SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 or 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended June 28, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 or 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from.............. to ...................
Commission file number 0-18110
GEHL COMPANY
(Exact name of registrant as specified in its charter)
Wisconsin 39-0300430
(State or other jurisdiction of incorporation (I.R.S.Employer
or organization) Identification No.)
143 Water Street, West Bend, WI 53095
(Address of principal executive office) (zip code)
(414) 334-9461
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes X No
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
Class Outstanding at June 28, 1997
Common Stock, $.10 Par Value 6,196,898
<PAGE>
GEHL COMPANY
FORM 10-Q
June 28, 1997
REPORT INDEX
Page No.
PART I. - FINANCIAL INFORMATION:
Condensed Consolidated Statements of Income for the
Three- and Six-Month Periods Ended June 28, 1997
and June 29, 1996 . . . . . . . . . . . . . . . . . . . . . . . . 3
Condensed Consolidated Balance Sheets at June 28, 1997,
December 31, 1996, and June 29, 1996 . . . . . . . . . . . . . . . 4
Condensed Consolidated Statements of Cash Flows for the
Six-Month Periods Ended June 28, 1997 and
June 29, 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Notes to Condensed Consolidated Financial Statements . . . . . . . . 6
Management's Discussion and Analysis of Results of Operations
and Financial Condition . . . . . . . . . . . . . . . . . . . . 8
PART II. - OTHER INFORMATION:
Item 4. Submission of Matters to a Vote of Security Holders . . . 11
Item 6. Exhibits and Reports on Form 8-K . . . . . . . . . . . . 11
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
<PAGE>
PART I - FINANCIAL INFORMATION
<TABLE>
GEHL COMPANY AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(in thousands, except per share data; unaudited)
<CAPTION>
Three Months Ended Six Months Ended
June 28, June 29, June 28, June 29,
1997 1996 1997 1996
<S> <C> <C> <C> <C>
NET SALES $ 51,592 $ 44,474 $ 95,267 $ 83,639
Cost of goods sold 36,045 31,122 66,737 59,271
-------- -------- -------- --------
GROSS PROFIT 15,547 13,352 28,530 24,368
Selling, general and
administrative expenses 8,951 8,608 17,783 16,641
-------- -------- -------- --------
INCOME FROM OPERATIONS 6,596 4,744 10,747 7,727
Interest expense (459) (1,056) (927) (2,097)
Interest income 339 399 661 808
Other expense, net (406) (409) (459) (461)
-------- -------- -------- --------
INCOME BEFORE INCOME TAXES 6,070 3,678 10,022 5,977
Income tax provision 2,185 745 3,608 1,148
-------- -------- -------- --------
NET INCOME $ 3,885 $ 2,933 $ 6,414 $ 4,829
========= ======== ========= ========
EARNINGS PER SHARE $ .60 $ .47 $ 1.00 $ .78
</TABLE>
The accompanying notes are an integral part of the financial statements.
<PAGE>
<TABLE>
GEHL COMPANY AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(in thousands)
<CAPTION>
June 28, December 31, June 29,
1997 1996 1996
ASSETS (Unaudited) (Unaudited)
<S> <C> <C> <C>
Cash $ 6,576 $ 4,208 $ 5,255
Accounts receivable-net 64,317 55,141 70,891
Finance contracts receivable-net 6,918 5,098 7,842
Inventories 17,579 18,642 18,791
Deferred tax asset 4,385 5,035 4,397
Prepaid expenses and other assets 1,391 1,624 1,347
---------- ---------- ----------
Total Current Assets 101,166 89,748 108,523
---------- ---------- ----------
Property, plant and equipment-net 23,521 21,678 20,620
Finance contracts receivable-net,
non-current 4,101 3,063 4,604
Other assets 5,424 5,636 5,415
---------- ---------- ---------
TOTAL ASSETS $ 134,212 $ 120,125 $ 139,162
========== ========== =========
LIABILITIES AND SHAREHOLDERS'EQUITY
Current portion of long-term debt
obligations $ 186 $ 178 $ 191
Accounts payable 18,917 14,384 13,192
Accrued liabilities 19,781 17,574 17,865
---------- --------- ---------
Total Current Liabilities 38,884 32,136 31,248
---------- --------- ---------
Line of credit facility 11,344 10,454 36,102
Long-term debt obligations 8,645 8,740 8,832
Other long-term liabilities 1,678 1,594 1,574
Deferred income taxes 2,369 2,369 1,425
---------- --------- ---------
Total Long-Term Liabilities 24,036 23,157 47,933
---------- --------- ---------
Common stock, $.10 par value,
25,000,000 shares authorized,
6,196,898, 6,158,720 and
6,143,289 shares outstanding,
respectively 620 616 614
Preferred stock, $.10 par value,
2,000,000 shares authorized,
250,000 shares designated as
Series A Preferred Stock,
no shares issued - - -
Capital in excess of par 26,197 26,155 26,061
Retained earnings 44,475 38,061 33,306
---------- --------- ---------
Total Shareholders' Equity 71,292 64,832 59,981
---------- --------- ---------
TOTAL LIABILITIES AND SHAREHOLDERS'
EQUITY $ 134,212 $ 120,125 $ 139,162
========== ========= =========
</TABLE>
The accompanying notes are an integral part of the financial statements.
<PAGE>
<TABLE>
GEHL COMPANY AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands; unaudited)
<CAPTION>
Six Months Ended
June 28, June 29,
1997 1996
CASH FLOWS FROM OPERATING ACTIVITIES:
<S> <C> <C>
Net Income $ 6,414 $ 4,829
Adjustments to reconcile net income to
net cash provided by operating activities:
Depreciation and amortization 1,418 1,346
Increase in finance contracts receivable (19,033) (20,038)
Proceeds from sales of finance contracts 15,913 14,651
Cost of sales of finance contracts 482 408
Net changes in remaining working capital
items (810) 3,679
------- -------
Net cash provided by operating activities 4,384 4,875
------- -------
CASH FLOWS FROM INVESTING ACTIVITIES:
Property, plant and equipment additions, net (3,182) (1,579)
Other assets 233 670
------- -------
Net cash (used for) investing activities (2,949) (909)
------- -------
CASH FLOWS FROM FINANCING ACTIVITIES:
(Decrease) increase in long-term debt
obligations (87) 8
Increase in long-term liabilities 84 288
Proceeds from (repayments of) credit facility 890 (1,746)
Treasury stock repurchase - (535)
Proceeds from issuance of common stock 239 8
Purchase of warrant (193) -
------- -------
Net cash provided by (used for)
financing activities 933 (1,977)
------- -------
Net increase in cash 2,368 1,989
Cash, beginning of period 4,208 3,266
------- -------
Cash, end of period $ 6,576 $ 5,255
======= =======
Supplemental disclosure of cash flow
information:
Cash paid for the following:
Interest $ 898 $ 2,081
Income taxes $ 2,251 $ 1,122
</TABLE>
The accompanying notes are an integral part of the financial statements.
<PAGE>
GEHL COMPANY AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
June 28, 1997
(Unaudited)
NOTE 1 - BASIS OF PRESENTATION
The condensed consolidated financial statements included herein
have been prepared by the Company, without audit, pursuant to the rules and
regulations of the Securities and Exchange Commission. Certain information
and footnote disclosures normally included in financial statements prepared
in accordance with generally accepted accounting principles have been
condensed or omitted pursuant to such rules and regulations, although
management believes that the disclosures are adequate to make the
information presented not misleading.
In the opinion of management, the information furnished for the three-
and six-month periods ended June 28, 1997 and June 29, 1996 includes all
adjustments, consisting only of normal recurring accruals, necessary for a
fair presentation of the results of operations and financial position of
the Company. The results of operations for the six months ended June 28,
1997 are not necessarily indicative of the results to be expected for the
entire year.
It is suggested that these interim financial statements be read in
conjunction with the financial statements and notes thereto included in the
Company's Annual Report on Form 10-K for the year ended December 31, 1996
as filed with the Securities and Exchange Commission. Certain
reclassifications have been made in the prior year condensed consolidated
financial statements to conform with the current year presentation.
NOTE 2 - EARNINGS PER SHARE
Earnings per share is computed by dividing net income by the
weighted average number of shares of common stock and, if applicable,
common stock equivalents which would arise from the exercise of stock
options and warrants. The weighted average number of shares used in the
computations was 6,479,316 and 6,228,153 for the three months ended June
28, 1997 and June 29, 1996, respectively, and 6,441,828 and 6,215,599 for
the six months ended June 28, 1997 and June 29, 1996, respectively.
