As filed with the Securities and Exchange Commission on
March 7, 1995 Registration No. 33-
- -----------------------------------------------------------
- -----------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
Harnischfeger Industries, Inc.
(Exact name of registrant as specified in its charter)
Delaware 39-1566457
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
13400 Bishops Lane
Brookfield, Wisconsin 53005
(414) 671-4400
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive
offices)
K. Thor Lundgren
Executive Vice President for Law and Government Affairs
13400 Bishops Lane
Brookfield, Wisconsin 53005
(414) 671-4400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------------------
Copies to:
Robert S. Osborne, P.C.
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this
Registration Statement.
If the only securities being registered on this form are
being offered pursuant to dividend reinvestment plans,
please check the following box. / /
If any of the securities being registered on this form
are to be offered on a delayed or continuous basis pursuant
to Rule 415 under the Securities Act of 1933, other than
securities offered in connection with dividend or interest
reinvestment plans, check the following box. /X/
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
- -----------------------------------------------------------
- ----------------------------------
- -----------------------------------------------------------
- ----------------------------------
<C> <S> <S> <S>
<S>
Proposed Maximum Proposed
Maximum
Title of Shares Amount to Aggregate Price
Aggregate Offering Amount of
to be Registered be Registered Per Share
Price Registration Fee
- -----------------------------------------------------------
- -----------------------------------
Common Stock $1.00
par value 2,000,000 shares $27 3/8 (1)
$54,750,000 (1) $18,879.31
- -----------------------------------------------------------
- -----------------------------------
Preferred Stock
Purchase Rights 2,000,000 rights (2)
(2) (2)
- -----------------------------------------------------------
- ------------------------------------
- -----------------------------------------------------------
- ------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the
amount of the registration fee, based upon the high
and low sales price of the Common Stock on the New
York Stock Exchange as reported in the consolidated
reporting system as of March 6, 1995.
(2) Preferred Stock Purchase Rights are evidenced by
certificates for shares of the Common Stock and
automatically trade with such Common Stock. Value
attributable to such Preferred Stock Purchase Rights,
if any, is reflected in the market price of the
Common Stock.
The registrant hereby amends this Registration
Statement on such date or dates as may be necessary to
delay its effective date until the registrant shall file a
further amendment which specifically states that this
Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933
or until this Registration Statement shall become effective
on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
- -----------------------------------------------------------
- -----------------------------------------------------------
<PAGE>
Information contained herein is subject to completion or
amendment. A registration statement relating to these
securities has been filed with the Securities and Exchange
Commission. These Securities may not be sold nor may
offers to buy be accepted prior to the time the
registration statement becomes effective. This prospectus
shall not constitute an offer to sell or the solicitation
of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation
or sale would be unlawful prior to registration or
qualification under the securities laws of any such State.
PRELIMINARY PROSPECTUS DATED MARCH 7, 1995
SUBJECT TO COMPLETION
2,000,000 Shares
Harnischfeger Industries, Inc.
Common Stock
------------------------------
This Prospectus covers the sale from time to time of
2,000,000 issued and outstanding shares (the Shares ) of
Common Stock, $1.00 par value, of Harnischfeger Industries,
Inc. (the Company ) by Trimark Select Growth Fund and
Trimark Fund (the Selling Stockholders ). See Selling
Stockholders. The Company will not receive any proceeds
from the sale of the Shares.
The Shares will be sold from time to time by the
Selling Stockholders in one or more ordinary brokerage
transactions on the New York Stock Exchange or the Pacific
Stock Exchange at market prices prevailing at the time of
such sale (subject to customary or negotiated brokerage
commissions). The Company has agreed to indemnify the
Selling Stockholders against certain civil liabilities,
including liabilities under the Securities Act of 1933, as
amended (the "Securities Act"). The Company has agreed to
pay the cost of the registration of the Shares and the
preparation of this Prospectus and the Registration
Statement under which it is filed. The expenses so payable
by the Company are estimated to be approximately $46,000.
The Common Stock is listed on the New York Stock
Exchange and the Pacific Stock Exchange under the symbol
HPH. On March 6, 1995, the last reported sales price of
the Common Stock on the New York Stock Exchange was $27 1/2
per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
----------------------------------
No dealer, salesperson or other person has been
authorized to give any information or to make any
representation not contained or incorporated by reference
in this Prospectus, and, if given or made, such other
information or representation must not be relied upon as
having been authorized. This Prospectus does not
constitute an offer to sell or a solicitation of an offer
to buy any of the securities offered hereby in any
jurisdiction to any person to whom it is unlawful to make
such offer in such jurisdiction. Neither the delivery of
this Prospectus nor any sale made hereunder shall, under
any circumstances, create any implication that there has
been no change in the affairs of the Company since the date
hereof or that the information contained herein is correct
as of any time subsequent to its date.
----------------------------------
The date of this Prospectus is __________ ___, 1995
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational
requirements of the Securities Exchange Act of 1934, as
amended (the Exchange Act ), and in accordance therewith
files reports, proxy statements and other information with
the Securities and Exchange Commission (the Commission ).
Such reports, proxy statements and other information filed
by the Company with the Commission can be inspected, and
copies may be obtained, at the Public Reference Section of
the Commission, 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates, as well as the following
Regional Offices of the Commission: Seven World Trade
Center, New York, New York 10048; and Citicorp Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661-
2511. Reports, proxy statements and other information
concerning the Company can also be inspected at the offices
of the New York Stock Exchange, Inc., 20 Broad Street, New
York, New York 10005, and the Pacific Stock Exchange,
Inc., 233 South Beaudry Street, Los Angeles, California
90012 and 301 Pine Street, San Francisco, California
94104.
The Company has filed with the Commission a
Registration Statement on Form S-3 (the Registration
Statement ) under the Securities Act covering the sale of
the Shares by the Selling Stockholders from time to time.
This Prospectus does not contain all of the information set
forth in the Registration Statement, certain parts of which
are omitted in accordance with the rules and regulations of
the Commission. For further information, reference is
hereby made to the Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the
Company with the Commission, are incorporated herein by
reference.
1. Annual Report on Form 10-K for the year ended
October 31, 1994.
2. Current Reports on Form 8-K dated November 29,
1994 (as amended by a Form 8-K/A on January 26, 1995),
January 16, 1995, February 17, 1995, and March __, 1995.
3. The description of the Common Stock set forth in
Registration Statement on Form S-4 (File No. 33-56119).
All documents filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act after the date of this Prospectus and
prior to the termination of the sale of the Shares offered
hereby shall be deemed to be incorporated by reference in
this Prospectus and to be a part hereof from the date of
filing of such documents. Any statement contained herein
or in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent
that a statement contained herein or in any other
subsequently filed document which also is or is deemed to
be incorporated by reference herein modifies or supersedes
such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each
person to whom this Prospectus is delivered, upon the
written or oral request of such person, a copy of any or
all of the documents which have been or may be incorporated
by reference in this Prospectus, other than exhibits to
such documents not specifically described above. Requests
for such documents should be directed to Harnischfeger
Industries, Inc., P.O. Box 554, Milwaukee, Wisconsin
53201, Attention: Corporate Secretary (telephone number
(414) 671-4400).
