Employer and subsequently returns to service, he shall be treated as a
new employee (or director if applicable) for all Plan purposes.
3.4 A nonemployee director Participant may make a deferral
election with respect to all or part of his Compensation, in increments of
five percent (5%). A key employee Participant may make separate deferral
elections, in whole percentages, with respect to regular pay and incentive
bonuses. Deferral elections shall not exceed forty percent (40%) of
regular pay for any Plan Year and deferral elections with regard to
incentive bonuses are not subject to a percentage maximum; provided,
however, that the maximum amount of Compensation of a key employee
Participant for any Plan Year which may be considered for purposes of
determining the Employer contribution authorized by Section 7.1 shall not
exceed twenty-five percent (25%) for any Plan Year. Deferral elections
remain in effect from year to year until modified or revoked in accordance
with Plan rules.
3.5 Each Participant shall designate on his Initial Agreement
the following information:
(a) the percentage of Compensation to be deferred;
(b) the Subaccounts to which the deferred amounts are to
be allocated;
(c) the Distribution Date;
(d) whether distributions are to be in a lump sum, in
installments, or a combination thereof; and
(e) the Participant's Beneficiaries.
Subject to the restrictions in Section 3.9, below, persons subject to
Section 16 of the Exchange Act shall be afforded a further opportunity to
determine in advance whether applicable withholding requirements on
amounts distributed from Subaccount A are to be satisfied by an Employer
through withholding of shares of Manitowoc Stock or whether the
Participant will provide cash from other sources for this purpose.
3.6 Subject to the restrictions in Section 3.9, below, a
Participant may increase the deferral amount specified in his Initial
Agreement by completing and executing a Modified Agreement and submitting
it to the Administrator. Such Modified Agreement shall be effective with
respect to Compensation accruing on and after the first day of the Plan
Year beginning after the Date of the Modified Agreement.
3.7 Subject to the restrictions in Section 3.9, below, a
Participant may reduce, or completely revoke, his deferral election by
completing and executing a Modified Agreement and submitting it to the
Administrator. Such Modified Agreement shall be effective with respect to
Compensation accruing on and after the first day of the Plan Year
beginning after the Date of the Modified Agreement; provided, however,
that the effective date of such an election shall be the first day of the
month following the Date of the Modified Agreement if the Participant
establishes to the Administrator that the reason for the
reduction/revocation election is an unanticipated event or events beyond
the control of the Participant that would result in severe financial
hardship to the Participant if the reduction/revocation is not permitted.
In the event that the Administrator allows a Participant to reduce or
cease making deferral contributions under the Plan other than on the first
day of a Plan Year, the Participant shall forfeit any Employer
Contributions to which his Account would otherwise be entitled for the
Plan Year in which such reduction or revocation occurred.
3.8 A Participant shall be permitted at any time to modify his
Beneficiary election by completing and executing a revised Beneficiary
designation and submitting it to the Administrator.
3.9 A Participant who is subject to Section 16 of the Exchange
Act is subject to the following additional restrictions regarding his
election to defer compensation under the Plan.
(a) The Date of any Initial Agreement or Modified Agreement
making an election pertaining to withholding of shares of Manitowoc Stock
must be at least six (6) months prior to the date the tax is determined.
(b) During the period that the Plan is under the Former Rule, a
Participant who is subject to Section 16 of the Exchange Act may, after
commencing deferrals under the Plan, make changes (increases, decreases,
or revocations) in the amount of such deferrals into Subaccount A
effective as of the first day of a subsequent Plan Year for Compensation
accruing on and after that date.
(c) On and after the mandatory effective date of the New Rule,
a person who is subject to Section 16 of the Exchange Act may make changes
(increases, decreases, or revocations) in the amount of such Participant's
deferrals into Subaccount A effective as of the first day of the month
coincident with or following the date that is six (6) months after the
Modified Agreement Date directing such change.
All elections made under this Section 3 by persons subject to Section 16
of the Exchange Act are irrevocable and will remain in effect until
another irrevocable election becomes effective.
SECTION 4. INVESTMENT DIRECTIONS.
4.1 In connection with his Initial Agreement and thereafter,
from time to time as determined by the Participant (or a Beneficiary after
the Participant's death), each Participant shall provide written
investment directions indicating the portion of such Participant's
deferred amount, including for key employees any Employer contribution,
that is to be allocated to Subaccount A or Subaccount B (as such terms are
hereinafter defined in Section 6.5) of the Participant's Account. Any
apportionment of newly deposited funds to Subaccounts shall be in ten
percent (10%) increments.