NOTE 3 - INCOME TAXES
The income tax provision is determined by applying an estimated
annual effective income tax rate to income before income taxes. The
estimated annual effective income tax rate is based on the most recent
annualized forecast of pretax income, permanent book/tax differences, and
tax credits.
NOTE 4 - INVENTORIES
If all of the Company's inventories had been valued on a current
cost basis, which approximated FIFO value, estimated inventories by major
classification would have been as follows (in thousands):
June 28, December 31, June 29,
1997 1996 1996
Raw materials and
supplies $ 4,151 $ 3,547 $ 3,713
Work-in-process 10,146 9,120 7,907
Finished machines and parts 22,077 24,770 26,044
------- ------- -------
Total current cost value 36,374 37,437 37,664
Adjustments to LIFO basis (18,795) (18,795) (18,873)
------- ------- -------
$ 17,579 $ 18,642 $ 18,791
======= ======= =======
NOTE 5 - SHAREHOLDER RIGHTS PLAN
On May 28, 1997, the Board of Directors of the Company adopted a
Shareholder Rights Plan and declared a rights dividend of one preferred
share purchase right (Right) for each share of common stock outstanding on
June 16, 1997, and provided that one Right would be issued with each share
of common stock thereafter issued. The Shareholder Rights Plan provides
that in the event a person or group acquires or seeks to acquire 15% or
more of the outstanding common stock of the Company, the Rights, subject to
certain limitations, will become exercisable. Each Right once exercisable
initially entitles the holder thereof (other than the acquiring person
whose rights are cancelled) to purchase from the Company one one-hundredth
of a share of Series A preferred stock at an initial exercise price of $55
per one one-hundredth of a share (subject to adjustment), or, upon the
occurrence of certain events, common stock of the Company or common stock
of an "acquiring company" having a market value equivalent to two times the
exercise price. Subject to certain conditions, the Rights are redeemable
by the Board of Directors for $.01 per Right and are exchangeable for
shares of common stock. The Rights have no voting power and expire on May
28, 2007.
NOTE 6 - ACCOUNTING PRONOUNCEMENTS
The Financial Accounting Standards Board (FASB) has issued
Statement of Financial Accounting Standards No. 128, "Earnings per Share"
(SFAS 128). SFAS 128 replaces primary EPS with basic EPS, which excludes
dilution, and requires presentation of both basic and diluted EPS on the
face of the income statement. Diluted EPS is computed similarly to the
current fully diluted EPS. SFAS 128 is effective for financial statements
issued for periods ending after December 15, 1997, and requires restatement
of all prior-period EPS data presented. The adoption of this statement is
not expected to materially affect either future or prior-period EPS.
The FASB has also issued SFAS No. 130, "Reporting Comprehensive
Income" and SFAS No. 131, "Disclosures about Segments of an Enterprise and
Related Information". These statements are both effective for periods
beginning after December 15, 1997. The adoption of these statements is not
expected to affect the Company's financial condition or results of
operations as they are disclosure only pronouncements.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND FINANCIAL
CONDITION
Results of Operations
Three Months Ended June 28, 1997 Compared to Three Months Ended June 29,
1996
Net sales for the second quarter of 1997 were $51.6 million, 16%
higher than the $44.5 million in the comparable period of 1996. Gehl
Construction's net sales increased 31% to $25.4 million in the second
quarter of 1997 from $19.4 million in the second quarter of 1996. The Gehl
Construction increase resulted from continued strong demand for the
Company's products, particularly rough-terrain telescopic forklifts and
skid loaders. Gehl Agriculture's net sales increased 4% to $26.2 million
in the second quarter of 1997 from $25.1 million in the second quarter of
1996. The increase was due primarily to an increase in shipments of forage
harvesting equipment, manure handling equipment and skid loaders.
Gross profit increased $2.2 million, or 16%, during the second
quarter of 1997 versus the comparable period of 1996, due primarily to
increased sales volume. Gross profit as a percent of net sales increased
to 30.1% for the second quarter of 1997 from 30.0% in the comparable period
of 1996. The shift in product mix of sales to Gehl Construction resulted
in the overall Company increase in gross profit as a percent of net sales.
Gross profit as a percent of net sales for Gehl Construction decreased to
32.2% in the second quarter of 1997 from 32.3% for the second quarter of
1996. Gross profit as a percent of net sales for Gehl Agriculture
decreased to 28.2% in the second quarter of 1997 from 28.3% for the second
quarter of 1996.
Selling, general and administrative expenses increased $343,000,
or 4%, during the second quarter of 1997 versus the comparable period of
1996. The Company's continued concentration on cost containment resulted
in selling, general and administrative expenses decreasing to 17.3% of net
sales during the second quarter of 1997 versus 19.4% in the comparable
period of 1996.
Income from operations in the second quarter of 1997 of $6.6
million was 39% higher than the $4.7 million in the second quarter of 1996.
Interest expense decreased $597,000, or 57%, to $459,000 in the
second quarter of 1997 from $1.1 million in the second quarter of 1996.
The decrease was a result of a reduction in average debt outstanding to
$23.8 million in the second quarter of 1997 versus $49.9 million in the
second quarter of 1996, combined with a decrease in the average rate of
interest paid by the Company to approximately 8.0% in the second quarter of
1997 from 8.3% in the comparable period of 1996. The decrease in the
average debt outstanding was primarily the result of cash flow generated
from reduced accounts receivable and inventory levels and increased
shareholders' equity over the past twelve months.
The Company's effective income tax rate was 36% for the second
quarter of 1997 versus 20.3% for the second quarter of 1996.
Six Months Ended June 28, 1997 Compared to Six Months Ended June 29, 1996
Net sales for the first six months of 1997 were $95.3 million,
$11.7 million, or 14%, higher than the $83.6 million in the comparable
period of 1996. Gehl Construction's net sales increased 27% to $46.2
million in the first six months of 1997 from $36.4 million in the first six
months of 1996. The Gehl Construction increase resulted from increased
demand for the Company's products, particularly rough-terrain telescopic
forklifts and skid loaders. Gehl Agriculture's net sales increased 4% to
$49.1 million in the first six months of 1997 from $47.2 in the first six
months of 1996. Of the Company's total net sales reported for the first
six months of 1997, $16.4 million represented sales made outside of the
United States.
Gross profit increased $4.2 million, or 17%, during the first six
months of 1997 versus the comparable period of 1996, primarily due to the
increased sales volume. Gross profit as a percent of net sales increased
to 29.9% for the first six months of 1997 from 29.1% in the comparable
period of 1996. The shift in product mix of sales to Gehl Construction
resulted in the overall Company increase in gross profit as a percent of
net sales. Gross profit as a percent of net sales for Gehl Construction
decreased to 31.5% in the first six months of 1997 from 32.0% in the first
six months of 1996. The primary reasons for the decrease were a shift in
mix of product shipments and a competitive pricing environment in which
price increases have not kept pace with cost increases. Gross profit as a
percent of net sales for Gehl Agriculture increased to 28.5% for the first
six months of 1997 from 26.9% for the first six months of 1996. The
primary reasons for the increase were: 1) reduced product costs due to
higher overhead absorption associated with increased levels of production,
2) export sales, typically made at a lower gross margin than domestic
sales, constituting a smaller portion of the shipments in 1997 than in
1996, and 3) the impact of a change in the mix of products shipped in 1997
versus products shipped in comparable 1996.
Selling, general and administrative expenses increased $1.1
million, or 7%, during the first six months of 1997 versus the comparable
period of 1996. The increase in spending is at a lower rate than the
increase in sales due to the Company's commitment to containing costs. As
a percent of net sales, selling, general and administrative expenses
decreased to 18.7% during the first six months of 1997 versus 19.9% in the
comparable period of 1996.
Income from operations in the first six months of 1997 of $10.7
million was 39% higher than the $7.7 million for the comparable period of
1996.
Interest expense decreased $1.2 million, or 56%, to $927,000 in
the first six months of 1997 from $2.1 million in the first six months of
1996. The decrease was a result of a reduction in average debt outstanding
to $23.0 million in the first six months of 1997 versus $49.8 million in
the comparable period of 1996, combined with a decrease in the average rate
of interest paid by the Company to approximately 8.0% in the first six
months of 1997 from 8.2% in the comparable period of 1996. The decrease in
the average debt outstanding was primarily the result of cash flow
generated from reduced accounts receivable levels and increased
shareholders' equity over the past twelve months.
Interest income decreased $147,000, or 18%, to $661,000 for the
first six months of 1997 from $808,000 in the comparable period of 1996 due
primarily to reduced interest income earned on floor plan wholesale
receivables and retail finance receivables.