<PAGE>
THE COMPANY
The Company is a holding company for subsidiaries
involved in the worldwide manufacture and distribution of:
papermaking machinery (Beloit Corporation); surface mining
and material handling equipment (Harnischfeger
Corporation); and underground mining and environmental
equipment (Joy Technologies Inc.). On February 15, 1995,
the Company closed its sale of Syscon Corporation, thus
completing the divestiture of the companies formerly
comprising its Systems Group. The Company completed its
acquisition of Joy Technologies Inc., a world leader in
underground mining equipment and environmental products, in
an exchange of common stock on November 29, 1994. The
Company is the direct successor to a business begun over
100 years ago which, through its subsidiaries, manufactures
and markets products classified into four industry
segments: Papermaking Machinery, Mining Equipment,
Material Handling Equipment, and Environmental.
The Company s principal executive offices are located
at 13400 Bishops Lane, Brookfield, Wisconsin 53005,
telephone number (414) 671-4400.
SELLING STOCKHOLDERS
The Shares were issued and delivered to the Selling
Stockholders pursuant to a Stock Purchase Agreement (the
Stock Purchase Agreement ) dated as of September 7, 1994,
by and between the Company and Trimark Financial
Corporation. See Plan of Distribution.
The Selling Stockholders have not had any material
relationship with the Company within the past three years,
other than as an owners of the Company s Common Stock. Of
the 2,000,000 Shares offered hereunder, 1,200,000 are held
by The Trimark Select Growth Fund and 800,000 are held by
The Trimark Fund. In addition to the Shares, The Trimark
Select Growth Fund and The Trimark Fund owned 607,000 and
166,100 additional shares of the Company's Common Stock,
respectively, as of the date hereof.
PLAN OF DISTRIBUTION
The Company will not receive any proceeds from the
sale of the Shares offered hereby. The Shares will be sold
from time to time by the Selling Stockholders in one or
more ordinary brokerage transactions on the New York Stock
Exchange or the Pacific Stock Exchange at market prices
prevailing at the time of such sale (subject to customary
or negotiated brokerage commissions).
Pursuant to the Stock Purchase Agreement, the Company
agreed to file the Registration Statement of which this
Prospectus is a part by March 7, 1995, and to use its best
efforts to effect the registration of the Shares under the
Securities Act no later than April 15, 1995, and to keep
the Registration Statement of which this Prospectus is a
part effective until the earlier of (i) the date on which
all of the Shares are sold, (ii) the date after September
7, 1996, as of which the Shares held by the Selling
Stockholders represent less than 1% of the Company's Common
Stock then outstanding, and (iii) September 7, 1997. The
Company has agreed to indemnify the Selling Stockholders
against certain civil liabilities, including liabilities
under the Securities Act. The Company has agreed to pay
the cost of the registration of the Shares and the
preparation of this Prospectus and the Registration
Statement under which it is filed. The expenses so payable
by the Company are estimated to be approximately $46,000.
<PAGE>
COMMON STOCK PRICE RANGE AND DIVIDENDS
The Company's Common Stock is traded on the New York
Stock Exchange and the Pacific Stock Exchange under the
symbol HPH. As of January 31, 1995, the Company had
47,676,432 shares of Common Stock outstanding, held by
approximately 2,350 holders of record. The following table
sets forth, for the periods indicated, the high and low
sales prices for the Company's Common Stock as reported on
the New York Stock Exchange Composite Tape. During the
period in the table below, for each fiscal quarter the
Company's Board declared and the Company paid a cash
dividend of $0.10 per share of Common Stock. On March 6,
1995, the Company's Board declared a cash dividend of $0.10
per share of Common Stock payable on April 7, 1995, to
holders of record on March 27, 1995.
PRICE RANGE
High Low
1992:
First Calendar Quarter $22 1/2 $19 1/4
Second Calendar Quarter 22 7/8 19
Third Calendar Quarter 20 3/8 17 3/4
Fourth Calendar Quarter 20 1/8 16 1/8
1993:
First Calendar Quarter 20 7/8 17 1/8
Second Calendar Quarter 21 1/8 17 5/8
Third Calendar Quarter 21 3/8 19 1/8
Fourth Calendar Quarter 25 1/2 19 1/8
1994:
First Calendar Quarter 25 3/4 20 3/4
Second Calendar Quarter 22 3/4 18 1/2
Third Calendar Quarter 26 3/8 19 1/2
Fourth Calendar Quarter 28 3/8 24 1/2
1995:
First Calendar Quarter
(through March 6,
1995) 28 1/2 26
LEGAL MATTERS
The validity of the Shares offered hereby will be
passed upon for the Company by K. Thor Lundgren, its
Executive Vice President for Law and Government Affairs.
EXPERTS
The consolidated financial statements of the Company
as of October 31, 1994 and 1993 and for each of the three
years in the period ended October 31, 1994 incorporated
herein by reference to the Current Report on Form 8-K,
except as they relate to Joy Technologies Inc., have been
audited by Price Waterhouse LLP, independent accountants,
and, insofar as they relate to Joy Technologies Inc., by
Arthur Andersen LLP, independent accountants. Such
financial statements have been so incorporated in reliance
on the reports of such independent accountants given on the
authority of such firms as experts in auditing and
accounting.
<PAGE>
PART II - INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is a statement of estimated expenses of
the issuance and distribution of the securities being
registered (other than underwriting discounts and
commissions), all of which are being paid by the
registrant:
SEC Registration Fee............................$18,879.31
NYSE and PSE Listing Fees....................... 1,660.00
Printing Expenses............................... 1,000.00
Accounting Fees and Expenses.................... 16,000.00
Legal Fees and Expenses......................... 5,000.00
Miscellaneous Expenses.......................... 3,000.00
----------
Total $45,539.31
----------
----------
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the
State of Delaware permits indemnification of directors,
officers, employees and agents of corporations under
certain conditions and subject to certain limitations.
Section 14 of Article III of the Company's Bylaws provides
for indemnification of any director, officer, employee or
agent of the registrant, or any person serving in the same
capacity in any other enterprise at the request of the
Company, under certain circumstances. Article 6 of the
Company's Certificate of Incorporation eliminates the
liability of directors of the registrant under certain
circumstances for breaches of fiduciary duty to the Company
and its stockholders.
The registrant is insured against certain liabilities
which it may incur by reason of Section 14 of its Bylaws.
In addition, officers and directors are insured, at the
expense of the registrant, against certain liabilities
which might arise out of their employment and which might
not be subject to indemnification under the Bylaws.