4.2 Subject to the restrictions in Section 4.4, below, an
investment direction contained in an Initial Agreement and any Investment
Election Change Form shall become effective on the first day of the month
following the Initial Agreement Date or the Investment Election Change
Date.
4.3 Subject to the restrictions in Section 4.4, below, a
Participant (or a Beneficiary after the Participant's death) may transfer
to one or more different Subaccounts all or a part (not less than ten
percent (10%)) of the amounts credited to a Subaccount by completing and
executing a Transfer Election Form and submitting it to the Administrator.
Subject to the restrictions in Section 4.4, below, such transfers among
Subaccounts shall become effective on the first day of the calendar month
following the Transfer Election Date.
4.4 A Participant who is subject to Section 16 of the Exchange
Act is subject to the following additional restrictions regarding his
investment directions and investment change directions under the Plan.
(a) During the period that the Plan is under the Former Rule, a
Participant who is subject to Section 16 of the Exchange Act may make
changes in the investment directions which are incorporated in his Initial
Agreement (or a subsequent Modified Agreement) effective as of the first
day of a subsequent Plan Year. Such person may not, while the Former
Rules are in effect, make any transfers of existing Account balances into
or out of Subaccount A.
(b) On and after the mandatory effective date of the New Rule,
a person who is subject to Section 16 of the Exchange Act may make any
Initial Agreement investment election directing, or any Investment
Election Change Form affecting, the investment funds in Subaccount A
effective the first day of the month coincident with or following the date
that is six (6) months after such Initial Agreement Date or the Investment
Election Change Form Date, whichever is applicable.
(c) On and after the mandatory effective date of the New Rule,
any transfer of existing Account balances to or from Subaccount A
requested by a person who is then subject to Section 16 of the Exchange
Act shall be effective the first day of the month coincident with or
following the date that is six (6) months after the Transfer Election
Date.
All investment elections made under Section 4 by persons subject to
Section 16 of the Exchange Act are irrevocable and will remain in effect
until another irrevocable investment election becomes effective.
SECTION 5. DISTRIBUTIONS.
5.1 Each Participant shall, subject to the restrictions in
Section 5.11, below, designate on his Initial Agreement one of the
following dates as a Distribution Date with respect to amounts credited to
his Account thereafter:
(a) the first day of the calendar month following the date
of the Participant's death;
(b) the first day of the calendar month following the date
of the Participant's Disability;
(c) the first day of the calendar month following the date
of termination of the Participant's service as a
member of the Board if the Participant is a
nonemployee director; or, if the Participant is an
employee of an Employer, the first day of the calendar
month following the date of termination of the
Participant's employment with the Employer;
(d) the first day of a calendar month specified by the
Participant;
(e) the earliest to occur of a, b, c, or d, or any
combination of such options.
5.2 A Participant shall direct on his Initial Agreement whether
distributions from his Account, or separately as to each Subaccount, are
to be made in (i) a lump sum or (ii) no more than one-hundred eighty (180)
monthly, sixty (60) quarterly, or fifteen (15) annual installments. Each
installment shall be determined by dividing the Account (or Subaccount, if
applicable) balance by the number of remaining installments. If a
Participant receives a distribution on an installment basis, amounts
remaining in his Account (or Subaccount, if applicable) before payment in
full is completed shall continue to accrue earnings and incur losses in
accordance with the terms of the Plan. Except as provided in Section 5.3,
all distributions shall be made to the Participant.
5.3 If the Distribution Date is the first day of the month
following the Participant's death or a fixed date which in fact occurs
after the Participant's death or if at the time of death the Participant
was receiving distributions in installments, the balance remaining in the
Participant's Account shall be payable to his Beneficiary. Upon the death
of a Beneficiary who is receiving distributions in installments, the
balance remaining in the Account of the Beneficiary shall be payable to
the estate of the Beneficiary.
5.4 All distributions to Beneficiaries shall be in a lump sum
except when the Distribution Date is the first day of the month following
the Participant's death and the Agreement specifies installment payments
to the Beneficiary.