The Company's effective income tax rate was 36.0% for the first
six months of 1997 versus 19.2% for the first six months of 1996.
Financial Condition
The Company's working capital was $62.3 million at June 28, 1997,
as compared to $57.6 million at December 31, 1996, and $77.3 million at
June 29, 1996. The increase since December 31, 1996 resulted primarily
from seasonal increases in accounts receivable. The decrease since June
29, 1996 was due primarily to a reduction in accounts receivable and
increases in accounts payable.
Capital expenditures for property, plant and equipment during the
first six months of 1997 were approximately $3.2 million. The Company
plans to make approximately $8.0 million of capital expenditures in 1997,
including $4.0 million to expand its two South Dakota manufacturing
facilities and add equipment necessary to increase production levels of
skid loaders, rough-terrain telescopic forklifts and paving products.
Outstanding commitments as of June 28, 1997 totaled approximately $2.1
million, including $1.5 million related to the aforementioned plant
expansion projects.
As of June 28, 1997, the weighted average interest rate paid by
the Company on outstanding borrowings under its line of credit facility was
7.0%. The Company had available unused borrowing capacity of $53.0
million, $45.4 million, and $36.6 million under the line of credit facility
at June 28, 1997, December 31, 1996, and June 29, 1996, respectively. At
June 28, 1997, December 31, 1996, and June 29, 1996, the borrowings
outstanding under the line of credit facility were $11.3 million, $10.5
million and $36.1 million, respectively.
The sale of finance contracts is an important component of the
Company's overall liquidity. Gehl has arrangements with several financial
institutions and financial service companies to sell, with recourse, its
finance contracts receivable. The Company continues to service all
contracts whether or not sold. At June 28, 1997, Gehl serviced $64.3
million of such contracts, of which $52.6 million were owned by other
parties. The Company believes that it has sufficient capacity to sell its
retail finance contracts for the foreseeable future.
Shareholders' equity at June 28, 1997 was $71.3 million. This
amount was $11.3 million higher than the $60.0 million of shareholders'
equity at June 29, 1996, due primarily to income earned from June 30, 1996
through June 28, 1997. During the second quarter, the Company reacquired
previously issued warrants to purchase 50,000 shares of it's common stock.
Warrants to purchase 130,000 shares of the Company's common stock remain
outstanding.
<PAGE>
PART II - OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders.
At the Company's annual meeting of shareholders held on April 16,
1997, John W. Findley, John W. Gehl and Arthur W. Nesbitt were elected as
directors of the Company for terms expiring in 2000. The following table
sets forth certain information with respect to the election of directors at
the annual meeting:
Shares Withholding
Name of Nominee Shares Voted For Authority
John W. Findley 5,526,320 38,251
John W. Gehl 5,527,445 37,126
Arthur W. Nesbitt 5,527,270 37,301
The following table sets forth the other directors of the Company
whose terms of office continued after the 1997 annual meeting:
Year in Which
Name of Director Term Expires
Fred M. Butler 1998
William D. Gehl 1998
John W. Splude 1998
Thomas J. Boldt 1999
William P. Killian 1999
Roger E. Secrist 1999
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits
3.1 Articles of Amendment to the Restated Articles of
Incorporation of Gehl Company
3.2 Restated Articles of Incorporation, as amended, of Gehl
Company
4.1 Rights Agreement, dated as of May 28, 1997, between Gehl
Company and Firstar Trust Company. [Incorporated by
reference to Exhibit (4.1) to Gehl Company's Registration
Statement on Form 8-A, dated as of May 28, 1997 (Commission
File No. 0-18110)]
27 Financial Data Schedule [included in the EDGAR filing only]
(b) Reports on Form 8-K
A Current Report on Form 8-K, dated May 28, 1997, reporting under
Item 5 "Other Events" the adoption of a Shareholder Rights Plan
was filed with the Securities and Exchange Commission.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
GEHL COMPANY
Date: August 7, 1997 By: /s/ William D. Gehl
William D. Gehl
Chairman of the Board, President
and Chief Executive Officer
Date: August 7, 1997 By: /s/ Kenneth P. Hahn
Kenneth P. Hahn
Vice President of Finance and
Treasurer (Principal Financial
and Accounting Officer)
<PAGE>
GEHL COMPANY
FORM 10-Q
June 28, 1997
EXHIBIT INDEX
Exhibit
No. Document Description
3.1 Articles of Amendment to the Restated Articles of Incorporation of
Gehl Company
3.2 Restated Articles of Incorporation, as amended, of Gehl Company
4.1 Rights Agreement, dated as of May 28, 1997, between Gehl Company and
Firstar Trust Company. [Incorporated by reference to Exhibit (4.1) to
Gehl Company's Registration Statement on Form 8-A, dated as of May 28,
1997 (Commission File No. 0-18110)]
27 Financial Data Schedule [included in the EDGAR filing only]<PAGE>
ARTICLES OF AMENDMENT
relating to
SERIES A PREFERRED STOCK
of
GEHL COMPANY
Pursuant to Sections 180.0602 and 180.1002
of the Wisconsin Business Corporation Law
I, Michael J. Mulcahy, Vice President, Secretary and General
Counsel of Gehl Company, a corporation organized and existing under the
Wisconsin Business Corporation Law (the "Corporation"), in accordance with
the provisions of Sections 180.0602 and 180.1002 thereof, DO HEREBY CERTIFY
THAT:
A. Pursuant to the authority conferred upon the Board of
Directors of the Corporation by its Restated Articles of Incorporation and
in accordance with Sections 180.0602 and 180.1002 of the Wisconsin Business
Corporation Law, said Board of Directors adopted resolutions on May 28,
1997, creating a series of shares of Preferred Stock, $.10 par value, of
the Corporation, designated as Series A Preferred Stock.
B. Said resolutions of the Board of Directors of the
Corporation creating the series designated as Series A Preferred Stock
provide that said series shall have such designation and number of shares
and such preferences, limitations and relative rights as are set forth in
the paragraph below, which paragraph shall constitute Paragraph (5) of
Section A of Article III of the Corporation's Restated Articles of
Incorporation:
(5) Series A Preferred Stock.
(i) Designation and Amount. There is hereby created a
series of Preferred Stock which shall be designated as "Series A
Preferred Stock" (the "Series A Preferred Stock"); the number of
shares constituting such series shall be Two Hundred Fifty
Thousand (250,000). Such number of shares may be increased or
decreased by resolution of the Board of Directors; provided, that
no decrease shall reduce the number of shares of Series A
Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon
the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the
corporation into Series A Preferred Stock.
(ii) Dividends and Distributions.
(a) The holders of shares of Series A Preferred
Stock, in preference to the holders of Common Stock and
of any other junior stock, shall be entitled to
receive, when, as and if declared by the Board of
Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the
first business days of January, April, July and October
in each year (each such date being referred to herein
as a "Quarterly Dividend Payment Date"), commencing on
the first Quarterly Dividend Payment Date after the
first issuance of a share or fraction of a share of
Series A Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of
(a) $1.00 or (b) subject to the provision for
adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and
100 times the aggregate per share amount (payable in
kind) of all noncash dividends or other distributions,
other than a dividend payable in shares of Common Stock
or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on
the Common Stock since the immediately preceding
Quarterly Dividend Payment Date, or, with respect to
the first Quarterly Payment Date, since the first
issuance of any share or fraction of a share of Series
A Preferred Stock. In the event the corporation shall
at any time after May 28, 1997 (the "Rights Declaration
Date") (i) declare any dividend on Common Stock payable
in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of
shares, then in each such case the amount to which
holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under clause
(b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock that are
outstanding immediately after such event and the
denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such
event.
(b) The corporation shall declare a dividend or
distribution on the Series A Preferred Stock as
provided in paragraph (a) above immediately after it
declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common
Stock); provided that, in the event no dividend or
distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $1.00 per share on the
Series A Preferred Stock shall nevertheless be payable
on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series A Preferred
Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A
Preferred Stock, unless the date of issue of such
shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the
date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date
after the record date for the determination of holders
of shares of Series A Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from
such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Preferred Stock in an
amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all
such shares at the time outstanding. The Board of
Directors may fix a record date for the determination
of holders of shares of Series A Preferred Stock
entitled to receive payment of a dividend or
distribution declared thereon, which record date shall
be no more than 30 days prior to the date fixed for the
payment thereof.