Item 16. Exhibits
4(a) Certificate of Incorporation (incorporated by
reference to Exhibit 3(a) to the Company's
Registration Statement on Form S-4, File No. 33-
8821).
4(b) Certificate of Designations of Preferred Stock,
Series D (incorporated by reference to Exhibit
28.1(b) to the Company's Current Report on Form 8-K
dated March 25, 1992).
4(c) Amendment to Certificate of Incorporation of the
Company dated November 29, 1994 (incorporated by
reference to Exhibit 4.1(c) to Registration
Statement on Form S-8, File No. 33-57209).
4(d) Bylaws of the Company.
4(e) Rights Agreement dated as of February 8, 1989
between the Company and the First National Bank of
Boston, as Rights Agent, which includes as Exhibit
A the Certificate of Designations of Preferred
Stock, Series D, setting forth the terms of the
Preferred Stock, Series D; as Exhibit B the form of
Rights Certificate; and as Exhibit C the Summary of
Rights to Purchase Preferred Stock, Series D
(incorporated by reference to Exhibit 1 to the
Company's Registration Statement on Form 8-A filed
on February 9, 1989).
5 Opinion and consent of K. Thor Lundgren, Executive
Vice President for Law and Government Affairs of
the Company.
23(a) Consent of Price Waterhouse LLP.
23(b) Consent of Arthur Andersen LLP.
23(c) Consent of K. Thor Lundgren, Executive Vice
President for Law and Government Affairs of the
Company (included in opinion filed as Exhibit 5).
24 Power of Attorney (included in signature page).
Item 17. Undertakings.
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:
(i) To include any Prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the Prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement;
(iii) 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;
provided, however, that paragraphs (1)(i) and
(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-
effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered
therein, 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.
The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the
Registration Statement shall be deemed to
<PAGE>
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.
Insofar as indemnification for liabilities arising
under the Securities Act 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 Commission such
indemnification is against public policy as expressed in
the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
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-3 and has duly caused this
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of
Brookfield, State of Wisconsin, on March 6, 1995.
Harnischfeger Industries, Inc.
By: /s/ Jeffery T. Grade
--------------------------
Jeffery T. Grade
Chairman and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person
whose signature appears below constitutes and appoints
Jeffery T. Grade and Francis M. Corby, Jr., and each or
both of them (with full power to act alone), his true and
lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any or
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 and about the premises, 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 any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
* * * *
Pursuant to the requirements of the Securities Act
of 1933, this Registration Statement and power of attorney
have been signed on March 6, 1995, by the following persons
in the capacities indicated:
Signature Capacity
--------- --------
/s/ Jeffery T. Grade
- ----------------------------- Chairman and Chief
Jeffery T. Grade Executive Officer
/s/ Francis M. Corby, Jr.
- ------------------------------ Executive Vice President
Francis M. Corby, Jr. for Finance and
Administration (Chief
Financial Officer)
s/ James C. Benjamin
- ------------------------------ Vice President and
James C. Benjamin Controller (Chief
Accounting Officer)
/s/ Donna M. Alvarado
- ------------------------------ Director
Donna M. Alvarado
/s/ John D. Correnti
- ------------------------------ Director
John D. Correnti
- ------------------------------ Director
Don H. Davis, Jr.
/s/ Harry L. Davis
- ------------------------------ Director
Harry L. Davis
/s/ Robert M. Gerrity
- ------------------------------ Director
Robert M. Gerrity
/s/ Robert B. Hoffman
- ------------------------------ Director
Robert B. Hoffman
/s/ Ralph C. Joynes
- ------------------------------ Director
Ralph C. Joynes
/s/ Herbert V. Kohler, Jr.
- ------------------------------ Director
Herbert V. Kohler, Jr.
/s/ Jean-Pierre Labruyere
- ----------------------------- Director
Jean-Pierre Labruyere
/s/ Robert F. Schnoes
- ------------------------------ Director
Robert F. Schnoes
/s/ Donald Taylor
- ------------------------------ Director
Donald Taylor
<PAGE>
Exhibit 4(d)
3/6/95
B Y L A W S
OF
HARNISCHFEGER INDUSTRIES, INC.
ARTICLE I
OFFICES
--------
The initial registered office of the corporation
required by the Delaware General Corporation Law shall be
100 West Tenth Street, City of Wilmington, County of New
Castle, State of Delaware, and the address of the
registered office may be changed from time to time by the
Board of Directors.
The principal business office of the corporation
shall be located in the Village of Brookfield, County of
Waukesha, State of Wisconsin. The corporation may have
such other offices, either within or without the State of
Wisconsin, as the Board of Directors may designate or as
the business of the corporation may require from time to
time.
The registered office of the corporation required
by the Wisconsin Business Corporation Law may be, but need
not be, the same as its place of business in the State of
Wisconsin, and the address of the registered office may be
changed from time to time by the Board of Directors.
ARTICLE II
STOCKHOLDERS
------------
SECTION 1. Annual Meeting. The annual meeting of
the stockholders shall be held on the second Monday in the
month of April in each year, beginning with the year 1996,
at the hour of 10:00 o'clock A.M., or at such other hour as
may be fixed by or under the authority of the Board of
Directors, for the purpose of electing directors and for
the transaction of such other business as may come before
the meeting. If the day fixed for the annual meeting shall
be a legal holiday in the state where the meeting is to be
held, such meeting shall be held on the next succeeding
business day. If the election of directors shall not be
held on the day designated herein for the annual meeting of
the stockholders, or at any adjournment thereof, the Board
of Directors shall cause the election to be held at a
special meeting of the stockholders as soon thereafter as
is convenient.
SECTION 2. Special Meeting. Special meetings of
the stockholders, for any purpose or purposes, unless
otherwise prescribed by statute, may be called by the Chief
Executive Officer or by the Board of Directors, and shall
be called by the Chief Executive Officer at the request of
the holders of not less than eighty percent of all the
outstanding shares of the corporation entitled to vote at
the meeting.
SECTION 3. Place of Meeting. The Board of
Directors may designate any place, either within or without
the State of Delaware, as the place of meeting for any
annual meeting or for any special meeting called by the
Board of Directors. If no designation is made, or if a
special meeting be otherwise called, the place of meeting
shall be the principal business office of the corporation
in the State of Wisconsin.
SECTION 4. Notice of Meeting. Written notice
stating the place, day and hour of the meeting and, in the
case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less
than ten days nor more than sixty days before the date of
the meeting, either personally or by mail, by or at the
direction of the Chief Executive Officer, or the Secretary,
or the officer or persons calling the meeting, to each
stockholder of record entitled to vote at such meeting. If
mailed, such notice shall be deemed to be given when
deposited in the United States mail, addressed to the
stockholder at the stockholder's address as it appears on
the records of the corporation, with postage thereon
prepaid.
