SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): April 22, 1999
HARNISCHFEGER INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
1-9299 39-1566457
(Commission File No.) (IRS Employer Identification No.)
3600 South Lake Drive 53235-3716
St. Francis, Wisconsin (Zip Code)
(Address of principal executive offices)
Registrant's telephone number, including area code: (414) 486-6400
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ITEM 5. OTHER EVENTS.
On April 23, 1999, Harnischfeger Industries, Inc. (the
"Company") announced that its board of directors (the "Board") adopted
amendments to the Company's bylaws designed to provide stockholders a more
direct and active voice in the conduct of the Company's business. The amendments
adopted by the Board are designed to address the concerns of the Trinity Group,
as reflected in the consent solicitation being undertaken by the Trinity Group.
The amendments are filed herewith as Exhibit 4.1. The text of the press release
announcing the amendments is filed herewith as Exhibit 99.1.
The descriptions of the matters described in this Current
Report on Form 8-K do not purport to be complete and are qualified in their
entirety by reference to the exhibits hereto.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits.
4.1 Amendments to the bylaws of Harnischfeger Industries, Inc.
99.1 Text of press release dated April 23, 1999 relating to amendment
of the bylaws.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
Dated: April 23, 1999
HARNISCHFEGER INDUSTRIES, INC.
By: /s/ James A. Chokey
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Name: James A. Chokey
Title: Senior Vice President,
Secretary and General Counsel
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EXHIBIT LIST
Exhibit
No. Description
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4.1 Amendments to the bylaws of Harnischfeger Industries, Inc.
99.1 Text of press release dated April 23, 1999 relating to amendment of
the bylaws.
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Exhibit 4.1
HARNISCHFEGER INDUSTRIES, INC.
Amendments to Bylaws
1. A new Article XIII is hereby added at the end of the Bylaws, which
Article reads in its entirety as follows:
ARTICLE XIII
SIGNIFICANT TRANSACTIONS
The affirmative vote or consent of the holders of a majority of all
shares of stock of the corporation unconditionally entitled to vote in
elections of directors, considered for the purpose of this Article XIII
as one class, shall be required for the adoption, approval or
authorization of any significant transaction (as hereinafter defined).
A proxy statement responsive to the requirements of the Securities
Exchange Act of 1934, as amended, shall be mailed to stockholders of
the corporation for purpose of soliciting stockholder approval of such
significant transaction and shall contain at the front thereof, in a
prominent place, any recommendation as to the advisability (or
inadvisability) of the significant transaction which the directors may
choose to make and an opinion of a reputable investment banking firm as
to the fairness (or not) of the terms of such significant transaction
from the point of view of the stockholders of the corporation (such
investment banking firm to be selected by a majority of the directors
and to be paid a reasonable fee for their services by the corporation
upon receipt of such opinion). As used in this Article XIII, the term
"significant transaction" shall include any sale, merger, joint venture
or similar transaction of the corporation or any of its subsidiaries of
a size in excess of 25% of the assets of the corporation and its
subsidiaries, taken as a whole, as determined in good faith by the
Board. The provisions of this Article XIII shall not be applicable to
any transaction between the corporation and any of its subsidiaries or
between any subsidiaries of the corporation.
2. Section 1 of Article IV of the Bylaws is hereby amended and restated in
its entirety to read as follows:
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
may be a current or former 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 Vice Chairman of
the Board, 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
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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. The Corporate Governance Committee of the
Board of Directors shall consider at least annually whether or not the
Chairman of the Board should be a past or present employee of the
corporation and shall make a recommendation to the Board of Directors
based thereon. The Chairman of the Corporate Governance Committee will
be the lead member of the non-management directors for purposes of
executive sessions of the Board of Directors when management is not
present and for directing communications between non-management
directors and stockholders, including with respect to the matters set
forth in Article XIII hereof and for such other purposes as the Board
of Directors may determine.