(iii) Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(a) Subject to the provision for adjustment
hereinafter set forth, each share of Series A Preferred
Stock shall entitle the holder thereof to 100 votes on
all matters submitted to a vote of the shareholders of
the corporation. In the event the corporation shall at
any time declare or pay any dividend on Common Stock
payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the number of
votes per share to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such
event shall be adjusted by multiplying such number by a
fraction the numerator of which is the number of shares
of Common Stock that are outstanding immediately after
such event and the denominator of which is the number
of shares of Common Stock that were outstanding
immediately prior to such event.
(b) Except as otherwise provided herein, in any
other resolution of the Board of Directors creating a
series of Preferred Stock or any similar stock, or by
law, the holders of shares of Series A Preferred Stock
and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a
vote of shareholders of the corporation.
(c) Except as set forth herein, holders of
Series A Preferred Stock shall have no special voting
rights and their consent shall not be required (except
to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any
corporate action.
(iv) Certain Restrictions.
(a) Whenever quarterly dividends or other
dividends or distributions payable on the Series A
Preferred Stock as provided in subparagraph (ii) are in
arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared,
on shares of Series A Preferred Stock outstanding shall
have been paid in full, the corporation shall not:
(1) declare or pay dividends on, make
any other distributions on, or
redeem or purchase or otherwise
acquire for consideration any
shares of stock ranking junior
(either as to dividends or upon
liquidation, dissolution or winding
up) to the Series A Preferred
Stock;
(2) declare or pay dividends on or make
any other distributions on any
shares of stock ranking on a parity
(either as to dividends or upon
liquidation, dissolution or winding
up) with the Series A Preferred
Stock, except dividends paid
ratably on the Series A Preferred
Stock and all such parity stock on
which dividends are payable or in
arrears in proportion to the total
amounts to which the holders of all
such shares are then entitled;
(3) redeem or purchase or otherwise
acquire for consideration shares of
any stock ranking on a parity
(either as to dividends or upon
liquidation, dissolution or winding
up) with the Series A Preferred
Stock, provided that the
corporation may at any time redeem,
purchase or otherwise acquire
shares of any such parity stock in
exchange for shares of any stock of
the corporation ranking junior to
or on a parity with (both as to
dividends or upon dissolution,
liquidation or winding up) the
Series A Preferred Stock; or
(4) purchase or otherwise acquire for
consideration any shares of
Series A Preferred Stock, or any
shares of stock ranking on a parity
with the Series A Preferred Stock,
except in accordance with a
purchase offer made in writing or
by publication (as determined by
the Board of Directors) to all
holders of such shares upon such
terms as the Board of Directors,
after consideration of the
respective annual dividend rates
and other relative rights and
preferences of the respective
series and classes, shall determine
in good faith will result in fair
and equitable treatment among the
respective series or classes.
(b) The corporation shall not permit any
corporation of which an amount of voting securities
sufficient to elect at least a majority of the
directors of such corporation is beneficially owned,
directly or indirectly, by the corporation or otherwise
controlled by the corporation to purchase or otherwise
acquire for consideration any shares of stock of the
corporation unless the corporation could, under
paragraph (a) of this subparagraph (iv), purchase or
otherwise acquire such shares at such time and in such
manner.
(v) Reacquired Shares. All shares of Series A Preferred
Stock that shall at any time have been reacquired by the
corporation shall, after such reacquisition, have the status of
authorized but unissued shares of Preferred Stock of the
corporation, without designation as to series, and may be
reissued as part of a new series of Preferred Stock, to be
created by resolution or resolutions of the Board of Directors,
subject to the conditions and restrictions on issuance set forth
herein.
(vi) Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the corporation, no
distribution shall be made (a) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock
unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $100 per share, plus an
amount equal to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such payment,
provided that the holders of shares of Series A Preferred Stock
shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth,
equal to 100 times the aggregate amount to be distributed per
share to holders of shares of Common Stock, or (b) to the holders
of shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except distributions made ratably on the Series
A Preferred Stock and all other such parity stock in proportion
to the total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up. In
the event the corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the aggregate amount to which holders of
shares of Series A Preferred Stock were entitled immediately
prior to such event under the proviso in clause (a) of the
preceding sentence shall be adjusted by multiplying such amount
by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(vii) Consolidation, Merger, etc. In case the
corporation shall enter into any consolidation, merger,
combination, share exchange or other transaction in which the
shares of Common Stock are exchanged for or changed into other
stock or securities, cash and/or any other property, then in any
such case the shares of Series A Preferred Stock shall at the
same time be similarly exchanged or changed in an amount per
share (subject to the provision for adjustment hereinafter set
forth) equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as
the case may be, into which or for which each share of Common
Stock is changed or exchanged. In the event the corporation
shall at any time after the Rights Declaration Date (a) declare
any dividend on Common Stock payable in shares of Common Stock,
(b) subdivide the outstanding Common Stock, or (c) combine the
outstanding Common Stock into a smaller number of shares, then in
each such case the amount set forth in the preceding sentence
with respect to the exchange or change of shares of Series A
Preferred Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common
Stock that are outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(viii) No Redemption. The shares of Series A Preferred
Stock shall not be redeemable.
(ix) Amendment. To the fullest extent permitted by
applicable law, prior to such time as shares of Series A
Preferred Stock are issued and outstanding, the Board of
Directors may alter or revoke any of the number of shares of
Series A Preferred Stock, the powers, preferences or special
rights of the Series A Preferred Stock or the other terms of the
Series A Preferred Stock. From and after such time as shares of
Series A Preferred Stock are issued and outstanding, the Restated
Articles of Incorporation of the corporation shall not be amended
in any manner that would materially alter or change the powers,
preferences or special rights of the Series A Preferred Stock so
as to affect them adversely without the affirmative vote of the
holders of at least two-thirds of the outstanding shares of
Series A Preferred Stock, voting together as a single class.
(x) Fractional Shares. Series A Preferred Stock may be
issued in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting
rights, receive dividends, participate in distributions and to
have the benefit of all other rights of holders of Series A
Preferred Stock.
C. None of the shares of Series A Preferred Stock have been
issued as of the date hereof.
D. The amendment creating the Series A Preferred Stock was
adopted by the Board of Directors of the Corporation in accordance with
Section 180.1002 of the Wisconsin Business Corporation Law, and shareholder
action was not required.
IN WITNESS WHEREOF, the undersigned has executed and subscribed
these Articles of Amendment on behalf of the Corporation and does affirm
the foregoing as true this 28th day of May, 1997.
By: /s/ Michael J. Mulcahy
Michael J. Mulcahy
Vice President, Secretary and General
Counsel
5/28/97
RESTATED ARTICLES OF INCORPORATION
OF GEHL COMPANY, AS AMENDED
Pursuant to the provisions of Chapter 180 of the Wisconsin
Statutes, these Restated Articles of Incorporation shall supersede and take
the place of the corporation's heretofore existing Restated Articles of
Incorporation and all amendments thereto:
ARTICLE I
NAME
The name of the corporation is "GEHL COMPANY"
ARTICLE II
PURPOSE
The purposes for which the corporation is organized are to engage
in any lawful activity within the purposes for which corporations may be
organized under the Wisconsin Business Corporation Law, Chapter 180,
Wisconsin Statutes, including (without by this specification limiting the
generality of the foregoing) the manufacturing, acquiring, holding,
pledging, disposing of and dealing in all kinds of property, whether real,
personal or mixed, and whether tangible or intangible and particularly
agricultural machinery and equipment.
ARTICLE III
AUTHORIZED SHARES
The aggregate number of shares which the corporation shall have
the authority to issue shall be twenty-seven million (27,000,000) shares,
consisting of: (i) twenty-five million (25,000,000) shares of a class
designated as "Common Stock," with a par value of $.10 per share; and (ii)
two million (2,000,000) shares of a class designated as "Preferred Stock,"
with a par value of $.10 per share. Each issued and outstanding share of
Common Stock, $2.00 par value, shall upon the effective date of these
Restated Articles of Incorporation be reclassified into five (5) shares of
Common Stock, $.10 par value.
The designation, relative rights, preferences and limitations of
the shares of each class and the authority of the Board of Directors of the
corporation to establish and to designate series of the Preferred Stock and
to fix the variations in the relative rights, preferences and limitations
as between such series, shall be as set forth herein.