5.5 All distributions from Subaccount A shall be made in shares
of Manitowoc Stock except that cash shall be distributed in lieu of
fractional shares. Distributions from any other Subaccount shall be paid
in cash. Unless a Participant has specified different distribution
methods as to separate Subaccounts, or in the case of extraordinary
distributions as described below, distributions will be deemed to be made
from each Subaccount pro rata.
5.6 A Participant may modify his election as to Distribution
Date and distribution form (to Participant and/or Beneficiary) with
respect to Compensation accruing in subsequent Plan Years by completing
and executing a Modified Agreement and submitting it to the Administrator.
A Participant may make similar modifications and/or specify the maximum
dollar amount to be distributed to the Participant during any calendar
year commencing prior to the Participant's termination of employment with
an Employer, with respect to the Participant's accumulated Account, by
completing and executing a Modified Agreement and submitting it to the
Administrator by no later than the close of the calendar year preceding
the calendar year in which distributions to the Participant hereunder
would otherwise commence. No more than one modification under each of the
two preceding sentences shall be permitted unless the Administrator
determines that a greater number of modifications shall be made uniformly
available to all Participants on a prospective only basis.
5.7 Notwithstanding the foregoing, a Participant (or
Beneficiary after the death of the Participant) may request an
extraordinary distribution of all or part of the amount credited to his
Account because of hardship. A distribution shall be deemed to be because
of hardship if such distribution is necessary due to unanticipated events
beyond the control of the Participant that would result in severe
financial hardship to the Participant if the extraordinary distribution is
not permitted.
5.8 A request for an extraordinary distribution shall be made
by completing and executing an Extraordinary Distribution Request Form and
submitting it to the Administrator. All extraordinary distributions shall
be subject to approval by the Board.
5.9 The Extraordinary Distribution Request Form shall indicate:
(a) the amount to be distributed from the Account;
(b) the Subaccount(s) from which the distribution is to be
made; and
(c) the hardship requiring the distribution.
The amount of any extraordinary distribution shall not exceed the amount
determined by the Board to be required to meet the hardship.
5.10 Subject to the restrictions in Section 5.11, below, an
extraordinary distribution shall be made with respect to amounts credited
to all Subaccounts on the first day of the calendar month next following
approval of the extraordinary distribution request by the Board.
5.11 A Participant who is subject to Section 16 of the Exchange
Act is subject to additional restrictions regarding his distribution
directions under the Plan.
(a) Any Distribution Date elected by a Participant subject to
Section 16 of the Exchange Act shall be effective, and distributions shall
be made pursuant to such election, on the first day of the month
coincident with or following the date that is six (6) months after the
Initial Agreement Date or Modified Agreement Date establishing such
Distribution Date.
(b) For a Participant requesting an extraordinary distribution
who is subject to Section 16 of the Exchange Act, any portion of such
distribution to be paid from Subaccount A shall be distributed on the
first day of the month coincident with or following the date that is six
(6) months after the Date of the Extraordinary Distribution Request Form.
All distribution elections made under Section 5 by persons subject to
Section 16 of the Exchange Act are irrevocable and will remain in effect
until another irrevocable distribution election becomes effective.
5.12 Notwithstanding the foregoing, the Administrator may adopt
any additional rules and modify existing Plan rules and procedures, as
necessary, to assure compliance with the insider trading liability rules
under Section 16 of the Exchange Act, as amended and revised, and as in
effect from time to time.
5.13 Any remaining balance in a Participant's Account shall be
distributed in a single lump sum amount to the Participant, or his
Beneficiary if applicable, upon the occurrence of a Change in Control of
the Company. Such distribution shall occur not later than thirty (30)
days following the date on which the Change in Control of the Company
occurred and shall include the accelerated distribution of any installment
payments otherwise to be paid.
SECTION 6. ACCOUNTS AND SUBACCOUNTS.
6.1 The Employer shall establish an Account, with one or more
Subaccounts, on its books for each Participant as specified by the
Participant in his Agreement and shall credit to each such Subaccount any
amounts deferred to such Subaccount by the Participant under the Plan,
including for key employees any Employer Contribution allocable to the
Account. Such credits for deferred Compensation are to be made within a
reasonable time (not to exceed thirty (30) days) following the time that
the deferred Compensation, but for the Participant's deferral election,
would otherwise have been paid or made available to the Participant. The
credits for Employer Contributions, if any, shall be made as provided in
Section 7. The Employer shall deduct amounts it is required to withhold
on the deferred Compensation at the time it is credited to a Participant's
Account, under any state, federal, or local law for payroll or other taxes
or charges, from the Participant's Compensation which is not deferred, to
the maximum extent possible, before reducing the amount of the
Participant's deferrals.