SECTION 5. Fixing of Record Date. For the purpose
of determining 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
in order to make a determination of stockholders for any
other proper purpose, the Board of Directors of the
corporation may fix in advance a date as the record date
for any such determination of stockholders, such date in
any case to be not more than sixty days and, in case of a
meeting of stockholders, not less than ten days prior to
the date on which the particular action, requiring such
determination of stockholders, is to be taken. If no
record date is fixed for the determination of stockholders
entitled to notice of or to vote at a meeting of
stockholders, or stockholders entitled to receive payment
of a dividend, the close of business on the date next
preceding the date on which notice of the meeting is mailed
or the date on which the resolution of the Board of
Directors declaring such dividend is adopted, as the case
may be, shall be the record date for such determination of
stockholders. When a determination of stockholders
entitled to vote at any meeting of stockholders has been
made as provided in this section, such determination shall
apply to any adjournment thereof; provided, however, that
the Board of Directors may fix a new record date for the
adjourned meeting.
SECTION 6. Voting Lists. The officer or agent
having charge of the stock ledger of the corporation shall
make, at least ten days before each meeting of
stockholders, a complete list of the stockholders entitled
to vote at such meeting, or any adjournment thereof,
arranged in alphabetical order, with the address of and the
number of shares held by each; which list, for a period of
ten days prior to such meeting, shall be kept at the place
where the meeting is to be held, or at another place within
the city where the meeting is to be held, which other place
shall be specified in the notice of meeting and the list
shall be subject to inspection by any stockholder for any
purpose germane to the meeting, at any time during usual
business hours. Such list shall also be produced and kept
open at the time and place of the meeting and shall be
subject to the inspection of any stockholder during the
whole time of the meeting. The original stock ledger shall
be prima facie evidence as to who are the stockholders
entitled to examine such list or ledger or to vote at any
meeting of stockholders. Failure to comply with the
requirements of this section will not affect the validity
of any action taken at such meeting.
SECTION 7. Quorum. A majority of the shares
entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of stockholders. If a
quorum is present, the affirmative vote of a majority of
the shares represented at the meeting and entitled to vote
on the subject matter shall be the act of the stockholders,
unless the vote of a greater number or voting by classes is
required by Delaware law, the Articles of Incorporation, or
these Bylaws. If less than a majority of the outstanding
shares are represented at a meeting, a majority of the
shares so represented may adjourn the meeting from time to
time without further notice. 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 called.
SECTION 8. Proxies. At all meetings of
stockholders, a stockholder may vote by proxy executed in
writing by the stockholder or by the stockholder's duly
authorized attorney in fact. Such proxy shall be filed
with the Secretary of the corporation before or at the time
of the meeting. No proxy shall be valid after three years
from the date of its execution, unless otherwise provided
in the proxy.
SECTION 9. Voting of Shares. Each outstanding
share, regardless of class, shall be entitled to one vote
on each matter submitted to a vote at a meeting of
stockholders, except to the extent that the voting rights
of any class or classes are enlarged, limited or denied by
the Articles of Incorporation or in the manner therein
provided.
SECTION 10. Voting of Shares by Certain Holders.
Neither treasury shares nor shares of the corporation held
by another corporation, if a majority of the shares
entitled to vote in the election of directors of such other
corporation is held, directly or indirectly, by the
corporation, shall be entitled to vote or to be counted for
quorum purposes. Nothing in this paragraph shall be
construed as limiting the right of the corporation to vote
its own stock held by it in a fiduciary capacity.
Shares standing in the name of another corporation,
domestic or foreign, may be voted in the name of such
corporation by its President or such other officer as the
President may appoint or pursuant to any proxy executed in
the name of such corporation by its President or such other
officer as the President may appoint in the absence of
express written notice filed with the Secretary that such
President or other officer has no authority to vote such
shares.
Shares held by an administrator, executor,
guardian, conservator, trustee in bankruptcy, receiver or
assignee for creditors may be voted by such administrator,
executor, guardian, conservator, trustee in bankruptcy,
receiver or assignee for creditors, either in person or by
proxy, without a transfer of such shares into the name of
such administrator, executor, guardian, conservator,
trustee in bankruptcy, receiver or assignee for creditors.
Shares standing in the name of a fiduciary may be voted by
such fiduciary, either in person
or by proxy.
A stockholder whose shares are pledged shall be
entitled to vote such shares unless in the transfer by the
pledgor on the books of the corporation the pledgor has
expressly empowered the pledgee to vote thereon, in which
case only the pledgee, or the pledgee's proxy, may
represent such stock and vote thereon.
SECTION 11. Stockholder Proposals. No proposal
for a stockholder vote shall be submitted by a stockholder
(a "Stockholder Proposal") to the corporation's
stockholders unless the stockholder submitting such
proposal (the "Proponent") shall have filed a written
notice setting forth with particularity (i) the names and
business addresses of the Proponent and all Persons acting
in concert with the Proponent (ii) the name and address of
the Proponent and the Persons identified in clause (i), as
they appear on the corporation's books (if they so appear),
(iii) the class and number of shares of the corporation
beneficially owned by the Proponent and the Persons
identified in clause (i); (iv) a description of the
Stockholder Proposal containing all material information
relating thereto; and (v) such other information as the
Board of Directors reasonably determines is necessary or
appropriate to enable the Board of Directors and
stockholders of the corporation to consider the Stockholder
Proposal. As used in this Section, the term "Person" means
any individual, partnership, firm, corporation,
association, trust, unincorporated organization or other
entity.
The presiding officer at any stockholders' meeting
may determine that any Stockholder Proposal was not made in
accordance with the procedures prescribed in these Bylaws
or is otherwise not in accordance with law, and if it is so
determined, such officer shall so declare at the meeting
and the Stockholder Proposal shall be disregarded.
Stockholder Proposals shall be delivered to the
Secretary at the principal executive office of the
corporation not less than ninety (90) days before the date
of the stockholders' meeting if such Stockholder Proposal
is to be submitted at an annual stockholders' meeting
(provided, however, that if such annual meeting is called
to be held before the date specified in Section 1 hereof,
such Stockholder Proposal shall be delivered no later than
the close of business on the 15th day following the day on
which notice of the date of the annual stockholders'
meeting was given). Stockholder Proposals shall be so
delivered to the Secretary at the principal executive
office of the corporation no later than the close of
business on the 15th day following the day on which notice
of the date of a special meeting of stockholders was given
if the Stockholder Proposal is to be submitted at a special
stockholders' meeting.
ARTICLE III
BOARD OF DIRECTORS
------------------
SECTION 1. General Powers. The business and
affairs of the corporation shall be managed by its Board of
Directors.
SECTION 2. Number. Tenure and Qualifications. The
number of directors of the corporation shall be twelve.
Each of the three classes of Directors established by the
corporation's Certificate of Incorporation shall consist of
four members, subject to modification by resolution of the
Board of Directors. Each director shall hold office for
the term provided in the Certificate of Incorporation and
until such director's successor shall have been elected and
qualified, or until such director's earlier death or
resignation. No director shall be or be deemed to be
removed from office prior to the expiration of such
director's term in office by virtue of a reduction in the
number of directors. Directors need not be residents of
the State of Delaware or stockholders of the corporation.