A. PREFERRED STOCK.
(1) Series and Variations Between Series. The Board of
Directors of the corporation is authorized, subject to limitations
prescribed by law and the provisions of this section A, to provide for the
issuance of the Preferred Stock in series, to establish or change the
number of shares to be included in each such series and to fix the
designation, relative rights, preferences and limitations of the shares of
each such series. The authority of the Board of Directors of the
corporation with respect to each series shall include, but not be limited
to, determination of the following:
(i) The number of shares constituting that series and the
distinctive designation of that series;
(ii) The dividend rate or rates on the shares of that series
and/or the method of determining such rate or rates and the timing of
dividend payments on the shares of such series;
(iii) Whether and to what extent the shares of that series
shall have voting rights in addition to the voting rights provided by
law, which might include the right to elect a specified number of
directors in any case or if dividends on such series were not paid for
a specified period of time;
(iv) Whether the shares of that series shall be convertible into
shares of Common Stock or shares of any other series of Preferred
Stock, and, if so, the terms and conditions of such conversion,
including the price or prices or the rate or rates of conversion and
the terms of adjustment thereof;
(v) Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such redemption,
including the date or dates upon or after which they shall be
redeemable and the amount per share payable in case of redemption,
which amount may vary under different conditions and at different
redemption dates;
(vi) The rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
corporation;
(vii) The obligation, if any, of the corporation to retire
shares of that series pursuant to a sinking fund; and
(viii) Any other relative rights, preferences and limitations of
that series.
Subject to the designations, relative rights, preferences and
limitations provided pursuant to this section A, each share of Preferred
Stock shall be of equal rank with each other share of Preferred Stock.
(2) Dividends. Before any dividends shall be paid or set apart
for payment upon shares of Common Stock, the holders of each series of
Preferred Stock shall be entitled to receive dividends at the rate per
annum and at such times as specified in the particular series. Dividends
on shares of Preferred Stock shall be paid out of any funds legally
available for the payment of such dividends, when and if declared by the
Board of Directors. Such dividends shall accumulate on each share of
Preferred Stock from the date of issuance. All dividends on shares of
Preferred Stock shall be cumulative so that if the corporation shall not
pay, on a timely basis, the specified dividend, or any part thereof, on the
shares of Preferred Stock then issued and outstanding, such deficiency
shall thereafter be fully paid, but without interest, before any dividend
shall be paid or set apart for payment on the Common Stock.
Any dividend paid upon the Preferred Stock at a time when any
accumulated dividends for any prior period are delinquent shall be
expressly declared as a dividend in whole or partial payment of the
accumulated dividend for the earliest dividend period for which dividends
are then delinquent, and shall be so designated to each shareholder to whom
payment is made. All shares of Preferred Stock shall rank equally and
shall share ratably, in proportion to the rate of dividend of the series,
in all dividends paid or set aside for payment for any dividend period or
part thereof upon any such shares.
Except to the limited extent hereinafter provided, so long as any
shares of Preferred Stock shall be outstanding, no dividend, whether in
cash, stock or otherwise, shall be paid or declared nor shall any
distribution be made on the Common Stock, nor shall any Common Stock be
purchased, redeemed or otherwise acquired for value by the corporation, nor
shall any moneys be paid to or set aside or made available for a sinking
fund for the purchase or redemption of any Common Stock, unless:
(i) All dividends on the Preferred Stock of all series for all
past dividend periods shall have been paid or shall have been declared
and a sum sufficient for the payment thereof set apart; and
(ii) The corporation shall have set aside all amounts theretofore
required to be set aside as and for all sinking fund accounts, if any,
for the redemption or purchase of all series of Preferred Stock for
all past sinking fund payment periods or dates.
The foregoing provisions shall not, however, apply to, or in any way
restrict (x) any acquisition of Common Stock in exchange solely for Common
Stock; (y) the acquisition of Common Stock through application of the
proceeds of the sale of Common Stock; or (z) stock dividends or
distributions payable only in shares of stock having rights and preferences
subordinate to the Preferred Stock.
(3) Liquidation, Dissolution or Winding Up. In case of
voluntary or involuntary liquidation, dissolution or winding up of the
corporation, the holders of shares or each series of Preferred Stock shall
be entitled to receive out of the assets of the corporation in money or
money's worth the amount specified in the particular series for each share
at the time outstanding together with all accrued but unpaid dividends
thereon, before any of such assets shall be paid or distributed to holder
of Common Stock. In case of the voluntary or involuntary liquidation,
dissolution or winding up of the corporation, if the assets of the
corporation shall be insufficient to pay the holders of all shares of
Preferred Stock then outstanding the entire amounts to which they may be
entitled, the holders of shares of each outstanding series of Preferred
Stock shall share ratably in such assets in proportion to the respective
amounts payable in liquidation.
(4) Voting Rights. The holders of Preferred Stock shall have
only such voting rights as are fixed for shares of each series by the Board
of Directors pursuant to this section A or are provided by law.
(5) Series A Preferred Stock.
(i) Designation and Amount. There is hereby created a
series of Preferred Stock which shall be designated as "Series A
Preferred Stock" (the "Series A Preferred Stock"); the number of
shares constituting such series shall be Two Hundred Fifty
Thousand (250,000). Such number of shares may be increased or
decreased by resolution of the Board of Directors; provided, that
no decrease shall reduce the number of shares of Series A
Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon
the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the
corporation into Series A Preferred Stock.
(ii) Dividends and Distributions.
(a) The holders of shares of Series A Preferred
Stock, in preference to the holders of Common Stock and
of any other junior stock, shall be entitled to
receive, when, as and if declared by the Board of
Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the
first business days of January, April, July and October
in each year (each such date being referred to herein
as a "Quarterly Dividend Payment Date"), commencing on
the first Quarterly Dividend Payment Date after the
first issuance of a share or fraction of a share of
Series A Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of
(a) $1.00 or (b) subject to the provision for
adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and
100 times the aggregate per share amount (payable in
kind) of all noncash dividends or other distributions,
other than a dividend payable in shares of Common Stock
or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on
the Common Stock since the immediately preceding
Quarterly Dividend Payment Date, or, with respect to
the first Quarterly Payment Date, since the first
issuance of any share or fraction of a share of
Series A Preferred Stock. In the event the corporation
shall at any time after May 28, 1997 (the "Rights
Declaration Date") (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide
the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of
shares, then in each such case the amount to which
holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under clause
(b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock that are
outstanding immediately after such event and the
denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such
event.
(b) The corporation shall declare a dividend or
distribution on the Series A Preferred Stock as
provided in paragraph (a) above immediately after it
declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common
Stock); provided that, in the event no dividend or
distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $1.00 per share on the
Series A Preferred Stock shall nevertheless be payable
on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series A Preferred
Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A
Preferred Stock, unless the date of issue of such
shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the
date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date
after the record date for the determination of holders
of shares of Series A Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from
such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Preferred Stock in an
amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all
such shares at the time outstanding. The Board of
Directors may fix a record date for the determination
of holders of shares of Series A Preferred Stock
entitled to receive payment of a dividend or
distribution declared thereon, which record date shall
be no more than 30 days prior to the date fixed for the
payment thereof.
(iii) Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(a) Subject to the provision for adjustment
hereinafter set forth, each share of Series A Preferred
Stock shall entitle the holder thereof to 100 votes on
all matters submitted to a vote of the shareholders of
the corporation. In the event the corporation shall at
any time declare or pay any dividend on Common Stock
payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the number of
votes per share to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such
event shall be adjusted by multiplying such number by a
fraction the numerator of which is the number of shares
of Common Stock that are outstanding immediately after
such event and the denominator of which is the number
of shares of Common Stock that were outstanding
immediately prior to such event.
(b) Except as otherwise provided herein, in any
other resolution of the Board of Directors creating a
series of Preferred Stock or any similar stock, or by
law, the holders of shares of Series A Preferred Stock
and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a
vote of shareholders of the corporation.
(c) Except as set forth herein, holders of
Series A Preferred Stock shall have no special voting
rights and their consent shall not be required (except
to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any
corporate action.
(iv) Certain Restrictions.