6.2 The Accounts of Participants in the Plan are immediately
vested and nonforfeitable.
6.3 Subaccounts established for Participants shall be deemed to
be fully invested at all times in the investment option assigned to the
Subaccount, as such designations may be revised from time to time in
accordance with Section 6.4, below. The Employer shall separately account
for credited amounts as units of the designated investment vehicle having
the value attributable to units of the investment option at all times,
taking into account reinvestment of all dividends pertaining to such
investment, but without adjustment for any income tax consequences
attributable to deemed Employer ownership of such investments.
6.4 The Administrator shall provide to each Participant, not
less frequently than semiannually, a statement with respect to each of his
Subaccounts in such form as the Administrator determines to be
appropriate, setting forth credited amounts added during the reporting
period, any units of each investment option attributable to each
Subaccount and their current value, amounts distributed from each
Subaccount to the Participant since the last report, the current balance
to the credit of such Participant in each Subaccount, and other
appropriate information.
6.5 The Subaccounts available under the Plan are as set forth
below:
Subaccount A. A bookkeeping account whose value shall be based on
investments in Manitowoc Stock.
Subaccount B. A bookkeeping account whose value shall be based on
investments in the Fidelity Investments Balanced Fund Mutual Fund.
The Administrator shall, from time to time, review the investment options
available under the Plan and may, on a prospective basis, eliminate,
modify, or otherwise change such investment options, provided, however,
that no fewer than two (2) investment options shall at all times be made
available under the Plan including Manitowoc Stock and one balanced mutual
fund.
SECTION 7. EMPLOYER CONTRIBUTIONS.
7.1 The Employer shall credit to the Accounts of key employee
Participants, in accordance with their investment directions on file with
the Plan, an Employer Contribution equal to the amount of deferred
compensation of a key employee for a Plan Year multiplied by the rate,
determined as a percentage of eligible compensation, of fixed and variable
profit sharing contributions plus one percent (1%) that the Participant
has received from his Employer for the Plan Year under the RSVP Plan,
subject to the restrictions of Section 3.7 and Section 3.4. If the
Participant is not a participant in the RSVP Plan, the amount of Employer
contribution made on behalf of the Participant shall be determined in a
similar manner but with regard to the qualified defined contribution
retirement program in which the Participant does participate, as
determined by the Administrator.
7.2 Such Employer Contribution shall be credited to the Account
of the eligible Participant within a reasonable time (not to exceed thirty
(30) days) following the time the Employer deposits its contributions to
the RSVP Plan.
SECTION 8. MANITOWOC STOCK.
8.1 The amount of Manitowoc Stock which may be allocated to
Participants' Accounts under the Plan is determined by the amount of
Compensation deferred under the Plan and the investment directions
provided by Participants. In the event of any merger, share exchange,
reorganization, consolidation, recapitalization, stock dividend, stock
split or other change in corporate structure affecting Manitowoc Stock,
appropriate adjustments shall be made to the units credited to Subaccount
A for each Participant.
8.2 Plan record keeping pertaining to Manitowoc Stock shall be
based on the fair market value of Manitowoc Stock. Fair market value per
share of Manitowoc Stock on any given date is defined for Plan purposes as
the value, as determined by the Administrator, at which shares were traded
on that date in representative trades reported in the principal
consolidated transaction reporting system with respect to securities
listed or admitted to trading on The New York Stock Exchange on such date
or, if no Manitowoc Stock is traded on such date, the most recent date on
which Manitowoc Stock was traded.
8.3 Participants shall have no rights as a stockholder
pertaining to Manitowoc Stock units credited to their Plan Accounts. No
Manitowoc Stock unit nor any right or interest of a Participant under the
Plan in any Manitowoc Stock unit may be assigned, encumbered, or
transferred, except by will or the laws of descent and distribution. The
rights of a Participant hereunder with respect to any Manitowoc Stock unit
are exercisable during the Participant's lifetime only by him or his
guardian or legal representative.
8.4 Any shares of Manitowoc Stock distributed to Participants
under the Plan shall be subject to such stock transfer orders and other
restrictions as the Administrator may deem advisable under the rules,
regulations and other requirements of the Company, any stock exchange upon
which Manitowoc Stock is then listed and any applicable Federal, state or
foreign securities law, and the Administrator may cause a legend or
legends to be put on any such certificates to make appropriate reference
to such restrictions.