SECTION 3. Annual Meetings. An annual meeting of
the Board of Directors shall be held without other notice
than this Bylaw immediately after, and at the same place
as, the Annual Meeting of Stockholders.
SECTION 4. Special Meetings. Special meetings of
the Board of Directors may be called by or at the request
of the Chairman or any two directors. The person or
persons authorized to call special meetings of the Board of
Directors may fix any place, either within or without the
State of Delaware, as the place for holding any special
meeting of the Board of Directors called by them.
SECTION 5. Notice. Notice of any special meeting
shall be given at least 48 hours previous thereto by
written notice delivered personally or mailed to each
director at such director's business address, or by
telegram. If mailed, such notice shall be deemed to be
given when deposited in the United States mail so
addressed, with postage thereon prepaid. If notice be
given by telegram, such notice shall be deemed to be given
when the telegram is delivered to the telegraph company.
Any director may waive notice of any meeting. The
attendance of a director at a meeting shall constitute a
waiver of notice of such meeting, except where a director
attends a meeting and objects thereat to the transaction of
any business because of the meeting is not lawfully called
or convened. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the Board
of Directors need be specified in the notice or waiver of
notice of such meeting.
SECTION 6. Quorum. A majority of the number of
directors fixed by Section 2 of this Article III shall
constitute a quorum for the transaction of business at any
meeting of the Board of Directors, but if less than such
majority is present at a meeting, a majority of the
directors present may adjourn the meeting from time to time
without further notice.
SECTION 7. Manner of Acting. The act of the
majority of the directors present at a meeting at which a
quorum is present shall be the act of the Board of
Directors.
SECTION 8. Nomination of Directors; Vacancies.
Candidates for director shall be nominated either (i) by
the Board of Directors or a committee appointed by the
Board of Directors or (ii) by nomination at any
stockholders' meeting by or on behalf of any stockholder
entitled to vote at such meeting provided that written
notice of such stockholder's intent to make such nomination
or nominations has been given, either by personal delivery
or by United States mail, postage prepaid, to the secretary
of the corporation not later than (1) with respect to an
election to be held at an annual meeting of stockholders,
ninety (90) days in advance of such meeting, and (2) 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 tenth (10th) day following the date on
which notice of such meeting is first given to
stockholders. Each such notice shall set forth: (a) the
name and address of the stockholder who intends to make the
nomination and of the person or persons to be nominated;
(b) 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; (c) a description of all 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; (d) 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 (e) the
consent of each nominee to serve as a director of the
corporation if so elected. The presiding officer of the
meeting may refuse to acknowledge the nomination of any
person not made in compliance with the foregoing procedure.
Any vacancy occurring in the Board of Directors,
including a vacancy created by an increase in the number of
directors, may be filled for the remainder of the unexpired
term by the affirmative vote of a majority of the directors
then in office although less than a quorum.
SECTION 9. Action by Directors Without a Meeting.
Any action required to be taken at a meeting of directors,
or at a meeting of a committee of directors, or any other
action which may be taken at a meeting, may be taken
without a meeting if a consent in writing setting forth the
action so taken shall be signed by all of the directors or
members of the committee thereof entitled to vote with
respect to the subject matter thereof and such consent
shall have the same force and effect as a unanimous vote.
SECTION 10. Participation in a Meeting by
Telephone. Members of the Board of Directors or any
committee of directors may participate in a meeting of such
Board or committee by means of conference telephone or
similar communication equipment by means of which all
persons participating in the meeting can hear each other,
and participating in a meeting pursuant to this section 10
shall constitute presence in person at such meeting.
SECTION 11. Compensation. The Board of Directors,
by majority vote of the directors then in office and
irrespective of any personal interest of any of its
members, shall have authority to establish reasonable
compensation of all directors for services to the
corporation as directors, officers or otherwise, or to
delegate such authority to an appropriate committee. The
Board of Directors also shall have authority to provide for
reasonable pensions, disability or death benefits, and
other benefits or payments, to directors, officers and
employees and to their estates, families, dependents and
beneficiaries on account of prior services rendered by such
directors, officers and employees to the corporation. The
Board of Directors may be paid their expenses, if any, of
attendance at each such meeting of the Board.
SECTION 12. Presumption of Assent. A director of
the corporation who is present at a meeting of the Board of
Directors at which action on any corporate matter is taken
shall be presumed to have assented to the action taken
unless such director's dissent is entered in the minutes of
the meeting or unless such director files a written dissent
to such action with the person acting as the Secretary of
the meeting before the adjournment thereof or forwards such
dissent by registered mail to the Secretary of the
corporation immediately after the adjournment of the
meeting. Such right to dissent shall not apply to a
director who voted in favor of such action.
SECTION 13. Validity of Contracts. No contract or
other transaction entered into by the corporation shall be
affected by the fact that a director or officer of the
corporation is in any way interested in or connected with
any party to such contract or transaction, or is a party to
such contract or transaction, even though in the case of a
director the vote of the director having such interest or
connection shall have been necessary to obligate the
corporation upon such contract or transaction; provided,
however, that in any such case (i) the material facts of
such interest are known or disclosed to the directors or
stockholders and the contract or transaction is authorized
or approved in good faith by the stockholders or by the
Board of Directors or a committee thereof through the
affirmative vote of a majority of the disinterested
directors (even though not a quorum), or (ii) the contract
or transaction is fair to the corporation as of the time it
is authorized, approved or ratified by the stockholders, or
by the Board of Directors, or by a committee thereof.
SECTION 14. Indemnification and Insurance. 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,
arbitration, mediation or proceeding, whether civil,
criminal, administrative or investigative, whether domestic
or foreign (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, whether the basis of such
proceeding is alleged action or inaction 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 not prohibited by
the General Corporation Law of the State of Delaware, as
the same exists or may hereafter be amended (but, in the
case of any such amendment, with respect to alleged action
or inaction occurring prior to 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 without limitation attorneys' fees and expenses,
judgments, fines, ERISA excise taxes or penalties and
amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection
therewith. Such indemnification as to such alleged action
or inaction shall continue as to a person who has ceased
after such alleged action or inaction 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 the
following paragraph, the corporation shall indemnify any
such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only
if such proceeding (or part thereof) was authorized by the
Board unless such proceeding (or part thereof) is a counter
claim, cross-claim, third party claim or appeal brought by
such person in any proceeding. The right to
indemnification conferred in this Section 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; provided,
however, that, if the General Corporation law of the State
of Delaware requires, the payment of such expenses incurred
by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which
service was or is rendered by such person 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 only upon delivery to the
corporation of an undertaking, by or on behalf of such
director or officer, to repay all amounts so advanced if it
shall ultimately be determined by final judicial decision
from which there is no further appeal that such director or
officer is not entitled to be indemnified for such expenses
under this Section or otherwise. The corporation may, by
action of the Board, provide indemnification to an employee
or agent of the corporation or to a director, trustee,
officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise of
which the corporation owns fifty percent or more with the
same scope and effect as the foregoing indemnification of
directors and officers or such lesser scope and effect as
shall be determined by action of the Board.