3. A new Section 16 is hereby added to the end of Article III of the
Bylaws, which Section reads in its entirety as follows:
SECTION 16. Special Meetings of Non-Management Directors.
Notwithstanding anything to the contrary contained in these Bylaws, a
special meeting between all stockholders of the corporation and the
non-management members of the Board of Directors may be called at any
time by stockholders holding, of record or beneficially, not less than
one-quarter of all the shares unconditionally entitled to vote in
elections of directors. Stockholders may request a meeting by
delivering a request to the Corporate Governance Committee of the Board
of Directors setting forth in writing with particularity (i) the names
and addresses of the stockholders requesting the meeting and of their
respective representatives; (ii) a representation and evidence of
ownership from each such stockholder regarding the class and number of
shares of stock of the corporation owned by each such stockholder; and
(iii) a description of the business purpose of the meeting containing
all material information relating thereto. Such stockholders shall also
submit such other information as the Corporate Governance Committee of
the Board of Directors may reasonably request, including, without
limitation, additional evidence of ownership. The Corporate Governance
Committee of the Board of Directors shall be entitled to establish
reasonable procedures relating to the conduct of such meeting
including, without limitation, the day, time and place of such meeting
and who shall be entitled to attend such meeting in addition to the
stockholders and non-management members of the Board of Directors. The
Chairman of the Corporate Governance Committee of the Board of
Directors shall serve as chairman of the meeting. Such meeting shall be
held at the expense of the corporation within 45 days after the later
of the receipt of the request therefor by the Corporate Governance
Committee or the receipt of any information reasonably requested by
such committee as set forth above. The directors at any such meeting
may, by resolution passed by a majority of such directors, make
recommendations to the entire
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Board of Directors. No meeting called pursuant to this Section 16 shall
be required to be held at any time within six months of any other
meeting called pursuant to this Section 16 or within three months of
any annual or special meeting of stockholders.
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Exhibit 99.1
[Harnischfeger Industries, Inc. Letterhead]
News Release
Contact:
David A. Brukardt
Director, Investor and Corporate Relations
(414) 486-6474
HARNISCHFEGER BOARD AMENDS BY-LAWS
Amendments Adopted Enhance Company's Corporate Governance and
Address Concerns Raised by the Trinity Group
Board Urges Shareholders to Oppose Trinity's
Consent Solicitation as Disruptive
MILWAUKEE -- April 23, 1999 -- Harnischfeger Industries, Inc. (NYSE: HPH) today
announced that its board of directors, after carefully reviewing the company's
corporate governance and each of the by-law amendments proposed by the Trinity
Group, has adopted amendments to Harnischfeger's by-laws designed to provide
shareholders a more direct and active voice in how Harnischfeger conducts its
business. The amendments, adopted by the board after careful consideration,
reflect much of what is contained in the Trinity proposals. Accordingly, the
board recommends that shareholders oppose the consent solicitation being
undertaken by the Trinity Group.
Prior to adopting these amendments, the board attempted to arrange a
meeting between Mr. Thomas M. Taylor of the Trinity Group and two Harnischfeger
independent directors to discuss the by-law amendments and other matters in an
effort to resolve the concerns of the Trinity Group. The board believes its
amendments address the Trinity Group's concerns in a meaningful way. The few
differences between Trinity's proposals and the board's amendments were
carefully considered and the board determined that the differences are
appropriate, reasonable, and in the best interests of Harnischfeger
shareholders. The board believes that termination of the Trinity consent
solicitation would best enable the company to pursue its announced initiatives
to enhance shareholder value without further disruption. After Mr. Taylor
refused to meet with the independent directors designated by the board, the
board adopted its by-law amendments and filed preliminary proxy materials in
opposition to the Trinity solicitation.