SECTION 9. GENERAL PROVISIONS.
9.1 The Administrator shall administer and interpret the Plan,
and supervise preparation of Agreements, forms, and any amendments
thereto. Interpretation of the Plan shall be within the sole discretion
of the Administrator and shall be final and binding upon each Participant
and Beneficiary. The Administrator may adopt and modify rules and
regulations relating to the Plan as it deems necessary or advisable for
the administration of the Plan. If the Administrator shall also be a
Participant or Beneficiary, any determinations affecting such person's
participation in the Plan which would otherwise be made by the
Administrator shall be made by the Board or its delegate for this purpose.
Headings are given to the sections of the Plan solely as a convenience to
facilitate reference. The reference to any statute, regulation, or other
provision of law shall be construed to refer to any amendment to or
successor of such provision of law. With regard to persons subject to
Section 16 of the Exchange Act, transactions under the Plan are intended
to comply with all applicable conditions of Rule 16b-3 or its successor
under the Exchange Act. The Plan shall be construed so that transactions
under the Plan will be exempt from Section 16 of the Exchange Act pursuant
to regulations and interpretations issued from time to time by the
Securities and Exchange Commission.
9.2 The right of the Participant or his Beneficiary to receive
a distribution hereunder shall be an unsecured claim against the general
assets of the Company or any Employer and neither the Participant nor any
Beneficiary shall have any rights in or against any amount credited to his
Account or any other specific assets of the Company or any Employer. The
right of a Participant or Beneficiary to the payment of benefits under
this Plan shall not be assigned, encumbered, or transferred, except by
will or the laws of descent and distribution. The rights of a Participant
hereunder are exercisable during the Participant's lifetime only by him or
his guardian or legal representative.
9.3 This Plan is unfunded and is maintained by Employers
primarily for the purpose of providing deferred compensation for
nonemployee directors of the Company and a select group of management and
highly compensated employees. Nothing contained in this Plan and no
action taken pursuant to its terms shall create or be construed to create
a trust of any kind, or a fiduciary relationship between the Company or
any Employer and any Participant or Beneficiary, or any other person. The
Employers may authorize the creation of one or more trusts or other
arrangements to assist the Employers in meeting the obligations created
under the Plan. Any liability to any person with respect to the Plan
shall be based solely upon any contractual obligations that may be created
pursuant to the Plan. No obligation of an Employer hereunder shall be
deemed to be secured by any pledge of, or other encumbrance on, any
property of the Company or any Employer.
9.4 No later than the date as of which an amount first becomes
includible in the gross income of the Participant for Federal income tax
purposes with respect to any participation under the Plan, the Participant
shall pay to the Employer, or make arrangements satisfactory to the
Employer regarding the payment of, any Federal, state, local or foreign
taxes of any kind required by law to be withheld with respect to such
amount.
9.5 There shall be no time limit on the duration of the Plan.
The Board may, at any time, amend or terminate the Plan without the
consent of the Participants or Beneficiaries, provided, however, that no
amendment or termination may reduce any Account balance accrued on behalf
of a Participant based on deferrals already made, or divest any
Participant of rights to which he would have been entitled if the Plan had
been terminated immediately prior to the effective date of such amendment.
This Section shall not, however, restrict the right of the Board to cause
all Accounts to be distributed in the event of Plan termination, provided
all Participants and Beneficiaries are treated in a uniform and
nondiscriminatory manner in such event. In addition, no amendment may
become effective until stockholder approval is obtained if the amendment
(i) except as expressly provided in the Plan, materially increases the
aggregate number of shares of Manitowoc Stock that may be allocated in a
Plan Year, (ii) materially increases the benefits accruing to Participants
under the Plan or (iii) materially modifies the eligibility requirements
for participation in the Plan.
9.6 The Plan will become effective on July 4, 1993, subject to
approval by a majority of the votes cast at a duly held meeting of the
Company's stockholders at which a quorum representing a majority of all
outstanding voting stock is, either in person or by proxy, present.
9.7 Costs of establishing and administering the Plan will be
paid by the Employers in such proportion as determined by the Treasurer.