If a claim under the preceding paragraph is not
paid in full by the corporation within thirty days after a
written claim has been received by the corporation, the
claimant may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim and,
if successful in whole or in part in any such claim or
suit, or in a claim or suit brought by the corporation to
recover an advancement of expenses under this paragraph,
the claimant shall be entitled to be paid also the expense
of prosecuting or defending any such claim or suit. It
shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final
disposition where the required undertaking, if any is
required, has been tendered to the corporation) that the
claimant has not met the applicable standard of conduct
which make it permissible under the General Corporation Law
of the State of Delaware 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 claimant is proper
in the circumstances because he or she has met the
applicable standard of conduct set forth in the General
Corporation Law of the State of Delaware, nor an actual
determination by the corporation (including its Board of
Directors, independent legal counsel, or its stockholders)
that the claimant has not met such applicable standard of
conduct set forth in the General Corporation Law of the
State of Delaware, shall be a defense to the action or
create a presumption that the claimant has not met the
applicable standard of conduct. In any suit brought by
such person to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the corporation to
recover an advancement of expenses hereunder, the burden of
proving that such person is not entitled to be indemnified,
or to have or retain such advancement of expenses, shall be
on the corporation.
The right to indemnification and the payment of
expenses incurred in defending a proceeding in advance of
its final disposition conferred in this Section shall not
be exclusive of any other right which any person may have
or hereafter acquire under any statute, provision of the
Certificate of Incorporation, By-law, agreement, vote of
stockholders or disinterested directors or otherwise.
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,
whether or not the corporation would have the power to
indemnify such person against such expense, liability or
loss under the General Corporation Law of the State of
Delaware.
In the event that any of the provisions of this
Section 14 (including any provision within a single
section, paragraph or sentence) is held by a court of
competent jurisdiction to be invalid, void or otherwise
unenforceable, the remaining provisions are severable and
shall remain enforceable to the full extent permitted by
law.
SECTION 15. Committees of Directors. 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
as alternate committee members, who may replace any absent
or disqualified member at any committee meeting. In the
absence or disqualification of a committee member, the
member or members present at any meeting and not
disqualified from voting, whether such member or members
constitute a quorum, may unanimously appoint another
director to act at the meeting in place of the absent or
disqualified member. Any such committee 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
(except that a committee may, to the extent authorized in
the resolution(s) providing for the issuance of shares of
stock adopted by the Board, fix any of the preferences or
rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the corporation
or the conversion into, or the exchange of such shares for,
shares of any other class or classes or any other series of
the same or any other class or classes of stock of the
corporation), 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 Bylaws of the
corporation; and, unless the resolution expressly so
provides, no such committee shall have the power or
authority to declare a dividend or to authorize the
issuance of stock, or to adopt a certificate of ownership
and merger.
ARTICLE IV
OFFICERS
----------
SECTION 1. Number. The officers of the
corporation shall be a Chairman of the Board (who must be a
member of the Board of Directors and who also may be an
employee of the corporation), a Chief Executive Officer, a
President, one or more Vice Presidents (the number thereof
to be determined by the Board of Directors), a Secretary, a
Treasurer and a Controller, each of whom shall be elected
by the Board of Directors. The Board of Directors may also
elect a Chief Operating Officer and one or more Group
Presidents and may designate one or more of the Vice
Presidents as Executive Vice Presidents or Senior Vice
Presidents. Such other officers and assistant officers and
agents as may be deemed necessary may be elected or
appointed by the Board of Directors. Any two or more
offices may be held by the same person, except the offices
of President and Secretary, and the offices of President
and Vice President.
SECTION 2. Election and Term of Office. The
officers of the corporation shall be elected annually by
the Board of Directors at the first meeting of the Board of
Directors held after each annual meeting of the
stockholders. If the election of officers shall not be
held at such meeting, such election shall be held as soon
thereafter as convenient. Each officer shall hold office
until such officer's successor shall have been duly elected
or until such officer's death or until such officer shall
resign or shall have been removed in the manner hereinafter
provided.
SECTION 3. Removal. Any officer or agent elected
or appointed by the Board of Directors may be removed by
the Board of Directors whenever in its judgment the best
interests of the corporation would be served thereby, but
such removal shall be without prejudice to the contract
rights, if any, of the person so removed. Election or
appointment shall not of itself create contract rights.
SECTION 4. Vacancies. A vacancy in any office
because of death, resignation, removal, disqualification or
otherwise, may be filled by the Board of Directors for the
unexpired portion of the term.
SECTION 5. Chairman of the Board. The Chairman of
the Board shall preside at all meetings of the Board of
Directors and stockholders.
SECTION 6. Chief Executive Officer. The Chief
Executive Officer shall be the principal executive officer
of the corporation and, subject to the control of the Board
of Directors, shall supervise and control all of the
business and affairs of the corporation, and establish
current and long-range objectives, plans and policies. The
Chief Executive Officer shall have authority, subject to
such rules as may be prescribed by the Board of Directors,
to appoint such agents and employees of the corporation as
the Chief Executive Officer shall deem necessary, to
prescribe their powers, duties and compensation, and to
delegate authority to them. Such agents and employees
shall hold office at the discretion of the Chief Executive
Officer. The Chief Executive Officer shall have authority
to sign, execute and acknowledge, on behalf of the
corporation, all deeds, mortgages, bonds, stock
certificates, contracts, leases, reports and all other
documents or instruments necessary or proper to be executed
in the course of the corporation's regular business or
which shall be authorized by resolution of the Board of
Directors; and, except as otherwise provided by law or the
Board of Directors, the Chief Executive Officer may
authorize the President, an Executive Vice President,
Senior Vice President, or other officer or agent of the
corporation to sign, execute and acknowledge such documents
or instruments in the Chief Executive Officer's place and
stead. In general, the Chief Executive Officer shall
perform all duties incident to the office of Chief
Executive Officer and such other duties as may be
prescribed by the Board of Directors from time to time. In
the absence of the Chairman of the Board, the Chief
Executive Officer shall, when present, preside at all
meetings of the stockholders and the Board of Directors.
SECTION 7. President. The President shall direct,
administer and coordinate the activities of the corporation
in accordance with policies, goals and objectives
established by the Chief Executive Officer and the Board of
Directors. The President shall also assist the Chief
Executive Officer in the development of corporate policies
and goals. In the absence of both the Chairman of the
Board and the Chief Executive Officer, the President shall,
when present, preside at all meetings of the stockholders
and the Board of Directors.