(a) Whenever quarterly dividends or other
dividends or distributions payable on the Series A
Preferred Stock as provided in subparagraph (ii) are in
arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared,
on shares of Series A Preferred Stock outstanding shall
have been paid in full, the corporation shall not:
(1) declare or pay dividends on, make
any other distributions on, or
redeem or purchase or otherwise
acquire for consideration any
shares of stock ranking junior
(either as to dividends or upon
liquidation, dissolution or winding
up) to the Series A Preferred
Stock;
(2) declare or pay dividends on or make
any other distributions on any
shares of stock ranking on a parity
(either as to dividends or upon
liquidation, dissolution or winding
up) with the Series A Preferred
Stock, except dividends paid
ratably on the Series A Preferred
Stock and all such parity stock on
which dividends are payable or in
arrears in proportion to the total
amounts to which the holders of all
such shares are then entitled;
(3) redeem or purchase or otherwise
acquire for consideration shares of
any stock ranking on a parity
(either as to dividends or upon
liquidation, dissolution or winding
up) with the Series A Preferred
Stock, provided that the
corporation may at any time redeem,
purchase or otherwise acquire
shares of any such parity stock in
exchange for shares of any stock of
the corporation ranking junior to
or on a parity with (both as to
dividends or upon dissolution,
liquidation or winding up) the
Series A Preferred Stock; or
(4) purchase or otherwise acquire for
consideration any shares of
Series A Preferred Stock, or any
shares of stock ranking on a parity
with the Series A Preferred Stock,
except in accordance with a
purchase offer made in writing or
by publication (as determined by
the Board of Directors) to all
holders of such shares upon such
terms as the Board of Directors,
after consideration of the
respective annual dividend rates
and other relative rights and
preferences of the respective
series and classes, shall determine
in good faith will result in fair
and equitable treatment among the
respective series or classes.
(b) The corporation shall not permit any
corporation of which an amount of voting securities
sufficient to elect at least a majority of the
directors of such corporation is beneficially owned,
directly or indirectly, by the corporation or otherwise
controlled by the corporation to purchase or otherwise
acquire for consideration any shares of stock of the
corporation unless the corporation could, under
paragraph (a) of this subparagraph (iv), purchase or
otherwise acquire such shares at such time and in such
manner.
(v) Reacquired Shares. All shares of Series A Preferred
Stock that shall at any time have been reacquired by the
corporation shall, after such reacquisition, have the status of
authorized but unissued shares of Preferred Stock of the
corporation, without designation as to series, and may be
reissued as part of a new series of Preferred Stock, to be
created by resolution or resolutions of the Board of Directors,
subject to the conditions and restrictions on issuance set forth
herein.
(vi) Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the corporation, no
distribution shall be made (a) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock
unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $100 per share, plus an
amount equal to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such payment,
provided that the holders of shares of Series A Preferred Stock
shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth,
equal to 100 times the aggregate amount to be distributed per
share to holders of shares of Common Stock, or (b) to the holders
of shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except distributions made ratably on the
Series A Preferred Stock and all other such parity stock in
proportion to the total amounts to which the holders of all such
shares are entitled upon such liquidation, dissolution or winding
up. In the event the corporation shall at any time declare or
pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the aggregate amount to which holders of
shares of Series A Preferred Stock were entitled immediately
prior to such event under the proviso in clause (a) of the
preceding sentence shall be adjusted by multiplying such amount
by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(vii) Consolidation, Merger, etc. In case the
corporation shall enter into any consolidation, merger,
combination, share exchange or other transaction in which the
shares of Common Stock are exchanged for or changed into other
stock or securities, cash and/or any other property, then in any
such case the shares of Series A Preferred Stock shall at the
same time be similarly exchanged or changed in an amount per
share (subject to the provision for adjustment hereinafter set
forth) equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as
the case may be, into which or for which each share of Common
Stock is changed or exchanged. In the event the corporation
shall at any time after the Rights Declaration Date (a) declare
any dividend on Common Stock payable in shares of Common Stock,
(b) subdivide the outstanding Common Stock, or (c) combine the
outstanding Common Stock into a smaller number of shares, then in
each such case the amount set forth in the preceding sentence
with respect to the exchange or change of shares of Series A
Preferred Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common
Stock that are outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(viii) No Redemption. The shares of Series A Preferred
Stock shall not be redeemable.
(ix) Amendment. To the fullest extent permitted by
applicable law, prior to such time as shares of Series A
Preferred Stock are issued and outstanding, the Board of
Directors may alter or revoke any of the number of shares of
Series A Preferred Stock, the powers, preferences or special
rights of the Series A Preferred Stock or the other terms of the
Series A Preferred Stock. From and after such time as shares of
Series A Preferred Stock are issued and outstanding, the Restated
Articles of Incorporation of the corporation shall not be amended
in any manner that would materially alter or change the powers,
preferences or special rights of the Series A Preferred Stock so
as to affect them adversely without the affirmative vote of the
holders of at least two-thirds of the outstanding shares of
Series A Preferred Stock, voting together as a single class.
(x) Fractional Shares. Series A Preferred Stock may be
issued in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting
rights, receive dividends, participate in distributions and to
have the benefit of all other rights of holders of Series A
Preferred Stock.
B. COMMON STOCK.
(1) Dividends. Subject to the provisions of this Article III,
the Board of Directors may, in its discretion, out of funds legally
available for the payment of dividends and at such times and in such manner
as determined by the Board of Directors, declare and pay dividends on the
Common Stock.
(2) Liquidation Rights. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the corporation,
after there shall have been paid to or set aside for the holders of shares
of Preferred Stock the full preferential amounts to which they are
entitled, the holders of outstanding shares of Common Stock shall be
entitled to receive pro rata, according to the number of shares held by
each, the remaining assets of the corporation available for distribution.
(3) Voting Rights. Except as otherwise provided by law and
except as may be determined by the Board of Directors with respect to the
Preferred Stock pursuant to section A of this Article III, only the holders
of Common Stock shall be entitled to vote for the election of directors of
the corporation and for all other corporate purposes. Upon any such vote
the holders of Common Stock shall, except as otherwise provided by law, be
entitled to one vote for each share of Common Stock held by them
respectively.
C. PREEMPTIVE RIGHTS.
Except as the Board of Directors of the corporation may otherwise
determine from time to time, no shareholder of the corporation shall have
any preferential or preemptive right to subscribe for or purchase from the
corporation any new or additional shares of capital stock of the
corporation or securities convertible into shares of capital stock, whether
now or hereafter authorized.
D. REPURCHASE OF SHARES.
The corporation, subject to the conditions provided for herein,
shall have the express right to acquire and dispose of its own shares on
such terms and conditions as the Board of Directors may from time to time
determine and agree.
ARTICLE IV
BOARD OF DIRECTORS
A. POWERS, NUMBER, CLASSIFICATION AND NOMINATION.
The general powers, number, classification, and requirements for
nomination of directors shall be as set forth in sections 3.01, 3.02 and
3.03 of Article III of the By-Laws of the corporation (and as such sections
shall exist from time to time). Notwithstanding any other provisions of
these Restated Articles of Incorporation or the By-Laws of the corporation
(and notwithstanding the fact that a lesser affirmative vote may be
specified by law), the affirmative vote of shareholders possessing at least
seventy-five percent of the voting power of the then outstanding shares of
all classes of stock of the corporation generally possessing voting rights
in elections of directors, considered for this purpose as one class, shall
be required to amend, alter, change or repeal, or to adopt any provision
inconsistent with, such sections 3.01, 3.02 and 3.03 of Article III of the
By-Laws, or any provision thereof; provided, however, that the Board of
Directors, by a resolution adopted by the Requisite Vote (as defined
herein), may amend, alter, change or repeal, or adopt any provision
inconsistent with, sections 3.01, 3.02 and 3.03 of Article III of the By-
Laws, or any provision thereof, without the vote of the shareholders. As
used herein, the term "Requisite Vote" shall mean the affirmative vote of
at least two-thirds of the directors then in office plus one director.
B. REMOVAL OF DIRECTORS.
Any director may be removed from office, but only for "cause" (as
defined herein) by the affirmative vote of shareholders possessing at least
a majority of the voting power of the then outstanding shares of all
classes of stock of the corporation generally possessing voting rights in
elections of directors, considered for this purpose as one class; provided,
however, that if the Board of Directors by a resolution adopted by the
Requisite Vote shall have recommended removal of a director, then the
shareholders may remove such director from office by the foregoing vote
without cause. As used herein, "cause" shall be deemed to exist only if
the director whose removal is proposed has committed acts of fraud
constituting a felony and resulting in personal enrichment for the director
at the corporation's expense for which the director was duly and properly
indicated and such indictment is not dismissed within ninety (90) days of
issuance.
C. VACANCIES.
Any vacancy occurring in the Board of Directors, including a
vacancy created by an increase in the number of directors, shall be filled
by the affirmative vote of a majority of the directors then in office,
though less than a quorum of the Board of Directors, or by a sole remaining
director. Any director so elected shall serve until the next election of
the class for which such director shall have been chosen and until his
successor shall be duly elected and qualified.