9.8 Compensation and Employer Contributions credited to an
Account hereunder shall not be considered "compensation" for the purpose
of computing benefits under any qualified retirement plan maintained by an
Employer, but shall be considered compensation for welfare benefit plans,
such as life and disability insurance programs sponsored by the Employers.
9.9 If any of the provisions of the Plan shall be held to be
invalid, or shall be determined to be inconsistent with the purpose of the
Plan, the remainder of the Plan shall not be affected thereby.
9.10 This Plan shall be binding upon and inure to the benefit of
the Company and each Employer, their successors and assigns and the
Participants and their heirs, executors, administrators, and legal
representatives.
9.11 This Plan shall be construed in accordance with and
governed by the law of the State of Wisconsin to the extent not preempted
by federal law.
F O L E Y & L A R D N E R
A T T O R N E Y S A T L A W
CHICAGO FIRSTAR CENTER SAN DIEGO
JACKSONVILLE 777 EAST WISCONSIN AVENUE SAN FRANCISCO
LOS ANGELES MILWAUKEE, WISCONSIN 53202-5367 TALLAHASSEE
MADISON TELEPHONE (414) 271-2400 TAMPA
ORLANDO FACSIMILE (414) 297-4900 WASHINGTON, D.C.
SACRAMENTO WEST PALM BEACH
WRITER'S DIRECT LINE
September 10, 1996
The Manitowoc Company, Inc.
500 South 16th Street
Manitowoc, Wisconsin 54220
Ladies and Gentlemen:
We have acted as special counsel for The Manitowoc Company,
Inc., a Wisconsin corporation (the "Company"), in connection with the
preparation of a Form S-8 Registration Statement (the "Registration
Statement") to be filed by the Company with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities
Act"), relating to 150,000 shares of the Company's Common Stock, $.01 par
value (the "Common Stock"), the associated rights to purchase shares of
Common Stock accompanying each share of Common Stock (the "Rights"), and
interests in The Manitowoc Company, Inc. Deferred Compensation Plan, as
amended and restated (the "Plan"), which may be issued or acquired
pursuant to the Plan. The terms of the Rights are as set forth in that
certain Rights Agreement, dated as of September 5, 1986, as amended as of
August 12, 1988, by and between the Company and Morgan Shareholder
Services Trust Company (the "Rights Agreement").
We have examined: (a) the Plan; (b) signed copies of the
Registration Statement; (c) the Company's Amended and Restated Articles of
Incorporation and Restated Bylaws; (d) the Rights Agreement; (e)
resolutions of the Company's Board of Directors relating to the Plan and
the issuance of securities thereunder; and (f) such other proceedings,
documents and records as we have deemed necessary to enable us to render
this opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation validly existing under the
laws of the State of Wisconsin.
2. It is presently contemplated that the shares of Common
Stock to be acquired by the Plan will be purchased either in the open
market or directly from the Company or other private sources. To the
extent that the shares of Common Stock acquired by the Plan constitute
shares issued by and purchased from the Company, such shares of Common
Stock, when issued pursuant to the terms and conditions of the Plan, and
as contemplated in the Registration Statement, will be validly issued,
fully paid and nonassessable, except with respect to wage claims of, or
other debts owing to, employees of the Company, as provided in Section
180.0622(2)(b) of the Wisconsin Business Corporation Law and judicial
interpretations thereof.
3. The Rights when issued pursuant to the terms of the Rights
Agreement will be validly issued.
We consent to the use of this opinion as an exhibit to the
Registration Statement. In giving our consent, we do not admit that we
are "experts" within the meaning of Section 11 of the Securities Act or
within the category of persons whose consent is required by Section 7 of
the Securities Act.
Very truly yours,
FOLEY & LARDNER
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
of The Manitowoc Company, Inc. on Form S-8 (File No. 0-6645) of our report
dated February 6, 1996, on our audits of the consolidated financial
statements and financial statement schedule of The Manitowoc Company, Inc.
as of December 31, 1995 and 1994, and for the year ended December 31,
1995, and the period from July 3, 1994 to December 31, 1994, which report
is incorporated by reference in this Form S-8.
/s/ Coopers & Lybrand, L.L.P.
Milwaukee, Wisconsin
September 3, 1996
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports
dated July 28, 1994 included in The Manitowoc Company Inc.'s Form 10-K for
the year ended December 31, 1995 and to all references to our Firm
included in this registration statement.
ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin
September 4, 1996