SECTION 8. The Chief Operating Officer, Group
Presidents and the Vice Presidents. In the absence of the
President or in the event of the President's death,
inability or refusal to act, the Chief Operating Officer,
the Group Presidents and the Executive Vice Presidents in
the order designated at the time of their election, or, in
the absence of any designation, then in the order of their
election (or in the event there be no Chief Operating
Officer, Group Presidents or Executive Vice Presidents or
they are incapable of acting, the Senior Vice Presidents in
the order designated at the time of their election, 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 Board of
Directors may designate certain Vice Presidents as being in
charge of designated divisions, plants, or functions of the
corporation's business and add appropriate description to
their title. Any Chief Operating Officer, Group President
or Vice President may sign, with the Secretary or an
Assistant Secretary, certificates for shares of the
corporation; and shall perform such other duties as from
time to time may be assigned to such Chief Operating
Officer, Group President or Vice President by the Chief
Executive Officer or by the Board of Directors.
SECTION 9. The Secretary. The Secretary shall:
(a) keep the minutes of the stockholders' and of the Board
of Directors' meetings in one or more books provided for
that purpose; (b) see that all notices are duly given in
accordance with the provisions of these Bylaws or as
required by law; (c) be custodian of the corporate records
and of the seal of the corporation and see that the seal of
the corporation is affixed to all documents, the execution
of which on behalf of the corporation under its seal is
duly authorized; (d) keep or cause to be kept a register of
the post office address of each stockholder which shall be
furnished to the Secretary by such stockholder; (e) sign
with the Chief Executive Officer, President, or any Vice
President, certificates for shares of the corporation, the
issuance of which shall have been authorized by resolution
of the Board of Directors; (f) have general charge of the
stock transfer books of the corporation; and (g) in
general, perform all duties incident to the office of
Secretary and such other duties as from time to time may be
assigned to the Secretary by the Chief Executive Officer or
by the Board of Directors.
SECTION 10. The Treasurer. The Treasurer shall
give a bond for the faithful discharge of the Treasurer's
duties in such sum and with such surety or sureties as the
Board of Directors shall determine. The Treasurer shall:
(a) have charge and custody of and be responsible for all
funds and securities of the corporation; receive and give
receipts for monies due and payable to the corporation from
any source whatsoever, and deposit all such monies in the
name of the corporation in such banks, trust companies or
other depositories as shall be selected in accordance with
the provisions of Article VI of these Bylaws; and (b) in
general, perform all of the duties incident to the office
of Treasurer and such other duties as from time to time may
be assigned to the Treasurer by the Chief Executive Officer
or by the Board of Directors.
SECTION 11. The Controller. The Controller shall:
(a) keep, or cause to be kept, correct and complete books
and records of account, including full and accurate
accounts of receipts and disbursements in books belonging
to the corporation; and (b) in general, perform all duties
incident to the office of Controller and such other duties
as from time to time may be assigned to the Controller by
the Chief Executive Officer or by the Board of Directors.
SECTION 12. Assistant Secretaries and Assistant
Treasurers. The Assistant Secretaries may sign with the
President, or any Vice President, certificates for shares
of the corporation, the issuance of which shall have been
authorized by a resolution of the Board of Directors.
Assistant Treasurers shall respectively give bonds for the
faithful discharge of their duties in such sums and with
such sureties as the Board of Directors shall determine.
The Assistant Secretaries and Assistant Treasurers, in
general, shall perform such duties as shall be assigned to
them by the Secretary or the Treasurer, respectively, or by
the Chief Executive Officer or the Board of Directors.
SECTION 13. Salaries. The salaries of the
officers shall be fixed from time to time by the Board of
Directors and no officer shall be prevented from receiving
such salary by reason of the fact that such officer is also
a director of the corporation.
ARTICLE V
APPOINTED EXECUTIVES
--------------------
SECTION 1. Vice Presidents. The Chief Executive
Officer may appoint, from time to time, as the Chief
Executive Officer may see fit, and fix the compensation of,
one or more Vice Presidents whose title will include words
describing the function of such Vice President's office and
the group, division or other unit of the Company in which
such Vice President's office is located. Each of such
appointed Vice Presidents shall hold office during the
pleasure of the Chief Executive Officer, shall perform such
duties as the Chief Executive Officer may assign, and shall
exercise the authority set forth in the Chief Executive
Officer's letter appointing such Vice President.
SECTION 2. Assistants. The Chief Executive
Officer may appoint, from time to time, as the Chief
Executive Officer may see fit, and fix the compensation of,
one or more Assistants to the Chairman, one or more
Assistants to the President, and one or more Assistants to
the Vice Presidents, each of whom shall hold office during
the pleasure of the Chief Executive Officer, and shall
perform such duties as the Chief Executive Officer may
assign.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
-------------------------------------
SECTION 1. Contracts. The Board of Directors may
authorize any officer or officers, agent or agents, to
enter into any contract or execute and deliver any
instrument in the name of and on behalf of the corporation,
and such authority may be general or confined to specific
instances.
SECTION 2. Loans. No loans shall be contracted on
behalf of the corporation and no evidences of indebtedness
shall be issued in its name unless authorized by a
resolution of the Board of Directors. Such authority may
be general or confined to specific instances.
SECTION 3. Checks, Drafts, etc. All checks,
drafts or other orders for the payment of money, notes or
other evidences of indebtedness issued in the name of the
corporation, shall be signed by such officer or officers,
agent or agents, of the corporation and in such manner as
shall from time to time be determined by resolution of the
Board of Directors.
SECTION 4. Deposits. All funds of the corporation
not otherwise employed shall be deposited from time to time
to the credit of the corporation in such banks, trust
companies or other depositories as the Board of Directors
may select.
ARTICLE VII
CERTIFICATE FOR SHARES AND THEIR TRANSFER
-----------------------------------------
SECTION 1. Certificates for Shares. Certificates
representing shares of the corporation shall be in such
form as shall be determined by the Board of Directors.
Such certificates shall be signed by the Chief Executive
Officer, President, or any Vice President and by the
Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary. Any or all of the signatures on the
certificate may be a 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 before such certificate is issued, it may be
issued by the corporation with the same effect as if such
person were such officer, transfer agent, or registrar at
the date of issue. All certificates for shares shall be
consecutively numbered or otherwise identified. The name
and address of the person to whom the shares represented
thereby are issued, with the number of shares and date of
issue, shall be entered on the stock ledger of the
corporation.
All certificates surrendered to the corporation for
transfer shall be canceled and no new certificate shall be
issued until the former certificate for a like number of
shares shall have been surrendered and canceled, except
that in the case of a lost, destroyed or mutilated
certificate, a new one may be issued therefor upon such
terms and indemnity to the corporation as the Board of
Directors may prescribe.