D. AMENDMENTS.
(1) Notwithstanding any other provision of these Restated
Articles of Incorporation (and notwithstanding the fact that a lesser
affirmative vote may be specified by law), the affirmative vote of
shareholders possessing at least seventy-five percent of the voting power
of the then outstanding shares of all classes of stock of the corporation
generally possessing voting rights in elections of directors, considered
for this purpose as one class, shall be required to amend, alter, change or
repeal, or adopt any provision inconsistent with, the provisions of this
Article IV.
(2) Notwithstanding the foregoing and any provisions in the By-
Laws of the corporation, whenever the holders of any one or more series of
Preferred Stock issued by the corporation pursuant to Article III hereof
shall have the right, voting separately as a class or by series, to elect
directors at an annual or special meeting of shareholders, the election,
term of office, filling of vacancies and other features of such
directorships shall be governed by the terms of the series of Preferred
Stock applicable thereto, and such directors so elected shall not be
divided into classes unless expressly provided by the terms of the
applicable series.
ARTICLE V
BUSINESS COMBINATIONS
A. BUSINESS COMBINATIONS WITHIN THREE YEARS OF THE STOCK
ACQUISITION DATE.
In addition to any affirmative vote otherwise required by law,
the By-Laws of the corporation or these Restated Articles of Incorporation,
and except as otherwise expressly provided in section C of this Article V,
the corporation may not engage in a Business Combination (as herein-after
defined) with an Interested Shareholder (as hereinafter defined) for three
(3) years after the Interested Shareholder's Stock Acquisition Date (as
hereinafter defined) unless the Board of Directors of the corporation has
approved by resolution, before the Interested Shareholder's Stock
Acquisition Date, that Business Combination or the purchase of Stock (as
hereinafter defined) made by the Interested Shareholder on that Stock
Acquisition Date.
B. BUSINESS COMBINATIONS MORE THAN THREE YEARS AFTER THE STOCK
ACQUISITION DATE.
Except as otherwise expressly provided in section C of this
Article V, at any time after the three-year period described in section A
above the corporation may engage in a Business Combination with an
Interested Shareholder but only if, in addition to any affirmative vote
otherwise required by law, the By-Laws of the corporation or these Restated
Articles of Incorporation, any of the following conditions is satisfied:
(1) The Board of Directors of the corporation has approved,
before the Interested Shareholder's Stock Acquisition Date, the purchase of
Stock made by the Interested Shareholder on that Stock Acquisition Date.
(2) The Business Combination is approved by the affirmative vote
of the holders of a majority of the Voting Stock (as hereinafter defined)
not beneficially owned by the Interested Shareholder at a meeting called
for that purpose.
(3) The Business Combination meets all of the following
conditions:
(i) Holders of all outstanding shares of Stock of the
corporation not beneficially owned by the Interested Shareholder are
each entitled to receive per share an aggregate amount of cash and the
market value, as of the Consummation Date (as hereinafter defined), of
noncash consideration at least equal to the higher of the following:
(a) The highest of: the market value per share on the
Announcement Date (as hereinafter defined) with respect to the
Business Combination, the market value per share on the
Interested Shareholder's Stock Acquisition Date, the highest
price per share paid by the Interested Shareholder, including
brokerage commissions, transfer taxes and soliciting dealers'
fees, for shares of the same class or series within the three (3)
years immediately before the including the Announcement Date of
the Business Combination or the highest price per share paid by
the Interested Shareholder, including brokerage commissions,
transfer taxes and soliciting dealers' fees, for shares of the
same class or series within the three (3) years immediately
before and including the Interested Shareholder's Stock
Acquisition Date; plus, in each case, interest compounded
annually from the earliest date on which that highest per share
acquisition price was paid or the per share market value was
determined, through the Consummation Date, at the rate for one-
year U.S. Treasury obligations from time to time in effect; less
the aggregate amount of any cash and the market value, as of the
dividend payment date, of any noncash dividends paid per share
since that date, up to the amount of that interest.
(b) The highest preferential amount per share, if
any, to which the holders of shares of that class or
series of Stock are entitled upon the voluntary or
involuntary liquidation of the corporation, plus the
aggregate amount of dividends declared or due which
those holders are entitled to before payment of
dividends on another class or series of Stock, unless
the aggregate amount of those dividends is included in
the preferential amount.
(ii) The form of consideration to be received by holders of
each particular class or series of outstanding Stock in the
Business Combination is in cash or, if the Interested Shareholder
holds previously acquired shares of that class or series, the
same form as the Interested Shareholder previously used to
acquire the largest number of shares of that class or series.
C. EXCLUDED TRANSACTIONS.
The provisions of sections A and B of this Article V shall not
apply to any of the following:
(1) A Business Combination with an Interested Shareholder who
was an Interested Shareholder immediately before September 30, 1989, unless
subsequently the Interested Shareholder increased its beneficial ownership
of the voting power of the outstanding Voting Stock of the corporation to a
proportion in excess of the proportion of voting power that the Interested
Shareholder beneficially owned immediately before September 30, 1989,
excluding an increase approved by resolution of the Board of Directors of
the corporation before the increase occurred.
(2) A Business Combination of the corporation with an Interested
Shareholder which became an Interested Shareholder inadvertently, if the
Interested Shareholder satisfies both of the following:
(i) As soon as practicable divests itself of a sufficient
amount of the Voting Stock of the corporation so that the
Interested Shareholder is no longer the beneficial owner of at
least 10% of the voting power of the outstanding Voting Stock of
the corporation, or a Subsidiary of the corporation (as
hereinafter defined).
(ii) Would not at any time within the three (3) years before
the Announcement Date with respect to the Business Combination in
question have been an Interested Shareholder except for the
inadvertent acquisition.
(3) A Business Combination of the corporation with an Interested
Shareholder which was an Interested Shareholder immediately before
September 30, 1989, and inadvertently increased its beneficial ownership of
the voting power of the outstanding Voting Stock of the corporation to a
proportion in excess of the proportion of voting power that the Interested
Shareholder beneficially owned immediately before September 30, 1989, if
the Interested Shareholder divests itself of a sufficient amount of Voting
Stock so that the Interested Shareholder is no longer the beneficial owner
of a proportion of the voting power in excess of the proportion of voting
power that the Interested Shareholder held immediately before September 30,
1989.
D. DEFINITIONS.
For purposes of this Article V:
(1) "Affiliate" shall mean a person that directly, or indirectly
through one or more intermediaries, controls, is controlled by or is under
common control with a specified person.
(2) "Announcement Date" shall mean the date of the first public
announcement of a final, definitive proposal for a Business Combination.
(3) "Associate" of a person shall mean any of the following:
(i) A corporation or organization of which the person is an
officer, director or partner or is the beneficial owner of at
least 10% of any class of Voting Stock.
(ii) A trust or other estate in which the person has a
substantial beneficial interest or as to which the person serves
as trustee or in a similar fiduciary capacity.
(iii) A relative or spouse of the person, or a relative
of the spouse, who has the same principal residence as the
person.
(4) A person shall be deemed to be the "beneficial owner" of any
Stock:
(i) which such person or any of such person's Affiliates or
Associates beneficially owns, directly or indirectly;
(ii) which such person or any of such person's Affiliates or
Associates has (a) the right to acquire (whether such right is
exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement or understanding (other
than customary agreements with and between underwriters and
selling group members with respect to a bona fide public offering
of securities), or upon the exercise of conversion rights,
exchange rights, rights (other than rights issued by the
corporation pursuant to a shareholder rights plan), warrants or
options, or otherwise; provided, however, that a person shall not
be deemed the beneficial owner of securities tendered pursuant to
a tender or exchange offer made by or on behalf of such person or
any of such person's Affiliates or Associates until such tendered
securities are accepted for purchase or exchange; or (b) the
right to vote pursuant to any agreement, arrangement or
understanding; provided, however, that a person shall not be
deemed the beneficial owner of any security if the agreement,
arrangement or understanding to vote such security arises solely
from a revocable proxy or consent given to such person in
response to a public proxy or consent solicitation; or
(iii) which are beneficially owned, directly or indirectly,
by any other person with which such person or any of such
person's Affiliates or Associates has any agreement, arrangement
or understanding (other than customary agreements with and
between underwriters and selling group members with respect to a
bona fide public offering of securities) for the purpose of
acquiring, holding, voting (except to the extent contemplated by
the proviso to section D(4)(ii)(b) of this Article V) or
disposing of any securities of the corporation.
(5) "Business Combination" means any of the following:
(i) A merger or consolidation of the corporation or any
Subsidiary of the corporation with any of the following:
(a) An Interested Shareholder.
(b) A corporation, whether or not it is an
Interested Shareholder, which is, or after a merger or
consolidation would be, an Affiliate or Associate of an
Interested Shareholder.