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Under the by-law amendments adopted by the Harnischfeger Industries board:
1. Shareholders will have an opportunity to approve significant
merger, joint-venture, or similar transactions of the company
or any of its subsidiaries of a size in excess of 25 percent
of the assets of the company and its subsidiaries, taken as a
whole. The Trinity Group's proposals would require that any
such transaction in excess of $100 million be put to a
shareholder vote. The Harnischfeger board believes that the
significance of a trasaction is more appropriately measured on
a relative basis rather than by a fixed-dollar amount and that
the 25-percent-of-assets threshold addresses shareholder
concerns without unduly compromising the company's
flexibility. To place this in context, Delaware law requires a
shareholder vote for mergers and similar transactions
involving the company and for the sale or disposition of "all
or substantially" all of the company's assets. In addition,
the company remains subject to the rules of the New York Stock
Exchange which require shareholder approval of transactions
involving the issuance of common shares representing 20
percent of the outstanding common shares before such issuance.
2. Rather than mandating the separation of the positions of
chairman and chief executive officer, the amendments provide
for an annual review of the issue by the Corporate Governance
Committee of the Harnischfeger board of directors. The board
would retain the flexibility to separate the chairman and
chief executive officer positions at any time it determines
that it is appropriate to do so. In contrast, a fixed rule
requiring separation of the positions could adversely impact
the company's ability to attract and retain qualified
personnel. The board also has taken additional steps to
highlight its independence and its accessibility to
shareholders. These include recognizing the chairman of the
Corporate
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Governance Committee as the lead member of the non-management
directors for purposes of executive sessions of the board
during which time the company's management is not present and
for dealing with communications between non-management
directors and shareholders. The board believes these changes
address the concerns that motivate seeking the separation of
the positions of chairman and chief executive officer without
locking the company into a governance structure that might not
be advantageous in all cases.
3. As proposed by the Trinity Group, shareholders holding 25
percent of Harnischfeger's outstanding stock will be able to
call a meeting between all shareholders of the company and
non-management directors. The principal difference between the
Trinity proposal and the amendment to the by-laws adopted by
the board is that under the amended by-laws, the Corporate
Governance Committee will oversee procedural matters related
to such meetings to ensure that they are orderly and
productive. In addition, reasonable time limits have been
placed on the ability of shareholders to call meetings under
the amended by-laws.
The board has set April 30, 1999 as the record date for the consent
solicitation of Harnischfeger shareholders.
Harnischfeger Chairman and Chief Executive Officer Jeffery T. Grade
said, "The board and management are committed to serving the best interests of
Harnischfeger and its shareholders. The by-law amendments adopted by the board
enhance Harnischfeger's corporate governance and address the concerns raised by
Trinity in a meaningful way. The few differences between Trinity's proposals and
the by-laws adopted by the board are appropriate, reasonable and in the best
interests of shareholders. It is unfortunate that the Trinity Group has refused
to terminate its consent solicitation, which is disruptive to the company's
stated objective of seeking alternatives to enhance shareholder value. Despite
Trinity's action, Harnischfeger is
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proceeding, assisted by Chase Securities, Inc., with the evaluation of
alternatives to enhance shareholder value. At the same time, Harnischfeger
continues to work with its bank group, led by The Chase Manhattan Bank, to seek
to provide additional liquidity for Harnischfeger's operations.
"While there is no assurance we will be successful in these efforts, we
are committing our best efforts to achieving these goals of enhanced value and
greater liquidity. We had hoped Trinity would join us constructively in this
regard. Instead Trinity has chosen to complicate matters," Grade said.
# # # # #
Harnischfeger Industries, Inc. [NYSE:HPH] is a global company with business
segments involved in the life-cycle management of equipment for underground
mining (Joy Mining Machinery), surface mining (P&H Mining Equipment), and pulp
and papermaking (Beloit Corporation).
All statements in this news release other than historical facts are
forward-looking statements which involve risks and uncertainties and which are
subject to change at any time. Such statements are based on management's
expectation at the time they are made. In addition to the assumptions and other
factors referred to in connection with the statements, factors set forth in the
company's latest Form 10-Q filed with the Securities and Exchange Commission,
among others, could cause actual results to differ materially from those
contemplated.