SECTION 2. Transfer of Shares. Transfer of shares
of the corporation shall be made only on the stock ledger
of the corporation by the holder of record thereof or by
such person's legal representative, who shall, if so
required, furnish proper evidence of authority to transfer,
or by such person's attorney thereunto authorized by power
of attorney duly executed and filed with the Secretary of
the corporation, and on surrender for cancellation of the
certificate for such shares. The person in whose name
shares stand on the books of the corporation shall be
deemed by the corporation to be the owner thereof for all
purposes.
ARTICLE VIII
FISCAL YEAR
------------
The fiscal year of the corporation shall
begin on the first day of November and end on the
thirty-first day of October in each year.
ARTICLE IX
DIVIDENDS
----------
The Board of Directors may from time to time
declare, and the corporation may pay, dividends on its
outstanding shares in the manner and upon the terms and
conditions provided by law and by the Articles of
Incorporation.
ARTICLE X
SEAL
----------
The Board of Directors shall provide a
corporate seal which shall be circular in form and shall
have inscribed thereon the name of the corporation and the
state of incorporation and the words "Corporate Seal".
ARTICLE XI
WAIVER OF NOTICE
----------------
Whenever any notice is required to be given
to any stockholder or director of the corporation under the
provisions of these Bylaws or under the provisions of the
Articles of Incorporation or under the provisions of the
Delaware General Corporation Law, a waiver thereof in
writing, signed at any time by the person or persons
entitled to such notice of the meeting, shall be deemed
equivalent to the giving of such notice.
ARTICLE XII
AMENDMENTS
-----------
These Bylaws may be amended or repealed and
new Bylaws may be adopted by the Board of Directors at any
regular or special meeting thereof only with the
affirmative vote of at least 80% of the total number of
Directors.
Exhibit 5
March 7, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: Harnischfeger Industries, Inc.
Registration Statement on S-3
Ladies and Gentlemen:
I have acted as counsel to Harnischfeger
Industries, Inc. ("HII" or the "Company") in connection
with the preparation of a Registration Statement on Form S-
3 (the "Registration Statement") pertaining to an offering
of up to 2,000,000 shares of the Company's common stock,
$1.00 par value (the "Shares").
I am familiar with the corporate proceedings to
date with respect to the proposed sale of the Shares and
have examined such records, documents and matters of law
and satisfied myself as to such matters of fact as I have
considered relevant for the purposes of this opinion.
In rendering the opinions expressed below, I have
assumed, without independent investigation, that:
(a) the signatures of persons signing all
documents in connection with which my opinion is rendered
are genuine and authorized;
(b) all documents submitted to me as originals or
as duplicate originals are authentic;
(c) all documents submitted to me as copies,
whether certified or not, conform to the authentic original
documents which such copies purport to represent; and
(d) except in the case of the Company, all parties
to the documents reviewed by me have full power and
authority to execute, deliver and perform thereunder and
under the documents required or permitted to be delivered
and performed thereunder, and all such documents have been
duly authorized by all necessary corporate and other action
on the part of such parties, have been duly executed by or
on behalf of such parties and have been duly delivered by
such parties.
Based on the foregoing, I am of the opinion that:
(a) The Company is a corporation validly existing
and in good standing under the laws of the State of
Delaware.
(b) The Shares are validly issued, fully paid and
non-assessable, except as described in paragraph (c) below.
(c) Under the Wisconsin Business Corporation Law,
as interpreted by a decision of the Supreme Court of
Wisconsin, holders of the Shares, as stockholders of a
corporation which is qualified to do business and has its
principal place of business in Wisconsin, shall in certain
circumstances be personally liable to the employees of the
Company in an amount equal to the consideration paid for
the Shares owned by such stockholders for all debts owing
to such employees for services performed for the Company,
but not exceeding six months service in any one case.
I wish to advise you that the Registration
Statement has not yet become effective as of the writing of
this letter.
I hereby consent to the filing of this Opinion as
an exhibit to the Registration Statement and to the
reference to this opinion under the section entitled "Legal
Matters" in the Prospectus contained in the Registration
Statement.
I do not find it necessary for the purposes of this
opinion, and accordingly we do not purport to cover herein,
the application of the securities or "Blue Sky" laws of the
various states to the sale of the Shares. I render no
opinion as to the laws of any jurisdiction other than the
law of the State of Wisconsin, the United States of America
and the internal corporate law of the State of Delaware.
This opinion is furnished to you in connection with the
filing of the Registration Statement, and is not to be
used, circulated, or otherwise relied upon for any other
purpose.
Very truly yours,
K. Thor Lundgren
Executive Vice President for Law and
Government Affairs and General Counsel
Harnischfeger Industries, Inc.
Exhibit 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Prospectus constituting part of this Registration Statement
on Form S-3 of our report dated December 5, 1994, which
appears on page __ of the Current Report on Form 8-K dated
March __, 1995. We also consent to the incorporation by
reference of our report on the Financial Statement
Schedule, which appears on page __ of such Current Report
on Form 8-K. We also consent to the reference to us under
the heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
Milwaukee, Wisconsin
March __, 1995
Exhibit 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby
consent to the incorporation by reference in this
registration statement File No. ________ of our reports
dated March 25, 1994 included (or incorporated by
reference) in Joy Technologies Inc.'s Form 10-K for the
year ended February 25, 1994 and to all references to our
Firm included in this registration statement.
Pittsburgh, Pennsylvania
March __, 1995
March 7, 1995
VIA ELECTRONIC FILING
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: Harnischfeger Industries, Inc.
Registration Statement on S-3
-----------------------------
Ladies and Gentlemen:
Pursuant to Section 6(a) of the Securities Act of
1933, as amended, and in accordance with Regulation S-T,
concurrently herewith Harnischfeger Industries, Inc. (the
"Company") is electronically filing with the Securities and
Exchange Commission (the "Commission") its registration
statement on Form S-3 ("Registration Statement"). The
Company has previously sent a wire transfer to the
account of the Commission in the amount of $18,879.31
representing the applicable filing fee in connection with
the Registration Statement.
The Registration Statement relates to 2,000,000
shares of the Company's Common Stock, par value $1.00 per
share, purchased from the Company by The Trimark Select
Growth Fund and The Trimark Fund as described in the
Registration Statement.
Please note that restated financial statements
prepared in accordance with Regulation S-X where one or
more business combinations accounted for by the pooling of
interest method of accounting have been consummated
subsequent to the most recent fiscal year are incorporated
into the Registration Statement by reference to a Form 8-K
to be filed by the Company in the next few days as required
by Item 11(b)(iii) on Form S-3.
Any communications with respect to the Registration
Statement should be made to K. Thor Lundgren, Executive
Vice President for Law and Government Affairs of the
Company at (414)797-6844, to Robert S. Osborne of Kirkland
& Ellis (312)861-2368 or me at (414)797-6435.
Very truly yours,
/s/ Eric B. Fonstad
Eric B. Fonstad
Senior Corporate Counsel
and Assistant Secretary
cc: K. Thor Lundgren
Robert S. Osborne