(ii) A sale, lease, exchange, mortgage, pledge, transfer or
other disposition, in one transaction or a series of
transactions, to or with an Interested Shareholder or an
Affiliate or Associate of an Interested Shareholder of assets of
the corporation or a Subsidiary of the corporation if those
assets meet any of the following conditions:
(a) Have an aggregate market value equal to a
least 5% of the aggregate market value of all the
assets, determined on a consolidated basis, of the
corporation.
(b) Have an aggregate market value equal to at
least 5% of the aggregate market value of all the
outstanding Stock of the corporation.
(c) Represent at least 10% of the earning power
or income, determined on a consolidated basis, of the
corporation.
(iii) The issuance or transfer by the corporation or a
Subsidiary of the corporation, in one transaction or a series of
transactions, of any Stock of the corporation or a Subsidiary of
the corporation is all of the following conditions are satisfied:
(a) The stock has an aggregate market value equal
to at least 5% of the aggregate market value of all of
the outstanding Stock of the corporation.
(b) The Stock is issued or transferred to an
Interested Shareholder or an Affiliate or Associate of
an Interested Shareholder, except for Stock of the
corporation or such Subsidiary issued or transferred
pursuant to the exercise of warrants, rights or options
to purchase such Stock offered, or a dividend paid, or
distribution made, proportionately to all holders of
Stock of the corporation.
(iv) The adoption of a plan or proposal for the liquidation
or dissolution of the corporation which is proposed by, on behalf
of, or pursuant to a written or unwritten agreement, arrangement
or understanding with, an Interested Shareholder or an Affiliate
or Associate of an Interested Shareholder.
(v) Any of the following, if the direct or indirect effect is to
increase the proportionate share of the outstanding Stock of a class
or series of securities convertible into Voting Stock of the
corporation or a Subsidiary of the corporation beneficially owned by
the Interested Shareholder of an Affiliate or Associate of the
Interested Shareholder, unless the increase is the result of
immaterial changes due to fractional share adjustment:
(a) A reclassification of securities, including,
without limitation, a stock split, stock dividend or
other distribution of Stock in respect of Stock, or
reverse stock split.
(b) A recapitalization of the corporation.
(c) A merger or consolidation of the corporation
with a Subsidiary of the corporation.
(d) Any other transaction, whether or not with,
into or involving the Interested Shareholder, which is
proposed by, on behalf of, or pursuant to a written or
unwritten agreement, arrangement or understanding with,
the Interested Shareholder or an Affiliate or Associate
of the Interested Shareholder.
(vi) Receipt by an Interested Shareholder or an Affiliate or
Associate of an Interested Shareholder of the direct or indirect
benefit of a loan, advance, guarantee, pledge or other financial
assistance or a tax credit or other tax advantage provided by or
through the corporation or any Subsidiary of the corporation,
unless the Interested Shareholder receives the benefit
proportionately as a holder of Stock of the corporation.
(6) "Consummation Date" means the date of consummation of a
Business Combination.
(7) "Control", "controlled by" or "under common control with"
means the possession, directly or indirectly of the power to direct or
cause the direction of the management and policies of a person, whether
through the ownership of Voting Stock, except as provided in the next
sentence, by contract, or otherwise. "Control" of a corporation is not
established for purposes of this Article V if a person, in good faith and
not for the purpose of circumventing this Article V, holds voting power as
an agent, bank, broker, nominee, custodian or trustee for one or more
beneficial owners who do not individually or as a group have control of the
corporation. For purposes of this Article V, a person's beneficial
ownership of at least 10% of the voting power of a corporation's
outstanding Voting Stock creates a presumption that the person has control
of the corporation.
(8) (i) "Interested Shareholder," with respect to the
corporation, means a person other than the corporation or a
Subsidiary of the corporation that meets any of the following
conditions:
(a) Is the beneficial owner of at least 10% of
the voting power of the outstanding Voting Stock of the
corporation.
(b) Is an Affiliate or Associate of the corporation and at
any time within three (3) years immediately before the date in
question was the beneficial owner of at least 10% of the voting
power of the then outstanding Voting Stock of the corporation.
(ii) For the purpose of determining whether a person is an
Interested Shareholder, the number of shares of Voting Stock of the
corporation considered outstanding includes shares beneficially owned
by the person but does not include any other unissued shares of Voting
Stock of the corporation which may be issuable pursuant to an
agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
(9) "Stock" means any of the following:
(i) Shares, stock or similarly security, certificate of
interest, participation in a profit sharing agreement, voting
trust certificate, or certificate of deposit for any of the items
described herein.
(ii) Security which is convertible, with or without
consideration, into stock, or any warrant, call or other option
or privilege of buying stock, or any other security carrying a
right to acquire, subscribe to or purchase stock.
(10) "Stock Acquisition Date", with respect to any person, means
the date that that person first becomes an Interested Shareholder of the
corporation.
(11) "Subsidiary of the corporation" shall mean any other
corporation of which Voting Stock having a majority of the votes entitled
to be cast is owned, directly or indirectly, by the corporation.
(12) "Voting Stock" means capital stock of a corporation entitled
to vote generally in the election of directors.
E. DETERMINATION OF MARKET VALUE.
For purposes of this Article V, the market value of Stock or
other property other than cash or Stock is determined as follows:
(1) In the case of Stock generally, by:
(i) The highest closing sale price during the
thirty (30) days immediately before the date in
question of a share of that class or series of Stock on
the composite tape for stocks listed on the New York
Stock Exchange, or, if that class or series of Stock is
not quoted on the composite tape or if that class or
series of Stock is not listed on the New York Stock
Exchange, on the principal U.S. securities exchange
registered under the Securities Exchange Act of 1934,
as amended, on which that class or series of Stock is
listed.
(ii) If that class or series of Stock is not
listed on an exchange described above, the highest
closing bid quotation for a share of that class or
series of Stock during the thirty (30) days immediately
before the date in question on the National Association
of Securities Dealers Automated Quotation System, or
any similar system then in use.
(2) In the case of property other than cash or Stock (except for
Stock not traded as provided above), the fair market value of the property
or Stock on the date in question as determined in good faith by the Board
of Directors of the corporation.
F. FIDUCIARY OBLIGATIONS.
Nothing contained in this Article V shall be construed to
relieve any Interested Shareholder from any fiduciary obligation imposed by
law.
G. AMENDMENT.
Notwithstanding any other provisions of these Restated Articles
of Incorporation (and notwithstanding that a lesser affirmative vote may be
specified by law), the affirmative vote of shareholders possessing at least
seventy-five percent of the voting power of the then outstanding Voting
Shares, considered for this purpose as one class, shall be required to
amend, alter, change, repeal, or adopt any provision inconsistent with this
Article V.
ARTICLE VI
REGISTERED OFFICE AND AGENT
At the time of adoption of these Restated Articles of
Incorporation the address of the registered office of the corporation is
143 Water Street, West Bend, Wisconsin 53095, in Washington County. The
name of the registered agent at such address is Michael J. Mulcahy.
ARTICLE VII
AMENDMENTS
Except as otherwise provided herein, these Restated Articles may
be amended at any regular or special meeting of the shareholders of the
corporation by the affirmative vote of shareholders possessing at least
two-thirds (2/3) of the voting power of all then outstanding shares
entitled to vote thereon.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from Gehl
Company's consolidated balance sheet at June 28, 1997 and consolidated
statements of income for the six month period ended June 28, 1997 and is
qualified in its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-1-1997
<PERIOD-END> JUN-28-1997
<CASH> 6576
<SECURITIES> 0
<RECEIVABLES> 71235
<ALLOWANCES> 0<F1>
<INVENTORY> 17579
<CURRENT-ASSETS> 101166
<PP&E> 59928
<DEPRECIATION> 36407
<TOTAL-ASSETS> 134212
<CURRENT-LIABILITIES> 38884
<BONDS> 19989<F2>
<COMMON> 620
0
0
<OTHER-SE> 70672
<TOTAL-LIABILITY-AND-EQUITY> 134212
<SALES> 95267
<TOTAL-REVENUES> 95267
<CGS> 66737
<TOTAL-COSTS> 66737
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 927
<INCOME-PRETAX> 10022
<INCOME-TAX> 3608
<INCOME-CONTINUING> 6414
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 6414
<EPS-PRIMARY> 1.00
<EPS-DILUTED> 0<F3>
<FN>
<F1>Company presents receivables on a net basis in compliance with Article 10
of Regulation S-X.
<F2>Includes all non-current portion of debt obligations
<F3>Not reported
</FN>
</TABLE>
